TMI Blog1998 (7) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... n both the petitions and it would, therefore, be appropriate to decide both the petitions by a common judgment. It is the case of the petitioner in the first petition (SCA No. 5305 of 1991) that she was an old lady of about 78 years at the time when the writ petition was filed. She was a partner in the firm of Synthetic Resin and Adhesive Industries, which was a loss making concern and was declared as a sick unit. The petitioner was assessed to income-tax since last several years. The petitioner paid a sum of Rs. 14,300 as advance tax for the assessment year 1982-83, but on account of various unavoidable factors, she could not file her return of income for the assessment year 1982-83. She also could not file the returns of income for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of the appellant for the assessment year 1982-83 under the Amnesty Scheme and may be further directed to grant the refund of excess advance tax paid by the appellant. (ii) In the alternative, the learned Income-tax Officer may please be directed to issue refund to the appellant under the provisions of section 119(2)(b) of the Income-tax Act, 1961. The appellant respectfully submits that she fulfils all the conditions laid down under the Board's Circular No. 521, dated August 17, 1988, except that the amount of refund exceeds Rs. 10,000. (iii) The appellant prays before your honour that looking to the facts and circumstances of the case she is legally entitled to the refund of taxes and her claim be accepted either under the Amnesty S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first respondent has committed an error of law in rejecting application and in not granting refund. He submitted that the case was covered under the Amnesty Scheme and appropriate relief ought to have been granted to the petitioners. Mr. Soparkar further submitted that even if the authorities were of the view that the case was not under the Amnesty Scheme, section 119(2)(b) enjoined the Board to pass air appropriated order in accordance with law regarding refund by considering tire facts and circumstances in the submission of the returns after the stipulated period was over and to pass appropriate order by recording reasons. He submitted that the power conferred on the Board is a "power coupled with duty" and as the return could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not covered by the Amnesty Scheme. Nothing was pointed out as to how the said scheme was applicable to the cases of the petitioners. That contention, therefore, cannot be accepted. We, however, see considerable force in the alternative argument of Mr. Soparkar. As extracted above, the orders are cryptic in nature and except stating that the Board declined to interfere in the matter, no reason or ground whatsoever has been recorded in support of the decision. Even if the Amnesty Scheme is not applicable to the cases on hand, from the application made by the petitioners, it is clear that the Board was also requested to exercise power under clause (b) of sub section (2) of section 119 of the Act and it was incumbent on the Board to cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... required to be quashed and set aside. Mr. Soparkar, strenuously contended that before passing the impugned order, it was obligatory on the part of the Board not only to observe the principles of natural justice by passing a speaking order but before passing such order, it was to afford an opportunity of hearing to the assessee. For that, reliance was placed on a decision of the High Court of Karnataka in H. S. Anantharamaiah v. CBDT [1993] 201 ITR 526. According to him, a similar question arose before the court and in similar circumstances, under section 119(2)(b), the High Court held that since the power of the Board to condone delay is quasi-judicial in nature, it was incumbent on the part of the Board to extend an opportunity of hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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