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TMI Blog2017 (11) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty belonging to her and sought to avail the genuine exemption from such tax liability upon making the investment in the prescribed investment in the form of Bonds of Infrastructure which she did make in the National Highways Authority. In these circumstances, this Court is inclined to allow this petition. The same is accordingly allowed. The impugned order vide Annexure-A passed by the respondent, Central Board of Direct Taxes on 26-01-2014 is set aside and the assessee is held entitled to the exemption from Capital Gain Tax under Section 54 EC of the Act and the respondent authority or the authorities below Central Board for Direct Taxes are directed to give effect to such exemption to the assessee and pass necessary consequential orders in this regard. - Writ Petition No. 54672/2015 (T-IT) - - - Dated:- 24-10-2017 - Vineet Kothari, J. For the Petitioner : Sri V Raghuraman, Advocate For the Respondent : Sri E R Indrakumar Sri E I Sanmathi ORDER The petitioner, Dr. Sujatha Ramesh, has filed this petition in this Court, aggrieved by the order passed by the Respondent, Commissioner of Income Tax (OSD-ITA), Central Board of Direct Taxes, on 26-11-2014 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit me to invest in bonds U/s 54ED. I will be very grateful to the board if it kindly relaxes the time period and permits me to invest in the specified bonds. If such relaxation is kindly made by the board then I will be entitled to claim U/s 54ED. It is further submitted that the due date of filing income tax return is on 31.07.2013. I may kindly be permitted to invest in the bonds at the earliest so that I can get the deduction U/s 54ED. I request the board once again to kindly pass the favorable order at the earliest and communicate to me. Thank you very much for your kind consideration. I look forward to hearing from you. Yours Faithfully Sd/- Smt.Dr.Sujatha Ramesh April 5, 2013. 3. The respondent, Central Board of Direct Taxes(CBDT), however refused to condone the said delay and rejected the said application by the impugned order, Annexure-A dated 26-11-2014 assigning the following reasons in the impugned order. 2. A report from Chief Commissioner of Income Tax, Bangalore-II has also been considered by the Board where it has been pointed out that the applicant returned from her first visit to USA on 01.12.2012 and left India for USA again on 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 3 years as required by the terms of the said National Highway Infrastructure Bonds. 5. Learned counsel Mr. V. Raghuraman, submitted that a fair and dispassionate view of the facts in the case of the assessee ought to have persuaded the Respondent (CBDT) which has a wide discretion in the matter under Section 119 of the Act, to condone the comparatively smaller delay of six months and allow the assessee to avail the said exemption from capital gain tax in terms of Section 54 EC of the Act. He placed reliance on the following decisions in this regard. (i) Artist Tree Pvt. Ltd. Vs. Central Board of Direct Taxes and others (2014) 369 ITR 691 (Bombay). The relevant para 11 to 14 and 23 of the said judgment are quoted below for ready reference. 11. The expression genuine hardship came up for consideration of the Supreme Court in the case of B.M. Malani (Supra), wherein, by reference to New Collins Concise English Dictionary, the Supreme Court accepted the position that genuine means not fake or counterfeit, real, not pretending (not bogus or merely a ruse). Further, a genuine hardship would, inter alia, mean a genuine difficulty. The ingredients of genuine hardship, mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious matter being thrown out at the very threshold an cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on the merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a 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 the cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund. (emphasis 1 supplied) 14. In the case of Bombay Mercantile Co-operative Bank Ltd. (supra), this court again observed that it is well settled that in matters of condonation of delay highly pedantic approach should be eschewed and a justice-oriented should be adopted. It also observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever that by itself would not 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. 6. On the other hand, Mr. Indrakumar, learned Senior Counsel appearing for the respondent- Income Tax Department submitted that the exemption provision in the taxing statute should be construed strictly. The limitation prescribed for such investment to avail the exemption under Section 54EC of the Act, cannot be liberally construed, and where belatedly the said eligible investment was made with a delay of six months, the reasons assigned by the Central Board of Direct Taxes in the impugned order are sustainable reasons and even without the physical presence of the assessee in India before the cut off date, such investment could be made even by electronic medium and therefore, the condonation of delay should not be granted as a matter of right to the assessee-petitioner to claim the exemption and therefore, the impugned order does not require any interference by this Court. 7. He relied upon the decision of the Hon ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uppl.(1)SCC 102, para 39, Union of India Ors. Vs. Maj.Gen.(Retd.) Madan Lal Yadav (1996) 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil Vs. Sana Ullah (dead) Ors. (1996) 6 SCC 342 at 345, para 7, Sushil Kumar vs. Rakesh Kumar (2003) 8 SCC 673 at 692, para 65, first sentence, Kusheshwar Prasad Singh vs. State of Bihar Ors. (2007) 11 SCC 447, paras 13, 14 and 16) . 9. Having heard the learned counsels for the parties, upon consideration of the relevant facts and legal position, this Court is of the opinion that the present petition deserves to be allowed. 10. The undisputed fact is that the petitioner- assessee made the eligible investment in the Infrastructure Bonds of National Highway Authority of India, albeit with the delay of about six months. The substantial condition for availing the exemption under Section 54EC of the Act, thus stood satisfied. The question before the Central Board of Direct Taxes was not about the merit of the claim of exemption itself, but the question was of the exercise of its discretion in condoning the said delay of six months under Section 119 (2)(b) of the Act. 11. The said provisions couched in very wide terms are quoted below for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejecting such condonation application, but an assessee, who substantially satisfies the condition for availing such exemption should not be denied the same, merely on the bar of limitation, especially, when the legislature has conferred wide discretionary powers to condone such delay on the highest executive authority of the Central Board of Direct Taxes under the Act. 13. The general and wide powers given to the Board in this regard, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case.. , not only gives wide powers to the Board, but confers upon it a obligation to consider facts relevant for condonation of delay as well as the merit of the claim simultaneously. If the claim of exemption or other claim on merits is eminently a fit case for making such claim, it should not normally be defeated on the bar of limitation, particularly, when the delay or the time period for which condonation is sought is not abnormally large. It will of course depend upon the facts of the each case, where such a time period or the merit of the claim deserves such exercise of discretion in favour of the assessee under Section 119 (2)(b) of the Act or not and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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