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TMI Blog2013 (10) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... take away the petitioner's case for genuine hardship nor contrary to what is vehemently contended before us by the counsel for the Revenue, convince us to hold that filing of revised return beyond limitation lacked bona fides - Decided in favour of assessee. - SPECIAL CIVIL APPLICATION NO. 12760 of 2012 - - - Dated:- 5-3-2013 - AKIL KURESHI AND SONIA GOKANI , JJ. For the Appellant : Tushar P. Hemani and Ms. Vaibhavi K. Parikh. For the Respondent : K.M. Parikh. ORDER:- PER : Akil Kureshi Heard learned advocates for the parties. 2. Petitioner has challenged order dated 6.2.2012 passed by the Commissioner of Income-tax in exercise of powers under section 119(2)(b) of the Income-tax Act, 1961 ("the Act" for short). Such challenge arises in following factual background:- 2.1 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 ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 was deposited with the exchequer during the year under consideration. 6. The petitioner, however, filed a revised return for the assessment year 2008-09 on 28.3.2011. Since such revised return was concededly time barred (last date for such revised return being 31.3.2010), the petitioner also filed on 28.3.2011 a petition before the Commissioner under Section 119 of the Act requesting that necessary orders may be passed admitting claim of refund and admitting the revised return filed on 28.3.2011. 7. It is on this petition that the Commissioner passed his impugned order. He observed that: "5. I have considered the submission of the assessee and facts on records as well as the comments of the Assessing Officer. The applicant is seeking extension of time for filing revised return. It has been stated that the revised return was not filed due to reasonable cause. It is, however, not explained as to what was the reasonable cause for not filing the revised return in time. It must be noted that the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain observations were made. 11. On the other hand, learned advocate Mr. Parikh for the Revenue opposed the petition contending that the petitioner had shown no grounds for condoning the delay. The Commissioner examined all aspects of the matter and come to a just conclusion that delay in filing revised return cannot 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 deposited the tax amount on 29.3.2008. It is not in dispute that by virtue of the amendment in Section 40(a)(ia), introduced by Finance A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised return for the assessment year 2005-06, the petitioner was still contesting the disallowance for the assessment year 2005-06. Secondly, the fact that such amount was already paid during the previous year relevant to the assessment year 2008-09, is not disputed. Thirdly, the petitioner is a small time transport operator. His entire freight expenditure during the previous year relevant to the assessment year 2005-06, was approximately 29.97 lakhs, disallowance of 17.84 lakhs thereof would constitute more than 50% thereof. Further the petitioner did demonstrate that in addition to causing undue hardship, reasons why such revised return could not be filed within time. Section 119(2)(b) of the Act empowers Central Board of Direct Taxes or Income-tax Authorities duly authorised in this behalf to admit an application, of claim for any exemption, deduction, revision or any other relief under the Act for making such application or claim and deal with the same on merits, if the authorities consider it desirable and expedient to do so, for avoiding genuine hardship in any case or class of cases. 15. Paramount consideration, therefore, in exercise of power under Section 119(2)(b) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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