TMI Blog2004 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... he court was delivered by N.K. Sud J. - The petitioner in this writ petition had filed a refund claim for the assessment year 1995-96 under section 237 of the Income-tax Act, 1961 (for short "the Act"). Since the claim was made after the period of limitation prescribed in section 239 of the Act, he moved an application for condonation of delay under section 119(2)(b) of the Act which has been rejected by the Central Board of Direct Taxes (for short "the Board") without assigning any reasons vide order dated May 25, 2003 (annexure P-1). The petitioner impugns this order. When the matter came up for motion hearing before a Division Bench of which one of us (N.K. Sud J.) was a member, a decision of another Division Bench of this court in Niranjan Dass v. CBDT [2004] 266 ITR 489, was relied upon to contend that the mandatory provisions of section 239 of the Act were not amenable to relaxation by the Board through instructions under section 119 of the Act. Interestingly, learned counsel for the assessee as well as the Revenue contended that section 119(2)(b) of the Act specifically conferred such powers on the Board which had not been specifically noticed in Niranjan Dass [2004] 266 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act, which is pan materia with the provisions of section 5 of the Limitation Act and empowers the Board to admit a belated claim of refund under certain circumstances. Mr. Rajesh Bindal, learned counsel for the Revenue, contended as follows: Section 119(2)(b) of the Act specifically provides that the Board may, if it considers desirable or expedient so to do, for avoiding genuine hardship in any case or class of cases, authorise the authority to admit an application for refund after the expiry of the specified period. The powers have been delegated to the Board under section 119 of the Act with a view to tone down the rigour of the law and ensure fair enforcement of the provision. This power is exercisable for the benefit of the assessee. He placed reliance on the decisions of the apex court in Union of India v. Azadi Bachao Andolan [2003] 263 ITR 706 and UCO Bank v. CIT [1999] 237 ITR 889. He also placed reliance on the decision of the Karnataka High Court in Associated Electro Ceramics v. Chairman, CBDT [1993] 201 ITR 501, wherein the contention of the Revenue that if no power had been granted to an Income-tax Officer or any other officer to condone the delay in making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been conferred on the Assessing Officer to entertain a claim for refund after the period prescribed thereunder. The question, however, before us is whether the Board has the power to admit a belated claim of refund or not. For this purpose, reference has to be made to section 119 of the Act, which reads as under: "119. (1) The Board may, from time to time, issue such orders, instructions and directions to other income-tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Commissioner (Appeals) in the exercise of his appellate functions. (2) Without prejudice to the generality of the foregoing power,- (a) the Board may, if it considers it necessary or expedient so to do, for the purpose of proper and efficient management of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act by issuing general or special orders if it considers it necessary or expedient to do so for the purpose of proper and efficient management of the work of assessment. At page 727, the Supreme Court has held as under: "Section 119, strategically placed in Chapter XIII which deals with 'income-tax authorities' is an enabling power of the Central Board of Direct Taxes, which is recognised as an authority under the Income-tax Act under section 116(a). The Central Board of Direct Taxes under this section is empowered to issue such orders, instructions and directions to other income-tax authorities 'as it may deem fit for proper administration of this Act'. Such authorities and all other persons employed in the execution of this Act are bound to observe and follow such orders, instructions and directions of the Central Board of Direct Taxes. The proviso to sub-section (1) of section 119 recognises two exceptions to this power. The first, that the Central Board of Direct Taxes cannot require any income-tax authority to make a particular assessment or to dispose of a particular case in a particular manner. The second, is with regard to interference with the (discretion of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng observations made in UCO Bank v. CIT [1999] 237 ITR 889: "Such instructions may be by way of relaxation of any of the provisions of the sections specified there or otherwise. The Board thus has power, inter alia, to tone down the rigour of the law and ensure a fair enforcement of its provisions, by issuing circulars in exercise of its statutory powers under section 119 of the Income-tax Act which are binding on the authorities in the administration of the Act. Under section 119(2)(a), however, the circulars as contemplated therein cannot be adverse to the assessee. Thus, the authority which wields the power for its own advantage under the Act is given the right to forgo the advantage when required to wield it in a manner it considers just by relaxing the rigour of the law or in other permissible manners as laid down in section 119. The power is given for the purpose of just, proper and efficient management of the work of assessment and in public interest. It is a beneficial power given to the Board for proper administration of fiscal law so that undue hardship may not be caused to the assessee and the fiscal laws may be correctly applied. Hard cases which can be properly categ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res with the course of assessment of any particular assessee nor with the discretion of the Commissioner of Income-tax (Appeals) which, according to the Supreme Court in Azadi Bachao Andolan [2003] 263 ITR 706, is the only restriction on the powers of the Board under section 119 of the Act. The matter can be looked at from another angle as well. Section 5 of the Limitation Act, 1963, permits the admission of an application beyond the period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within such period. This provision has general application. However, a departure to this general rule is made in section 29(2),of the said Act, which reads as under: (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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