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TMI Blog2019 (7) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... t writ petitioner has taken his first step qua section 264 application / petition well within the one year time frame. Thereafter, post rejection of revised return, writ petitioner did not go into slumber. Further, writ petitioner filed rectification, on which no orders were passed. Without passing orders on rectification, a demand notice was issued triggering a second rectification from writ petitioner which came to be dismissed. To be noted, a demand was made on 31.1.2018, second rectification request was filed by writ petitioner on 25.2.2018, second rectification having been dismissed / rejected on 2.7.2018, writ petitioner ultimately filed a petition / application u/s 264. There is one other aspect which has weighed in the mind of this Court for acceding to the prayer of writ petitioner unlike other cases / case laws, particularly Viswanathan Silk Centre [ 1991 (10) TMI 7 - MADRAS HIGH COURT] , as third respondent has said nothing on merits of the matter in case on hand. As section 264 petition / application has not been examined on merits, in the considered opinion of this court, by acceding to the prayer in the instant writ petition and directing third respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is informed that this is a typographical error and that the correct date of the impugned order is 17.01.2019). It is also not in dispute that third respondent has powers to condone the delay under proviso to sub-section (3) of section 264 of IT Act and that there is no cap in this regard. In other words, there is no restriction regarding the length of delay that can be condoned by the third respondent. As third respondent has not said anything in the impugned order on the merits of Section 264 petition / application filed by the writ petitioner, the entire writ petition assailing the impugned order made by the third respondent now turns on condonation of delay aspect of the matter. 4 Further undisputed dates and events which admittedly form part of records before third respondent (which are necessary for the disposal of the instant writ petition) are as follows : (a) Writ petitioner is a non resident seafarer serving outside India; (b) Relevant assessment year is 2009-10 (hereinafter 'said AY' for brevity); (c) Writ petitioner was employed in a foreign ship which goes by the name 'Bow Kiso' flying Panamani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n application / petition dated 10.10.2011 is pending and undisputedly, no orders have been passed on the same until today. (i) Be that as it may, while rectification application / petition was pending, IT department issued a demand notice dated 31.01.2018. The demand notice dated 31.01.2018 acting as trigger, writ petitioner filed a second rectification application / petition. The second rectification request is dated 25.02.2018. (j) This second rectification request was rejected by IT department on 02.07.2018 primarily on the ground that there was no mistake as per section 154 of IT Act and therefore, the application cannot be entertained under section 154 of IT Act. Owing to the rejection of this rectification application / petition on 02.07.2018, writ petitioner filed an application under section 264 of IT Act with third respondent on 24.10.2018. Aforesaid application / petition dated 24.10.2018 came to be dismissed by third respondent solely on the ground of delay, i.e., under proviso to sub-section (3) of section 264 without going into merits. This order came to be passed on 17.01.2019 and as mentioned supra, this is the impugned or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot lethargic and on the contrary, had been actively pursuing his effort to get the overseas income excluded from returns for said AY and therefore, it cannot be gainsaid that writ petitioner had been lethargic. It was also contended by learned counsel for writ petitioner that various case laws that have been relied on by third respondent to dismiss writ petitioner's application / petition vide impugned order are not applicable to facts of the instant case. To be noted, this court shall allude to the same infra after referring to the submissions of Revenue counsel as submissions of revenue counsel turn heavily on case laws which were relied on by third respondent in passing the impugned order. 9 In response to aforesaid submission of writ petitioner, learned Revenue counsel adverting to counter affidavit filed by IT department, supported the impugned order and submitted that third respondent was correct in dismissing the application / petition of writ petitioner under section 264 of IT Act on the ground of delay. In this regard, it is to be noted that learned Revenue counsel also very fairly submitted that third respondent has not said anything on the merits of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. case; (iv)Nahar Exports Limited case; and (v)Rane Madras case. 13 This court deems it appropriate to make an adumbration of these case laws based on the dates on which they were rendered by Hon'ble Supreme Court and respective Hon'ble High Courts and the same reads as follows : Sl.N o. Date of Judgment/Order Name of the case 1 19.02.1987 Collector, Land Acquisition, Anantnag and another Vs. Mst Katiji and others [(1987) 2 SCC 107 ] 2 30.10.1991 Viswanathan Silk Centre Vs. Commissioner of Income Tax [1993] 203 ITR 131 (Mad ) 3 24.06.2004 Vinay Extraction Pvt. Limited Vs. Vijay Khanna [2004] 271 ITR 450 (Guj) 4 20.08.2014 H.Dohil Constructions Company Priv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al matrix of Viswanathan Silk Centre case reveals that the same is clearly distinguishable