Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

M/s. BETA CASHEWS AND ALLIED PRODUCTS PVT. LTD. Versus THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM AND THE INCOME TAX OFFICER, WARD-I, KOLLAM

2016 (7) TMI 927 - KERALA HIGH COURT

Condonation of delay - Held that:- When an assessee is suffering huge losses for over a period of time, it has to be assumed that they have genuine hardship and that genuine hardship can be redressed or avoided only on payment of the amount which is legally due to them. Of course, the delay is also a matter which is required to be considered by the Commissioner while directing refund of the amount. Section 119 (2) (b) clearly indicates that if it considers desirable or expedient so to do, author .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

It is stated that in the subsequent years, returns were filed belated. That by itself cannot be a reason to arrive at a finding as to whether there is any hardship caused to the assessee or not. In the case on hand, it is demonstrated by the material placed that the assessee company was suffering huge losses. In the said circumstances, if the amount claimed is not refunded, definitely their losses will be much more than what is computed presently. In the said circumstances, it would have been a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e assessee is before this Court challenging the said order inter alia contending that the first respondent had failed to consider the application in its proper perspective. The statute provides for a Company to file an application to condone delay for refund. Petition is not filed within the prescribed period. It is stated that the only consideration that is required is to find out whether there was genuine hardship, in which event the delay ought to have been condoned. It is submitted that the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

tatement has been filed on behalf of the respondents supporting the stand taken in the matter. It is contended that the petitioner has even delayed the returns for subsequent years, which also has been taken note of while considering whether there is any genuine hardship, caused to the petitioner warranting condonation of delay. 3. Section 119 (2) (b) reads as under:- 119.(2): Without prejudice to the generality of the foregoing power: - (b) the Board may, if it considers it desirable or expedie .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ments including Sitaldas K. Motwani v. Director General of Income Tax (International Taxation) & Ors. [2010 (323) ITR 223]. In that case, the Bombay High Court has taken a view that while considering Section 119 (2) (b), the authorities are expected to bear in mind that ordinarily the applicant applying for condondation of delay, does not stand to benefit by lodging its claim late and if the refund is legitimately due to the applicant, mere delay should not defeat the claim for refund. It is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t referred to herein above and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ies should be justice oriented so as to advance cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund. 16. Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine the merits of the refund claim closely and come to a conclusion that the applicant's claim is bound to succeed. This would amount to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n in question and not whether that was the only conclusion which could be arrived at on that evidence. Still further in paragraph 5 of Pala Marketing Co-operative Society Ltd v. Union of India [2009 (311) ITR 177], learned Single Judge of this Court in Paragraph 5 held as under: 5. So far as the merits of the assessee's claim for condonation of delay is concerned, I find the assessee is bound to get its accounts audited under s.64 of the Cooperative Societies Act. The delay in audit by the a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ort from auditor is required and even thereafter the audit report prepared by auditor appointed under the special statute could be submitted. Besides showing sufficient cause for delay in filing the return for refund, assessee its also established its case of genuine hardship inasmuch as it has suffered losses in the five succeeding years. The genuine hardship contemplated under s. 119 (2) (b) obviously is financial hardship caused to the assessee if delay is not condoned. If delay in this case .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rom the date of production of copy of this judgment by the petitioner. 5. Learned Standing Counsel appearing for the respondent however, submits that each case will have to depend upon its own facts. It is argued that in this particular case, the petitioner has consistently delayed filing the returns and seeking refund of claim. Such a person is not entitled for condonation delay. Therefore, it is contended that the challenge to Ext.P4 is not sustainable. 6. Ext.P1 is the application submitted b .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issued for the corresponding year. It is therefore relevant to note that the total amount which is sought to be refunded is more than ₹ 6 lakh. Ext.P3 is submitted to the Commissioner of Income Tax, wherein the petitioner had given all details regarding the loss that they had suffered over a period of time. 7. Having regard to the aforesaid submission, I am of the view that when an assessee is suffering huge losses for over a period of time, it has to be assumed that they have genuine hard .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     bird's eye view     ↓  


|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version