TMI Blog2024 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in case of Gujarat Electricity Company Limited [ 2001 (1) TMI 10 - GUJARAT HIGH COURT ] has held that 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 refund 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. As it is not in dispute that the petitioner is entitled to the refund of the amount which represents the tax deducted at source from the income of his late father and in absence of any outstanding dues of the late father of the petitioner, the said amount is liable to be refunded by the respondent-Authority as per the provisions of the Income Tax Act. Denial on the part of the respondent No. 1 to condone the delay in filing the return of income by the petitioner either in name of his father or in his individual name ought to have been permitted and the respondent-Authority ought to have examined such claim on merits and if it is found to be genuine, the petitioner is entitled to the refund with statutory inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Department. 3.4. After the death of late Shri Uttamchand Rathod, the petitioner took over the business of commission agent of his father and it was not possible for him to file income tax return for Assessment Year 2017-18 as there was claim in the refund for the said period on account of the tax deducted at source amounting to Rs. 6,93,310/-. The petitioner therefore preferred an application under Section 119(2)(b) of the Act on 11.04.2018. The respondent No. 2-Assessing Officer issued a notice to the petitioner on 03.05.2018 requesting various details which were submitted by the petitioner on 10.05.2018 and 18.07.2018. Thereafter, further details were called for by the respondent No. 2 which were also submitted by the petitioner. 3.5. The respondent No. 1-Principal Commissioner of Income Tax (for short PCIT ) passed an impugned order on 16.10.2023 under Section 119(2)(b) of the Act rejecting the application for waiver of time limit for filing of the return for Assessment Year 2017- 18 and intimation letter dated 19.10.2023 was issued. 4.1. Learned advocate Mr. Sudhir Mehta for the petitioner submitted that the respondent No. 1-PCIT ought to have condoned the delay in filing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t entitled to file the return in name of his late father as, as per the provisions of the Act, the legal heir is permitted to file return of income only for Assessment Year of the previous year in which the assessee has expired and therefore the return of income filed by the petitioner for Assessment Year 2016-17 was accepted by the Department, however, the petitioner could not have filed the return of income for Assessment Year 2017-18 as a legal heir of his late father but he ought to have filed the return of income as a legal heir in his individual capacity to claim the refund. It was therefore submitted that on both counts, the respondent No. 1 has rightly not condoned the delay for filing the return for Assessment Year 2017-18 by the petitioner. 6. Having considered the submissions made by both the sides and in view of the provisions of Section 119(2)(b) of the Act, which indicates that once the petitioner has filed the return for Assessment Yer 2016-17, then he ought to have filed return for Assessment Year 2017-18 and without any genuine hardship or showing any reason for not filing the return for Assessment Year 2017-18 that the circumstances were beyond the control of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The approach of the authorities should be justice oriented so as to advance cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund. 16. Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine 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 som ..... X X X X Extracts X X X X X X X X Extracts X X X X
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