TMI Blog2019 (8) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... n 264. This Court is informed that as of now there is no intra-court appeal against the said order and therefore, the said order is operating. The circumstances and facts are also more or less similar. The principle nonetheless applies. From a perusal of Section 8 it comes to light that exercise of powers of respondent u/s 25 is clearly comparable with exercise of powers of Pr. CIT/CIT u/s 264. Owing to all that have been set out supra, it follows as a sequitur that this is a fit case to set aside Impugned Order I. Impugned order I being order dated 10.08.2018 is set aside and Writ Petition No.28432 of 2019 is allowed. With regard to Impugned Order II, the same is set aside insofar as it rejects the writ petitioner's request for condonation of delay for Assessment years 2003-04 to 2010-2011. The other part of impugned order II wherein prayer for condonation of delay for Assessment Years 2011-12 and 2012-13 was acceded to is sustained. Now that the delay has been condoned, request of writ petitioner for refund shall be examined on merits, in accordance with law and disposed of as expeditiously as possible and in any event within 12 weeks from the date of receipt of a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was delay in the writ petitioners approaching the sole respondent, who is the Revisional Authority. 9. Vide 'order dated 10.08.2018 bearing reference C.No.205/Pr.CIT-1/2017-18' (hereinafter 'Impugned order I' for brevity), respondent rejected the writ petitioner's request for condonation of delay with regard to all AYs i.e., said AYs or in other words for the 10 AYs 2003-04 to 2012-13. Vide 'order dated 26.12.2018 bearing reference No.PCIT-5/ITO (HQ)/VB/10(2)(b)/2/2018-19 ' ('Impugned order II' for brevity), respondent rejected the assessee's request for condonation of delay with regard to AYs 2003-04 to 2010-2011, but allowed the assessee's request for condonation of delay with regard to AYs 2011-12 and 2012-13. 'Impugned order I and Impugned order II' shall collectively be referred to as 'impugned orders' in plural and 'impugned order' in singular wherever it is appropriate. Assailing the impugned orders instant writ petitions have been filed. 10. To be noted, Impugned order I has been assailed in W.P.No.28432 of 2018 and Impugned order II has been assailed in W.P.No.4754 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turns the commercial establishments and the residential house property which had been let out for a minimum period of 300 days during the relevant previous year. Such assets are exempt in terms of provisions of section 2(ea)(1) of the Act. The reason proffered is the lack of familiarity with the legal provisions. The overall claim of refund of ₹ 11,13,973/- spans ten assessment years for AYs 2003-04 to 2012-13. At the outset, I am absolutely in agreement with the contention of the WTO that no condonation can be entertained beyond a period of six years from the end of the assessment year for which the petition for condonation has been made. As the petition has been made by the assessee on 25th January 2018, the only claims which can be considered in her case relate to AYs 2011-12 and 2012- 13, the claims of refund for which are seen to be ₹ 1,63,927/- and ₹ 2,67,619/- totalling ₹ 3,89,592/-. Before proceeding further, it needs to be understood that we have an assessee here who has filed her returns of wealth and over-reported her wealth due to her lack of familiarity with the provisions of the law. It is important to note that this is not a case of either und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er delay in a given case deserves to be condoned. As this cannot be the sole determinant, this Court has considered the same as one of the buttressing features in search of an answer to the question as to whether delay is condonable / can be condoned in the instant cases. 19. As already mentioned supra, Section 25 of said Act is akin to Section 261 of IT Act. This Court has already passed an order dated 28.06.2019 in W.P.No.7630 of 2019 with regard to condonation of delay in a matter pertaining to Section 264 of IT Act. This Court is informed that as of now there is no intra-court appeal against the said order and therefore, the said order is operating. 20. The circumstances and facts are also more or less similar. The principle nonetheless applies. 21. Relevant portions of the aforesaid order dated 28.06.2019 in W.P.No.7630 of 2019 being Ramupillai Kuppuraj Vs. The Income Tax Officer and others , are contained in Paragraphs 19 to 30 and the same read as follows: '19 This takes the discussion in this order to the next case law, namely, Vinay Extraction Pvt. Limited case, which is a judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which would include showing that the petitioner/appellant was either bona fide pursuing his remedies or was prevented by sufficient cause from pursuing his remedies. Whether sufficient cause is made out or not is always a question of fact depending upon the facts and circumstances of each case and has to be established on record. .... 21 In this case, Division Bench of Gujarat High Court had gone a step further and held that the judgments of Courts are not to be read as Euclid's theorems nor the observations therein as provisions of Statutes. The Division Bench has held that observations in a judgment must be read in the context in which they appear and that each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. The Division Bench of Gujarat High Court had quoted Cardozo and held that matching the colour of one case against the colour of another cannot be the basis for precedents. This is articulated in paragraph 9 of Vinay Extraction Pvt. Limited case and this Court deems it appropriate to extract the entire paragraph 9 which reads as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24 Drawing inspiration from Vinay Extraction Pvt. Limited case and Padma Sundara Rao case, this Court is of the considered view that such an exercise of applying precedents is neither an algorithms nor an alchemy qua factual matrix and legal principles. 25 This takes us to the next case law, namely, H.Dohil Constructions Company Private Limited Vs. Nahar Exports Limited and another reported in (2015) 1 SCC 680 . Nahar Exports Limited case is a case wherein there was nine days delay in filing, but there was 1727 days in refiling. In this context, the issue of deficit court fee was also inextricably dovetailed and an argument was projected that section 149 of 'The Code of Civil Procedure, 1908' ('CPC' for brevity) provides for deficit court fee to be paid. It is in this context that Hon'ble Supreme Court held that condonation of delay is impermissible obviously on the factual matrix of that case. Therefore, in the considered opinion of this Court, Nahar Exports Limited case is clearly distinguishable on facts and is therefore, not applicable to the instant case. 26 This takes us to Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principle, this is a case where the facts and chronicle of the same were undisputably available as part of records before third respondent who passed the impugned order. This is not a case where records did not speak for themselves with regard to relentless efforts taken by writ petitioner which in turn explained what is being construed as delay. 30 Besides the aforementioned five case laws set out supra, impugned order also refers to a Bombay High Court judgment being Manoj Kumar Kedia Vs. Pr. Commissioner of Income Tax [2016-LL-0811-29] in W.P.No.1616 of 2016 . However, Revenue counsel fairly submitted that it is not traceable. Learned counsel for writ petitioner submitted that his position is no different. This Court was unable to find it in its research also and therefore, this Court has not embarked upon discussion on Manoj Kumar Kedia case as the entire case law should be before this Court for any discussion on the same. Be that as it may, to be noted, being a Bombay High Court citation with regard to precedents, it would be of persuasive value.' 22. Besides Section 264 of IT Act being akin to Section 25 of said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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