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TMI Blog2018 (2) TMI 309X X X X Extracts X X X X X X X X Extracts X X X X ..... was in respect of the refund of income tax for the assessment year 2004-2005. The second petition is filed by the same petitioner in respect of assessment year 2005-2006. Both the sides are heard. 2) The petitioner is a Private Limited Company and it had prayed for refund of excess income tax paid by it for the aforesaid assessment years. As there was the delay caused in filing the claims, the claims were filed along with applications for condonation of delay. The Commissioner of Income Tax has considered various Circulars of the Board and also the instructions. The Commissioner has held that the conditions given in the Circulars and the instructions are not fulfilled and further it is not a fit case for condonation of delay under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded from the computation of MAT. It is contended that if this amount was excluded, it could have shown business loss of Rs. 73,34,378/- for the assessment year 2004-05. The petitioner-company had actually shown the book profit of Rs. 64,53,855/- for the assessment year 2005-06. It is contended that as the petitioner was entitled to carry forward the losses, for the assessment year 2005-06 the book profit under section 115JB would have been nil. 4) It is the case of the petitioner-company that as it was sick industry, it could not submit its application within time prescribed for rectification or filing of revised returns and the mistake was detected late and so the delay was caused. Thus, the petitioner-company had prayed for refund of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to admit application or claim for such relief, after the period specified by or under the Act, the Commissioner ought to have exercised such power and ought to have condoned the delay. It is already observed that the Commissioner has touched the merits of the claim also by referring some Circulars and instructions issued by the Board and has held that the benefit given under those Circulars and the instructions cannot be given in the present matter. Further, the reason given for the delay also is not acceptable. On the previous occasion also there was certificate of the C.A. and admittedly the petitioner had shown the aforesaid amount like remission in principal amount of the term loan in profit and loss account and the book profit of more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s tax deducted at source, collected at source and payment of advance tax made under the provisions of Chapters XVII-B, XVII-BB and XVII-C respectively and the amount of refund does not exceed Rs. one lakh for any assessment year. Thus, the self assessment was not included in this order issued by the Board. It appears that subsequently on 9-6-2015 order came to be issued by the Board in which the category of self assessment tax was included in the order which can be made by the Board under section 119(2)(b) of the Income Tax Act. Thus, the order came in existence subsequently and the Commissioner had no power to condone delay on the date when the order was made on the application filed by the present petitioner. 10) The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... end that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax. In the result, both the petitions stand dismissed. X X X X Extracts X X X X X X X X Extracts X X X X
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