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TMI Blog2020 (8) TMI 242X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax Act, 1961 (hereinafter shortly referred to as 'Act') seeking to condone the delay in filing return of income as well as refund claim with respect to the assessment year in question, which was rejected by the second respondent on 28.04.2011. Feeling aggrieved, he filed a review application, which was dismissed by the second respondent, vide order dated 17.10.2011. However, a liberty was given to the petitioner to file appeal before the Central Board of Direct Taxes (CBDT), New Delhi. Accordingly, the petitioner went on appeal before the first respondent / CBDT, which was also dismissed, vide order dated 17.04.2012. Hence, the petitioner has preferred this writ petition to quash the said order and consequently, direct the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used the material available on record. 5.The factual matrix of the case as narrated above is not in dispute. The petitioner filed application under Section 119(2)(b) of the Act before the second respondent seeking condonation of delay in filing the return of income for the assessment year 2006-07 and requesting to allow the refund claim of Rs. 1,40,777/-. Vide order dated 28.04.2011, the second respondent rejected the said application, stating that the petitioner being an assessee, is expected to be aware of the statutory requirements of filing the voluntary return u/s.139(1) or even within the extended period u/s.139(4) particularly when a refund is due to him and hence, the application for condonation of delay is not acceptable. The peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order impugned herein. 8.Before deciding the issue involved herein, it is worth referring to Section 119(2)(b) of the Act, which reads as under: "Section 119(2)(b) - The Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorize (any income-tax authority, not being a Commissioner (Appeals)) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law;" 9.It is also appropriate to quote the observation of the Kerala High Court in Pala Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing Officer for considering the assessee's claim for refund under section 237. Section 237 makes it clear that the Assessing Officer while considering application for refund should consider the amount of tax chargeable on the claimant under the Act and refund arises only if the payment is in excess of the tax payable under the Act. In other words, the Assessing Officer has powers of assessment under section 237 while considering an application for refund. Refund is payable only if it is in excess of tax and other amounts payable under the Act. In other words, an assessee who escapes assessment invites assessment if an application for refund is made under section 237." 10.In the case at hand, it is seen that the order dated 17.04.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in time; and ill-health was a subsequent event for not taking up the contract work afresh and hence, the petition for condonation of delay was not acceptable. Challenging the same, the petitioner filed a review before the second respondent, before whom, he furnished explanation for not collecting the TDS certificates from the concerned NGO, that the TDS certificates sent by the NGO named Sneha were not delivered to the petitioner as he was handling Tsunami projects at various locations throughout the State and after completion of the same, he went to USA to help her daughter for delivery. Though the petitioner has explained the delay and substantiated their genuine hardship, the second respondent has not accepted the same and ultimately, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be paramount consideration of the Courts as well as the Authorities rather than deciding on hyper-technicalities.
14.Thus, for the aforesaid reasons, the order dated 17.04.2012 passed by the first respondent is quashed. Consequently, the delay in filing the return of income by the petitioner relating to the assessment year 2006-07 is condoned. The respondent concerned is directed to process the return of income along with refund claim and pass appropriate orders, on merits and in accordance with law, after affording an opportunity of personal hearing to the petitioner within a period of four weeks from the date of receipt of a copy of this order.
15.This writ petition is allowed in the aforesaid terms. No costs. X X X X Extracts X X X X X X X X Extracts X X X X
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