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TMI Blog2024 (3) TMI 152X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner and learned Senior Standing Counsel Mr. Varun K. Patel with learned advocate Mr. Dev D. Patel for the respondents. 1. Rule, returnable forthwith. Learned Senior Standing Counsel Mr. Varun Patel waives service of notice of rule for and on behalf of the respondents. 2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : "A. to quash and set aside the impugned order dated 16.10.2023 passed by the Principal Commissioner of Income Tax under section 119(2)(b) of the act for A.Y. 2017-18 at Annexure-'F', B. to direct the Respondents to allow the application of the petitioner requesting to condone delay in filing return of income for the Assessment Year 2017-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etails were called for by the respondent No. 2 which were also submitted by the petitioner. 3.5. The respondent No. 1-Principal Commissioner of Income Tax (for short 'PCIT') passed an impugned order on 16.10.2023 under Section 119(2)(b) of the Act rejecting the application for waiver of time limit for filing of the return for Assessment Year 2017- 18 and intimation letter dated 19.10.2023 was issued. 4.1. Learned advocate Mr. Sudhir Mehta for the petitioner submitted that the respondent No. 1-PCIT ought to have condoned the delay in filing the return for Assessment Year 2017-18 as the amount of refund on account of the TDS is not in dispute. It was submitted that the reason given by the respondent No. 1 rejecting the application that only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer has opined to condone the delay in filing the return of income for Assessment Year 2017-18, however, in the report submitted by the Assessing Officer, it was opined that the delay should not be condoned. 5.2. It was further submitted that it was also pointed out by the Assessing Officer that the case of the assessee does not pertain under any genuine hardship as no death certificate of the father of the petitioner was also attached by the assessee and assessee approached for filing of return with a delay condonation application after four years of his first application. 5.3. It was further submitted by learned Senior Standing Counsel Mr. Varun Patel that the petitioner is also not entitled to file the return in name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malani Versus CIT reported in [2008] 174 Taxman 363/306 ITR 196 wherein the word and phrase "genuine hardship" was interpreted by the Apex Court referring to the term "genuine" as per New Collins English Dictionary, where the word genuine was defined as "Genuine: not a fake or counterfeit, real, not pretending (not bogus or merely a ruse)." The Apex Court in the said case, on applying the principle of purposive construction held that the ingredients of genuine hardships must be determined keeping in view the dictionary meaning thereof and legal conspectus attending thereto. It was further held by the Apex Court that the person cannot take advantage of his own wrong. 8. In case of Sitaldas K. Motwani (Supra), the Bombay High Court has consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntitled to the refund of the amount of Rs. 6,93,310/- which represents the tax deducted at source from the income of his late father and in absence of any outstanding dues of the late father of the petitioner, the said amount is liable to be refunded by the respondent-Authority as per the provisions of the Income Tax Act. In such circumstances, the denial on the part of the respondent No. 1 to condone the delay in filing the return of income by the petitioner either in name of his father or in his individual name ought to have been permitted and the respondent-Authority ought to have examined such claim on merits and if it is found to be genuine, the petitioner is entitled to the refund of Rs. 6,93,310/- with statutory interest, if any, to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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