as rightly pointed out by learned counsel for writ petitioner. Viswanathan Silk Centre case pertains to nine assessment years and the delay was of different periods qua each assessment year. It was a case where assessees were buying and selling yarn and it was a case where assessee said that it did not claim benefit under section 80HH of IT Act at the time of filing returns. A closer perusal of Viswanathan Silk Centre case reveals that Commissioner of IT Department in that case while dismissing section 264 petition / application had clearly held on the basis of material before him that there was no evidence to show that assessees were carrying on any manufacturing activity during the relevant assessment years / periods, i.e., 1975-76 to 1983-84. A finding was returned on facts to the effect that assessees were only buying yarn, selling the same to weavers, purchasing the finished products and there was no manufacturing activity carried on by assessees during relevant assessment years. After saying so, Commissioner of IT department had categorically returned a finding that assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next case law, this court is clear that whether sufficient cause has been made out or not is always a question which depends on facts and circumstances of each case and it has to be established based on records of that case. 19 This takes the discussion in this order to the next case law, namely, Vinay Extraction Pvt. Limited case, which is a judgment rendered by a Hon'ble Division Bench of High Court of Gujarat at Ahmedabad. This is also a case arising out of a petition under section 264 of IT Act. In this case, the order of Commissioner was assailed in a writ petition which was heard by a Division Bench of Gujarat High Court. A careful perusal of the factual matrix ov Vinay Extraction Pvt. Limited case reveals that it is a case where the assessee relied on the principle that Government subsidy is an incentive not for the specific purpose of meeting a portion of the cost of the assets, though quantified as a percentage of such cost and that the subsidy does not partake the character of a payment intended either directly or indirectly to meet the actual cost of the assets. More importantly, in this case, there has been no action on the part of the assesee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re aspect. The Division Bench of Gujarat High Court had quoted Cardozo and held that matching the colour of one case against the colour of another cannot be the basis for precedents. This is articulated in paragraph 9 of Vinay Extraction Pvt. Limited case and this Court deems it appropriate to extract the entire paragraph 9 which reads as follows : 9.The decision in Karamchand Premchand's case is, however, required to be read in light of the facts of that case and the reasons given by this Court for holding that the petitioner had shown sufficient cause for condonation of delay. As per the settled legal position, the Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Judgments of Courts are not to be read as Euclid's theorems nor the observations therein as provisions of a statute. The observations in a judgment must be read in the context in which they appear. Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt held that condonation of delay is impermissible obviously on the factual matrix of that case. Therefore, in the considered opinion of this Court, Nahar Exports Limited case is clearly distinguishable on facts and is therefore, not applicable to the instant case. 26 This takes us to Rane (Madras) case rendered by Hon'ble Division Bench of this Court in Tax Case (Appeal) SR.No.91371 of 2010 dated 10.06.2016. This is a case of delay in filing a tax case before Division Bench of this Court. General principles have been adverted to and on the facts of that case, delay was not condoned. This Court has no difficulty in accepting the submission of learned counsel for writ petitioner that even broad similarities referred to in Vinay Extraction Pvt. Limited case is not there between the case on hand and Nahar Exports Limited case. This is more so as Rane (Madras) case (as placed before this Court, i.e., MANU/TN/1936/2016 ), does not give elaboration of facts. More importantly, it is pointed out by learned counsel for writ petitioner that personal hearing was held on 27.12.2018 and in the personal hearing, the chronicle of events and papers / docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as the entire case law should be before this Court for any discussion on the same. Be that as it may, to be noted, being a Bombay High Court citation with regard to precedents, it would be of persuasive value. 31 In the light of the discussion thus far, there is one important factor which has been noticed by this Court. 32 As would be evident from the chronicle of events which have been alluded to supra with specificity, it will be clear that one year time frame for filing application / petition under section 264 of IT Act expired on 22.10.2011, as the order of assessment under section 143(1) of IT Act came to be passed on 23.10.2010. Within this one year, i.e., on 05.08.2011 itself, writ petitioner had taken the first step to have his ₹ 19.84 lakhs excluded / exempted qua said AY by filing a revised return. This revised return was rejected under section 139 (5) of IT Act on the technical ground that original return was not filed in time. Therefore, this brings to light that writ petitioner has taken his first step qua section 264 application / petition well within the one year time frame. Thereafter, post rejection of revised return, writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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