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TMI Blog2009 (12) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... -01 had become barred by limitation on 31st March, 2002 and therefore, the return was filed on 24th September, 2003 along with an application u/s.119(2)(b) for condonation of delay in filing of return and claiming refund. – held that - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ian Companies and earned Short Term Capital Gains of Rs.2,09,05,250/-. The concerned bank with whom the assessee was maintaining his regular account, deducted the tax at source @ 30%. 3. The assessee filed his return of income for the first time for A.Y. 2000-01 claiming that the Short Term Capital Gains on sale of shares of Indian Companies qualify to be investment income u/s.115C of the Act, taxable at a flat rate of 20% and claimed a refund of Rs.20,78,871/-. Needless to mention that prior to filing this return on 24th September, 2003, the assessee did not file any return for any assessment year. The return of income for A.Y.2000-01 had become barred by limitation on 31st March, 2002 and therefore, the return was filed on 24th Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... panies which are specified assets u/s.115C(f) of the Act. (b) The said shares are foreign exchange assets acquired or purchased from convertible foreign exchange through NRE Account; (c) The assessee is an NRI as per the provisions of Section 115C(e) of the Act,1961. 5. The learned Counsel for the petitioner also placed reliance on the decision of the Income Tax Tribunal Bench Delhi in the case of Trishala Devi Jain Vs. DCIT vide order No.954 to 959 of 1989 dated 3rd August, 1990 and that the judgment of the Punjab Haryana High Court in the case of CIT Vs. Sangya Jain 232 ITR 666. IMPUGNED ORDER 6. The respondent No.1 was pleased to reject the prayer for condonation of delay in filing return of income relying on the CBDT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia. RIVAL SUBMISSIONS: 10. Mrs.Shobha Jagtiani, learned Counsel appearing on behalf of the petitioner urged that the petitioner was under bonafide belief that since the tax has been deducted by the bank, he was not required to file income tax return in India, as such the petitioner has failed to file return in time. When the return was filed, it was delayed by 18 months, therefore, the petitioner was required to move an application dated 25th February, 2004 u/s.119(2)(b) to seek condonation of delay in filing the return of income and claim refund. 11. Mrs.Jagtiani further urged that respondent No.1 has misconstrued and failed to realize that this was of genuine hardship as the assessee was not aware of the laws in India requiri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. Ltd. Vs. CIT 255 ITR 396, was pleased to hold as under: "The Board was not justified in rejecting the claim for refund on the ground that a case of genuine hardship was not made out by the petitioner and delay in claiming the relief was not satisfactorily explained, more particularly when the returns could not be filed in time due to the ill health of the officer was looking after the taxation matters of the petitioner." The Madras High Court in the case of Seshammal (R) Vs. ITO (1999) 237 ITR 185 (Madras), was pleased to observe as under: "This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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