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TMI Blog2024 (8) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is around 72 years, which do not warrant complete remand of the matter. The core law of Section 119 (2) (b) of Income Tax Act read with CBDT Circular No.09/2015 dated 09.06.2015, both reproduced above, clearly reflect that if there is a genuine hardship, then a condonation of upto six years can be permitted. Considering the overall perspective and peculiar facts of this case, including the age of the petitioner, the Section 119 (2) (b) of Income Tax Act read with CBDT Circular No.09/2015 dated 09.06.2015, which prescribes 06 years delay condonation on genuine hardship and the precedent law laid down in the matter on B.M. Malani s case [ 2008 (10) TMI 2 - SUPREME COURT] this Court is of the firm opinion that the depression, old age, long pendency of the issue and the petitioner s status as a small-scale surveyor with no negativity in revenue collection by the tax authorities (like scrutiny) attached, have to be considered as genuine hardship. WP allowed. - HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI AND HON'BLE MR. JUSTICE MUNNURI LAXMAN For the Petitioner(s) : Mr. T.C. Gupta (through VC). For the Respondent(s) : Mr. Sunil Bhandari. ORDER PER 1. This writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd pay the amount of interest levied. 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. The said principle, it is conceded, has not been applied by the courts below in this case, but we may take note of a few precedents operating in the field to highlight the aforementioned proposition of law. [See Priyanka Overseas Pvt. Ltd. Anr. v. Union of India ors. 1991 Suppl. (1) SCC 102, para 39, Union of India ors. v. Major General Madan Lal Yadav (Retd.) (1996) 4 SCC 127 at 142, paras 28 and 29, Ashok Kapil v. Sana Ullah (dead) ors. (1996) 6 SCC 342 at 345, para 7, Sushil Kumar v. Rakesh Kumar (2003) 8 SCC 673 at 692, para 65, first sentence, Kusheshwar Prasad Singh v. State of Bihar ors. (2007) 11 scc 447, paras 13, 14 and 16). Thus, the said principle, in our opinion, should be applied even in a case of this nature. A statutory authority despite receipt of such a request could have kept mum. It should have taken some action. It should have responded t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as is laid down in sub-Section (4A) of Section 132 of the Act, but such a presumption is a rebuttable one. In the absence of any request made by the Assessee himself, probably at that point of time, the same could not have been encashed. Appellant did not own the same in law. He did not make any request for its enchashment. Whether such a presumption should be raised or not was the subject matter of consideration by the Assessing Officer at the time of making its final assessment as the appellant himself filed an application before the Settlement Commission in terms of Section 245C(1) of the Act. 10. We are, therefore, of the opinion that interests of justice would be subserved if the impugned judgment is set aside and the matter is remitted to the Commissioner of Income Tax for consideration of the matter afresh. 4. Mr. Sunil Bhandari, learned counsel for the respondents submits that the ambit of Section 119 (2) (b) of the Income Tax Act could have been considered only if there was a genuine hardship and that too only for a period of six years, which is stipulated in the CBDT Circular No.09/2015 dated 09.06.2015 in pursuance of Section 119 (2) (b) of the Income Tax Act, which p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. (2) Without prejudice to the generality of the foregoing power, (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, authorise [any income-tax authority, not being a 12*** 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; 7. The relevant part of CBDT Circular, particularly, Paragraph 3 5 are reproduced hereunder: 3. No condonation application for claim of refund/loss shall be entertained beyond six years from the end of the assessment year for which such application/claim is made. This limit of six years shall be applicable to all authorities having powers to condone the delay as per the above prescribed monetary limits, including the Board. A condonation application should be disposed of within six months from the end of the month in which the application is received by the competent authority, as far as possible. 5. The powers of acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer of the petitioner-company was bed-ridden around June, 1991, as he was suffering from severe tuberculosis and the doctor had advised him to take complete bed rest for about three months. As per the averments made in the application dated October 1, 1999, the principal officer of the petitioner-company had taken treatment for tuberculosis which lasted for about seven to eight months. It is also clear from the averments made in the said application that around April, 1992, again the principal officer of the company had fallen sick and the doctor had diagnosed the disease to be typhoid and he was once again tied down to the bed. As there was no one to look after taxation matters of the company, the returns could not be filed in time in which refund was claimed. Section 119 (2) (b) of the Act empowers the Board to authorise any income-tax authority not being Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under the Act, after the expiry of the period specified by or under the Income-tax Act for making such application or claim and deal with the same on the merits in accordance with law. It is an admitted position that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remand of the matter. The core law of Section 119 (2) (b) of Income Tax Act read with CBDT Circular No.09/2015 dated 09.06.2015, both reproduced above, clearly reflect that if there is a genuine hardship, then a condonation of upto six years can be permitted. 13. Considering the overall perspective and peculiar facts of this case, including the age of the petitioner, the Section 119 (2) (b) of Income Tax Act read with CBDT Circular No.09/2015 dated 09.06.2015, which prescribes 06 years delay condonation on genuine hardship and the precedent law laid down by the Hon ble Apex Court in the matter on B.M. Malani s case (supra), this Court is of the firm opinion that the depression, old age, long pendency of the issue and the petitioner s status as a small-scale surveyor with no negativity in revenue collection by the tax authorities (like scrutiny) attached, have to be considered as genuine hardship. Thus, in these peculiar facts and circumstances, holding it to be a case of genuine hardship, the impugned order dated 27.02.2017 is quashed and set aside. The authority concerned shall accept the returns and decide the claim of the petitioner, while strictly adhering to the six years lim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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