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IN THE HIGH COURT OF KERALA AT ERNAKULAM
Gopinath P., J.
K.C. Antony, S/o. Late Sri. Chacko - Petitioner
Versus
The Principal Commissioner, The Principal Commissioner Of Income Tax - 1, Kochi - Respondents
W.P.(C) No. 13511 Of 2021
Decided On : 17-11-2022
Constitution of India, 1950 - Article 226 - Income Tax Act, 1961 - Section 119(2) (b), 139 - Empowers all the High Courts of India to issue the writ - If the person fails to file the return of income within the time-limit prescribed in this regard, then as per section 139(4) he can file a belated return - Whether it was filed within 6 years or not - Application for refund, by filing return of income, was admittedly made -Therefore, delay in filing ought to be with reference to last date for filing of return of income for the year 2010-11, In this view of matter, it is not necessary to consider decisions cited at bar by learned counsel for petitioner - Respondent completely misdirected himself in law while holding that Ext.P5 application of petitioner for condonation of delay ought to be rejected as it was filed beyond period specified in Circular of Board, referred to above - It cannot be disputed and it is clear from a reading of provisions of Section 119(2)(b) that delay to be condoned is the delay in making application' for refund.(Para 6).
Finding of the Court: Court of view that respondent completely misdirected himself in law while holding that Ext.P5 application of petitioner for condonation of delay ought to be rejected as it was filed beyond period specified in Circular of Board -It cannot be disputed and it is clear from a reading of provisions of Section 119(2)(b) that delay to be condoned is delay in making application for refund - ' Application for refund', in this case is return which was not processed as it was filed beyond time specified in Section 139 of Act - Therefore, delay to be condoned was not to be considered with reference to date on which the application under Section 119(2)(b) was filed, but with reference to date on which 'application for refund' was filed.
Result: Petition allowed
JUDGMENT :
1. The petitioner has approached this Court being aggrieved by the fact that an application filed by the petitioner under Section 119(2)(b) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') for condonation of delay in filing returns and claiming refund for the Assessment Year 2010-11 was rejected by the Principal Commissioner of Income Tax through Ext.P6 order dated 12.4.2021. The petitioner seeks a mandamus commanding the respondents to process the return of income filed by the petitioner for the Assessment Year 2010-2011 and grant to the petitioner the refund of Rs.1,33,470/-claimed by him.
2. The brief facts of the case show that the petitioner, who is an assessee under the Act, did not file his return of income for the Assessment Year 2010-11 within the time specified under Section 139 of the Act. The due date for filing of return, as far as the petitioner is concerned, for the Assessment Year 2010-11 was 31.07.2010 and the last date on which he could have filed his return of income for that year was 31.3.2012. The petitioner filed his return of income only on 13.7.2012. It is the case of the petitioner that the delay in filing the return for the Assessment Year 2010-11 was on account of the fact that the petitioner was suffering from certain ailments and was hospitalized in connection with treatment for a period about four months from 25.2.2012. It is the case of the petitioner that since the return was not processed and refund was not granted for several years, the petitioner made an enquiry in the month of June 2020 and thereafter filed W.P.(C)No.20788/2020 which was disposed of by Ext.P3 judgment dated 14.12.2020 as under:-
“Taking note of the submission of the learned counsel for the petitioner that an application under Section 119 of the Income Tax Act is being filed before the respondent, the Writ Petition is closed without prejudice to the right of the petitioner to pursue the said application.”
Following the disposal of W.P.(C)No.20788/2020, the 3rd respondent required the petitioner to file his application for condonation of delay under Section 119(2)(b) of the Act, through Ext.P4 communication dated 4.2.2021. However, the record indicates that the petitioner had already filed an application for condonation of delay on 20.1.2021. That application of the petitioner has been rejected by Ext.P6 proceedings of the 1st respondent. Ext.P6 reads as under:-
Shri. Antony Kaithackal Chacko, the applicant filed a petition before the Pr. Commissioner of Income Tax, Kochi-I on 20-01-2021 requesting for condonation of delay in filing return of income for the assessment year 2010-11.
2. The report on the condonation petition was submitted by Jurisdictional assessing officer the ITO, Ward-I, Kottayam which was forwarded by the Joint Commissioner of Income Tax, Range-I Kottayam, along with his remarks.
3. The application for condonation and report submitted by the jurisdictional Assessing Officer have been perused and found that the assessee has submitted this application for condonation of delay in filing of return for AY 2010-11 after 9 years. As per CBDT Circular No.9/2015, no condonation application for claim of refund can be entertained beyond six years from the end of the relevant assessment year. The conditions specified in the CBDT Circular No.9/2015 are not fulfilled in the instant case and hence, the petition of the applicant is hereby rejected.”
A reading of Ext.P6 order shows that the application of the petitioner was rejected as it was found that the application filed by the petitioner is not within a period of six years from the end of the relevant assessment year. The provisions of a Circular issued by the Central Board of Direct Taxes as Circular No.9/2015 dated 9.6.2015 were relied on by the 1st respondent while issuing Ext.P6 order.
3. The learned counsel for the petitioner refers to the facts and circumstances of the case and states that, in the light of the judgments of this Court i
SupremeToday
Application for refund', in this case is the return which was not processed as it was filed beyond the time specified in Section 139 of the Act.
Condonation of delay in filing returns under Section 119(2)(b) strictly governed by prevailing CBDT circulars; independent of Section 148 notice.
The court held that genuine hardship must be assessed for delay applications under Section 119(2)(b), not merely denied based on failure to demonstrate hardship.
The court held that 'genuine hardship' in income tax condonation applications should be construed liberally to prevent injustice caused by technicalities, especially in cases involving medical emerge....
The court ruled that 'genuine hardship' should be construed liberally in tax law for condonation of delays, promoting substantial justice, especially when no liability exists.
The court established that genuine hardship under Section 119(2)(b) of the Income Tax Act can be recognized based on the specific circumstances of the taxpayer, including age and health, and that the....
The court established that genuine hardship under Section 119(2)(b) of the Income Tax Act can be recognized based on the specific circumstances of the petitioner, including age and health, and that t....
The court emphasized the necessity for timely consideration of delay condonation applications under the Income Tax Act.
Court emphasized that 'genuine hardship' in tax compliance should be assessed liberally, especially when unforeseen employee turnover disrupts timely filings.
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