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TMI Blog2023 (12) TMI 1094X X X X Extracts X X X X X X X X Extracts X X X X ..... f fifteen days from the date of receipt of such a communication. As Petitioner did not do the needful within the prescribed time, the income-tax return filed by Petitioner (assessee) was declared to be invalid. 2. In order to overcome this difficulty, an application under Section 119 of the Income Tax Act, 1961 ("the Act") was filed by Petitioner before the Principal Commissioner of Income Tax ("PCIT")- 2, Pune, which came to be rejected by an order dated 9th September 2021 passed by the Principal Chief Commissioner of Income Tax ("PCCIT"), Pune. 3. Against the order, Petitioner filed a Writ Petition being Writ Petition No. 88661 of 2022 impugning the order passed by the PCCIT and one of the primary grounds raised was Petitioner's application came to be rejected without even giving a personal hearing. This Court was pleased to dispose the petition vide its order dated 3rd October 2022 by quashing and setting aside the order dated 9th September 2021 and remanding the matter for de-novo consideration. 4. The matter was considered de-novo by the PCCIT, who again rejected Petitioner's application for condonation of delay under Section 119(2)(b) of the Act. The reason for rejection i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as sent to company's registered address. All this came to light when the new team including one Mr. Kapil Bhakre (Director) and Mr. Dinesh Pande (Director-Finance), found out the error during the finalization of accounts for AY 2018-2019 and immediately took remedial action by submitting an application dated 5th November 2019 to the office of the DCIT, Circle-3, Pune. Petitioner immediately provided details about the invalid return and requested him to activate the action on the Income Tax Portal so as to enable Petitioner to rectify the return of income for AY 2017-2018. It is stated that Petitioner would also get a refund of Rs. 13,09,230/- and only wanted to rectify the invalid return and comply with the Rules as per the Act. It is stated that Petitioner had filed the return for AY 2017-2018 on 25th November 2017 within the deadline prescribed under the Act. The Audit Report under Section 44AB of the Act was also filed on 25th November 2017. So also, Form 3CEB reporting international transactions was filed. In short, Petitioner has acted as a prudent assessee and carried out all compliances on time. Petitioner declared income of Rs. 73,77,136/- for AY 2017-2018 and determined ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldas K. Motwani v. Director General of Income-tax (International Taxation), New Delhi 2010 (87) taxman.com 44 (Bombay)., relied upon by Mr. Walve, where paragraph nos. 13 to 17 read as under : "13. Having heard both the parties, we must observe that while considering the genuine hardship, Respondent No. 1 was not expected to consider a solitary ground so as to whether the petitioner was prevented by any substantial cause from filing return within due time. Other factors detailed hereinbelow ought to have been taken into account. 14. The Apex Court, in the case of B.M. Malani v. CIT [2008] 10 SCC 617, has explained the term "genuine" in following words: "16. The term 'genuine' as per the New Collins Concise English Dictionary is defined as under : 'Genuine' means not fake or counterfeit, real, not pretending (not bogus or merely a ruse)'. 17. ****** 18. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well-known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind....." (p. 624). The Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preferred for the other side cannot claim to have 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 cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund. 16. Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine the merits of the refund claim closely and come to a conclusion that the applicant's claim is bound to succeed. This would amount to prejudging the case on merits. All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. At this stage, the authority is not expected to go deep into the niceti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e application for condonation of delay on account of delay from the date of filing the Return of Income, i.e., 14 September 1999 upto 30 April 2002. This was not the ground mentioned in notice dated 7 February 2006 given to the petitioner by the CBDT for rejecting the application for condonation of delay. Thus the petitioner had no occasion to meet the same. It appears to be an afterthought. However, as pointed out in paragraph 20 hereinabove, the delay in filing of an application if not coupled with some rights being created in favour of others, should not by itself lead to rejection of the application. This is ofcourse upon the Court being satisfied that there were good and sufficient reasons for the delay on the part of the applicant. 23. In light of the aforesaid discussion, we are of the opinion that an acceptable explanation was offered by the petitioner and a case of genuine hardship was made out. The refusal by the CBDT to condone the delay was a result of adoption of an unduly restrictive approach. The CBDT appears to have proceeded on the basis that the delay was deliberate, when from explanation offered by the petitioner, it is clear that the delay was neither deliber ..... X X X X Extracts X X X X X X X X Extracts X X X X
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