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TMI Blog2021 (7) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Commissioner of Income Tax. It is pertinent to note that both the Principal Commissioner of Income Tax-II as well as the jurisdictional Additional Commissioner of Income Tax have given a report that the delay in filing the return of income may be condoned. Though the CBDT has referred to the said opinions, but has not taken the same into consideration while deciding the application of the respondent/assessee. This Court is of the opinion that the order passed by the learned Single Judge does not warrant interference. As department has stated before this Court that the present case will become time barred for the purpose of scrutiny and therefore, for the purpose of scrutiny and other proceedings, the right of the revenue to proceed ahead in accordance with law by taking into account the date of limitation from the date the order has been passed by the learned Single Judge may be protected - The prayer made by the learned counsel for the Income Tax department appears to be genuine prayer and therefore, in the present case, for the purpose of scrutiny, if any, and for the purpose of other proceedings also, the limitation shall start from the date the order has been pass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of an appeal in COMPA No.3/2014. 6. Due to the aforesaid disputes and pendency of the proceedings before the CLB, the statutory audit of the Company for the financial years 2012-13 and 2013-14 could not be completed within the prescribed time limit. Hence, in the pending appeal in COMPA No.3/2014, as an interim measure, this Court, vide its order dated 07.10.2014 appointed an auditor to audit the books of accounts of the respondent/company for the said two years. Thereafter, this Court disposed of the appeal in COMPA No. 3/2014 vide an order dated 15.10.2014, modifying the CLB's order dated 22.05.2014, but upholding the appointment of the Administrator. 7. The newly appointed Auditors completed the statutory audit of the respondent's books of account by February 2015 for the two financial years 2012-13 and 2013-14. However, as the disputes between the Promoters and the Investors in the respondent/company was not yet resolved, the audited accounts of the respondent/company could not be approved and adopted. There was further delay on account of a clarification to be obtained by this Court as to whether the Administrator has the right to exercise a casting vote and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said order of the CBDT was challenged before the learned Single Judge in W. P. No. 18419/2018 and the learned Single Judge allowed the writ petition vide order dated 06.01.2020. Aggrieved by the said order, the revenue is in appeal. 10. Paragraphs 9 to 12 of the order passed by the learned Single Judge read as under; 9. I have considered the submissions made by the learned counsel for the parties and have perused the record. Section 119(2)(b) of the Act empowers the Board to condone the delay for avoiding genuine hardship in any case or class of cases by general or special order. The expression genuine hardship was considered by the Supreme Court in the case of B.M.MALANI Vs. CIT (2008) 10 SCC 617 and it has been held that the ingredients of the expression genuine hardship must be determined keeping in view the discretionary meaning thereof and legal conspectus attending thereto. It is well settled in law that the expression genuine hardship should be construed liberally so as to advance the cause of justice. It is equally well settled legal proposition that the authority must satisfy itself with regard to the genuineness of the claim. However, the same does ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 11. The learned Single Judge has allowed the writ petition and has quashed the order dated 16.1.2018 passed by the CBDT and has also allowed the application for condonation of delay in filing the return of income for the assessment year 2014-15. 12. Sri.Sanmathi, learned counsel appearing for the Income Tax department has argued before this Court that the learned Single Judge has erred in law and in facts in allowing the writ petition especially in view of the fact that the order passed under Section 119(a)(b) of the IT Act of 1961 was passed in view of the parameters laid down in the statute. He has further argued that the learned Single Judge has erred in law in allowing the writ petition of the respondent/assessee in spite of the fact that the respondent/assessee has not fulfilled the conditions set out under Section 119(2)(b) of the IT Act of 1961 for condonation of delay in filing the return of income. His further contention is that the reason cited by the respondent/assessee could not have been accepted and it was not a fit case for condoning the delay. 13. It has also been contended by the learned counsel for the Income Tax department that a huge amount is invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt/assessee needs consideration and does not suffer from apparent defect. The CBDT is not expected to go deep into the niceties of law. 17. The CBDT, in its order dated 16.01.2018, has not appreciated the reasons given by the respondent/assessee for the delay in filing the return of income nor has taken into consideration the documents produced by the respondent/assessee before rejecting the assessee's application seeking condonation of delay for filing its return of income for the assessment year 2014 - 2015 and that the same was beyond the control of the respondent/assessee. Further, the CBDT has examined the return filed by the respondent/assessee on merits and rejected the claim on the ground that the claim is not genuine, relying on Circular No.9/2015 dated 9.6.2015, effectively passing an assessment order, contrary to the settled principles of law. The CBDT, in virtually passing an assessment order on the return of income of the respondent, has traversed beyond the scope of its power to condone the delay in filing the return of income under Section 119(2)(b) of the IT Act of 1961, and has acted contrary to the provisions of Section 119(2)(b). 18. In respect of Circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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