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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 ..... r from the date of assessment was dismissed by the third respondent, refusing to condone the delay. The undisputed position before this Court is that this order of third respondent dated 17.01.2019 bearing reference F.No.CIT /IT / CHE / 113(264) / 2018-19 (hereinafter referred to as 'impugned order' for brevity, clarity and convenience) does not deal with the merits of the matter. (To be noted, in the writ petition and affidavit in the prayer portion, the date of impugned order has been mentioned as 17.02.2019. This court 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be passed by IT department placing reliance on sub-section (1) of Section 139 of IT Act. Thereafter, on 10.10.2011, writ petitioner filed a rectification qua return for said AY and this rectification was filed under section 154 of IT Act. Vide this rectification, writ petitioner sought exclusion of aforesaid income of Rs. 19.84 lakhs. (h) Aforesaid rectification 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 8 On the aforesaid basis, learned counsel for writ petitioner contended that impugned order has proceeded on the basis that writ petitioner has been extremely lethargic resulting in a delay of nearly nine (9) years. It was emphasised that writ petitioner was not 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 Therefore, case laws which fall for consideration are : (i)Katiji case (ii)Viswanathan Silk Centre case; (iii)Vinay Extraction Pvt. Ltd. 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 Private Limited Vs. Nahar Exports Limited [(2015) 1 SCC 680] 5 10.06.2016 Rane (Madras) Ltd. Vs. The Income Tax Officer [Tax Case (Appeal) SR.No.91371 of 2010 and CMP No.8551 of 2016, dated 10.6.2016] 14 This straightaway takes this discussion to aforesaid case laws. 15 Katiji case is the one where the State of Jammu and Kashmir was on appeal before Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner 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 assessees were not entitled to any relief under section 80HH of IT Act. Therefore, it is clear that Commissioner of IT Department had decided section 264 application / petition on merits. Apart from recording findings on merits, Commissioner also found that no proper explanation was given for the delay. Therefore, Viswanathan Silk Centre case is not one where Commissioner of IT Department dismissed the section 264 petition / application solely on the ground of delay without examining the matter on merits. This aspect of the matter has been very clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 between the date of assessment and the date of filing of a petition / application under section 264 of IT Act unlike the instant case where the assessee has been relentlessly pursuing his effort. In the considered opinion of this court, in the case on hand, the writ petitioner has not only been relentlessly pursuing his case, but has even been pursuing in a manner which can be described as tenacious. More importantly, the first step in this relentless effort was taken well within the prescribed limitation period, i.e., on 05.08.2011 when a revised return was filed before one year elapsed on 22.10.2011. 20 Be that as it may, furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing 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 deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not decisive." 22 Therefore, this court has no difficulty in accepting the submission of learned counsel for writ petitioner that Vinay Extraction Pvt. Limited case is clearly distinguishable. 23 In this regard, this Court deems it appropriate to also refer to the celebrated Padma Sundara Rao case being Padma Sundara Rao Vs. State of Tamil Nadu case reported in (2002) 3 SCC 533 with regard to precedents and the most relevant paragraph is paragra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts 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 / documents forming part of records were highlighted to explain the delay and the bona fides of writ petitioner in taking diligent and relentless efforts qua exclusion / exemption. 27 This takes us to one other aspect of the matter. Esha Bhattacharjee case being Esha Bhattacharjee Vs. Raghunathpur Nafar Academy reported in (2013) 12 SCC 649 has been referred to in more than one case law in the aforesaid case laws which have been discussed thus far. Esha Bhattacharjee case is an authority for the principle that when there is delay condonation application, facts have to be articulated in detail and that delay condonation application cannot be filed casually in generic terms. There can be no disagreement on this principle and there is none before this Court. 28 As already alluded to supra, learned counsel for writ petitioner at the very outset very fairly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioner did not go into slumber. As would be evident from undisputed chronicle of events alluded to supra, 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 under section 264 of IT Act. Therefore, this is not a case where writ petitioner had gone into slumber. 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 case, as third respondent has said nothing on merits of the matter in case on hand. As section 264 petition / application has not been examined o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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