9911796707
TMI Blog2013 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 For the assessment year 2005-06 the petitioner filed return of income on 24.10.2005 declaring nil income. In such return, the petitioner had claimed freight charges of a total of Rs.29,97,526/-. The Assessing Officer, framed scrutiny assessment of such return on 2 8.12.2007 after putting the petitioner to notice that out of the total freight expenditure, the petitioner had not deducted tax at source for total payments of Rs. 17,84,323/-. The Assessing Officer in such assessment order disallowed the expenditure to the above extent under section 40(a)(ia) of the Act. 3. Against such order of assessment, the petitioner preferred appeal before Commissioner (Appeals). The petitioner's appeal, however, came to be dismissed by the Appellate Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ports of the assessing officer and the facts of the case, I find that on facts and in law, the action of the assessing officer was correct and requires no interference. However, the credit for the tax deducted at source may be allowed in the year in which the same is deposited into the Government treasury and the corresponding expenditure may be allowed as a deduction in that year." (Emphasis supplied by us) 5. We may notice that while these proceedings were going on, the petitioner deposited tax deducted with the Revenue exchequer on 29.3.2008. For the assessment year 2008-09 the petitioner filed return of income on 28.9.2008. In such return, admittedly the petitioner had not made any claim for freight expenditure on the ground that TDS w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the reasonable cause in not filing the revised return. I also agree with the observation of the Assessing Officer that on merit and on fact of the case, the application of the assessee is not maintainable under Section 119(2)(b)of the I.T. Act. Under the circumstances, I do not find any merit in this application and the same is rejected." 8. At this stage, the petitioner has approached this Court filing the present petition that the respondent be directed to regularize the revised return filed by the petitioner for the assessment year 2008-09 on 28.3.2011. 9. Learned counsel for the petitioner Mr. Hemani submitted that the petitioner was pursuing remedies under the law for claiming deduction for the assessment year 2005-06. Under suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be condoned for mere asking. He submitted that the petitioner had sufficient opportunities to claim the deduction in the year 2008-09, despite which no claim was made in the return filed and even the revised return was much belated. 12. Having thus heard learned counsel for the parties, we may recapitulate that for the assessment year 2005-06 when the deduction of freight expenditure of Rs. 17,84,323/- was disallowed by the Assessing Officer on the ground of non-deduction of tax at source, the petitioner contested such decision by initially filing appeal before the Commissioner (Appeals) and thereafter also preferred revision petition. Both these proceedings came to be dismissed on merits. In the meantime, the petitioner actually depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return. 14. In our opinion, in the facts of the present case, such petition ought to have been accepted. When the petitioner filed the return for the assessment year 2008-09, he was still pursuing his case for deduction of the freight charges for the assessment year 2005-06. In fact, when he filed return for the assessment year 2005-06, proviso to Section 40(a)(ia) was not in existence, which was brought in statute book by Finance Act, 2008 but with retrospective effect of 1.4.2005. The assessee, therefore, for whatsoever its worth, was contesting the disallowance in the relevant assessment year. It is true that by the time the assessee filed the return for the assessment year 2008-09 and by the time final date for filing revised return f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aramount consideration, therefore, in exercise of power under Section 119(2)(b) of the Act is desirability or expedience for avoiding genuine hardship. Twin considerations before the Commissioner, therefore, would be whether to avoid genuine hardship, to exercise the power would be necessary and further even if there was a case of genuine hardship, whether it would be desirable or expedient to do so. 16. In our opinion, in the present case, there would be genuine hardship, if the time limit is not extended as otherwise, the entire claim of Rs. 17,84,323/- would be destroyed. The petitioner would neither get deduction in the assessment year 2005-06 nor in the year 2008-09 as per then prevailing Section 40(a)(ia) of the Act. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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