TMI Blog2024 (1) TMI 1039X X X X Extracts X X X X X X X X Extracts X X X X ..... lication made by assessee to call for the record of any proceedings under the Act and pass such order thereon not being an order prejudicial to assessee and this power has been conferred upon the Commissioner in order to enable him to give relief to the assessee in cases of overassessment. As observed by the Hon ble Gujarat High Court in Digvijay Cement Co. Ltd. [ 1993 (9) TMI 23 - GUJARAT HIGH COURT] the power conferred on commissioner is wider in terms. The revisional power is coupled with a duty to exercise it in the interests of justice of the parties and the revisional authority must act according to the rules of reason and justice. Therefore, the commissioner having been conferred the power to condone the delay to do substantial justice to parties by disposing the matter on merits should have, considering the facts and circumstances of the case, in particular that it took a long time for the CIT(A) to dispose petitioner s appeal, ought to have condoned the delay. Whether intimation under Section 143(1) of the Act is not an assessment order? - As decided in Smita Rohit Gupta [ 2023 (9) TMI 220 - BOMBAY HIGH COURT] provisions of Section 264 and the power available ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were included as chargeable to FBT out of abandunt caution and that the same should not be chargeable to FBT. Similar claim was made for AY-2007-08. For AY-2007-08, the Assessing Officer (AO) did not allow these claims. On appeal, the Commissioner of Income Tax (Appeals) (CIT)(A), by an order dated 31st August 2016, allowed those claims of assessee. Since the CIT(A) allowed those claims, petitioner filed an application under Section 264 of the Act for refund of the FBT return. On the issue of delay, it is petitioner s case that there was no delay because only when the CIT(A) allowed the appeal, it was ascertained that the amounts included in the FBT returns were not chargeable to FBT. The fact that CIT(A) took almost 5 or 6 years to decide assessee s appeal, cannot be held to the prejudice of assessee. It was also submitted that application for condonation of delay should be liberally considered. It was submitted by Mr. Jain that a litigant does not stand to benefit by lodging the appeal or an application late and refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. Mr. Jain submitted that again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made by assessee to call for the record of any proceedings under the Act and pass such order thereon not being an order prejudicial to assessee and this power has been conferred upon the Commissioner in order to enable him to give relief to the assessee in cases of overassessment. As observed by the Hon ble Gujarat High Court in Digvijay Cement Co. Ltd. vs. CIT (1994) 210 ITR 797 (Guj), the power conferred on commissioner is wider in terms. The revisional power is coupled with a duty to exercise it in the interests of justice of the parties and the revisional authority must act according to the rules of reason and justice. 7. It will be useful to reproduce paragraphs 9 and 10 of an order of this court in Octra Health Private Limited Vs. Additional Commissioner of Income Tax (HQ) Pune Ors. Writ Petition No. 15544 of 2023 dated 19th December 2023 (unreported), which read as under: 9. While considering the genuine hardship, the PCCIT was not expected to consider a solitary ground as to whether the assessee was prevented by any substantial cause from filing the corrections within a due time. Other factors also ought to have been taken into account. The phrase gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder : Genuine means not fake or counterfeit, real, not pretending (not bogus or merely a ruse) . 17. ****** 18. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well-known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind..... (p. 624). The Gujarat High Court in the case of Gujarat Electric Co. Ltd. (supra) was pleased to hold as under: ... The Board was not justified in rejecting the claim for refund on the ground that a case of genuine hardship was not made out by the petitioner and delay in claiming the relief was not satisfactorily explained, more particularly when the returns could not be filed in time due to the ill health of the officer who was looking after the taxation matters of the petitioner.... (p. 737). The Madras High Court in the case of R. Seshammal (P.) Ltd. (supra), was pleased to observe as under: This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the requirements of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine 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 prejudging the case on merits. All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. At this stage, the authority is not expected to go deep into the niceties of law. While determining whether refund claim is correct and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. 17. Having said so, turning to the facts of the matter giving rise to the present petition, we are satisfied that respondent No. 1 did not consider the prayer for condonation of delay in its proper perspective. As such, it needs consideration afresh. 10. This was followed by this Court in Artist Tree (P.) Ltd. v. Central Board of Direct Taxes [2014] 52 taxmann.com 152 (Bombay), relied upon by Mr. Walve, where paragraph nos. 19, 21 and 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the part of the applicant. 23. In light of the aforesaid discussion, we are of the opinion that an acceptable explanation was offered by the petitioner and a case of genuine hardship was made out. The refusal by the CBDT to condone the delay was a result of adoption of an unduly restrictive approach. The CBDT appears to have proceeded on the basis that the delay was deliberate, when from explanation offered by the petitioner, it is clear that the delay was neither deliberate, nor on account of culpable negligence or any mala fides. Therefore, the impugned order dated 16 May 2006 made by the CBDT refusing to condone the delay in filing the Return of Income for the Assessment Year 1997-98 is liable to be set aside. Consistent with the provisions of Section 119(2)(b) of the said Act, the concerned I.T.O. or the Assessing Officer would have to consider the Return of Income and deal with the same on merits and in accordance with law. 8. It will be also useful to reproduce paragraphs 11 and 12 of M/s EBR Enterprises Anr. Vs. Union of India through Secretary Ors. 2017(12) TMI 425 Bombay High Court, which read as under: 11. Coming back to the impugned Order, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould have, considering the facts and circumstances of the case, in particular that it took a long time for the CIT(A) to dispose petitioner s appeal, ought to have condoned the delay. 10. On the second part of the impugned order that intimation under Section 143(1) of the Act is not an assessment order, this court in Smita Rohit Gupta Vs. Principal Commissioner of Income Tax-1 Ors. 2023 SCC online Bom 1861 held in paragraphs 6 to 10 as under: 6. Mr. Manwani relying upon judgment of the Hon'ble Apex Court in ACIT v Rajesh Jhaveri Stock Brokers (P) Ltd. (161 taxmann 316 (SC) submitted that since Petitioner had filed returns under Section 139 and that was processed under Section 143(1) of the Act, that processing order will not be an order and, therefore, Respondent No.1 was justified in not entertaining application under Section 264 of the Act. 7. In our view, judgment of the Hon'ble Apex Court in Rajesh Jhaveri (Supra) will not be applicable to the facts and circumstances of the case because that was a case where the Court was considering the provisions of Section 147 for re-opening the assessment. The Court was considering whether the question of chang ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t subject to the power of the Assessing Officer to make adjustments under Section 143(1) of the Income-tax Act. Therefore, relief can be granted to the assessee under Section 264 even if the power of adjustment under Section 143(1) is taken away from the Assessing Officer. (emphasis supplied) 9. Section 264 of the Act also came up for consideration before the Hon'ble Delhi High Court in Vijay Gupta v CIT Delhi-III [2016] 68 taxmann.com 131 (Delhi) where paragraph 35 reads as under: 35 . From the various judicial pronouncements, it is settled that the powers conferred under Section 264 of the Act are very wide. The Commissioner is bound to apply his mind to the question whether the petitioner was taxable on that income. Since Section 264 uses the expression any order , it would imply that the section does not limit the power to correct errors committed by the subordinate authorities but could even be exercised where errors are committed by assessees. It would even cover situations where the assessee because of an error has not put forth a legitimate claim at the time of filing the return and the error is subsequently discovered and is raised for the first time ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
