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TMI Blog2024 (8) TMI 1437X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 i.e. within five months from the date of receipt of the order of the Tribunal. In such circumstances, as held in case of Hindalco Industries Ltd. [ 2024 (1) TMI 1039 - BOMBAY HIGH COURT] the Commissioner should not have taken a pedantic approach but the approach ought to have been liberal and as per the provisio to Section 264(3) of the Act, he ought to have considered the sufficient cause for delay in preferring the application as there was no negligence on the part of the petitioner nor there was any bona-fide which can be imputable to the petitioner and revisional power ought to have been exercised to advance the substantial justice. Adopting the above reasoning and considering the facts of the case, the impugned order passed by dated 20th March, 2020 passed by the respondent under Section 264 of the Act is hereby quashed and set aside and the delay in preferring the revision application is ordered to be condoned and the matter is remanded back to the respondent to decide the same on merits. - Honourable Mr. Justice Bhargav D. Karia And Honourable Mr. Justice Niral R. Mehta For the Petitioner(s) : Mr B S Soparkar For the Respondent(s) : Mr. Varun K. Patel ORAL JUDGMENT (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reat the various subsidies as capital receipt instead of revenue receipt as erroneously offered in return of income. 4.6. The petitioner also requested the respondents to condone the delay in filing of the revision application as per provisions of Section 264(3) of the Act. 4.7. However, the respondent-Principal Commissioner of Income Tax by the impugned order dated 20th March, 2020 rejected the revision application of the petitioner on the ground of limitation by not entertaining the application to condone the delay in preferring the revision application. The petitioner being aggrieved has preferred this petition. 5.1. Learned advocate Mr.B.S.Soparkar for the petitioner submitted that in view of the order passed by the Tribunal, it is not in dispute that the subsidies received by the petitioner on various grounds as stated hereinabove are capital receipt and not revenue receipt and therefore the petitioner has filed the revision application for revising the return by considering such subsidies offered as revenue receipt erroneously instead of capital receipt by reducing the loss to that extent. 5.2. It was submitted that the respondent without considering the provisio to Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other hand, learned advocate Mr.Varun Patel for the respondent submitted that the CIT (Appeals) is bound by the provisions of the Act and has rightly not condoned the delay as admittedly the revision application filed by the petitioner is beyond the period of one year as prescribed under the provisions of Section 264(3) of the Act. 6.2. It was submitted that the petitioner has not given any reason much less any cogent reason for preferring the revision application late after more than three years and accordingly, no interference is called for in the impugned order passed by the respondent- authority. 6.3. It was submitted that as per Subsection (3) of Section 264 of the Act, the assessee has to make an application within one year from the date on which the order in question was communicated or the date on which otherwise came to know of it which ever is earlier. However, in the facts of the case, time to file application under Section 264 had already expired on 16.01.2018 because the intimation under Section 143(1) of the Act was communicated to the petitioner on 17.01.2017 and when the petitioner filed the revision application on 01.07.2019, it was admittedly beyond the time limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lth (P.) Ltd. v. Addl. CIT [Writ Petition No. 15544 of 2023, Dated 19-12-2023], which read as under: 9. While considering the genuine hardship, the PCCIT was not expected to consider a solitary ground as to whether the assessee was prevented by any substantial cause from filing the corrections within a due time. Other factors also ought to have been taken into account. The phrase genuine hardship used in Section 119(2)(6) of the Act should have been construed liberally. The Legislature has conferred the power to condone the delay to enable the authorities to do substantial justice to the parties by disposing the matters on merits. The expression 'genuine' has received a liberal meaning in view of the law laid down by the Apex Court and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay, does not stand to benefit by lodging erroneous returns. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the officer who was looking after the taxation matters of the petitioner... (p. 737). The Madras High Court in the case of R. Seshammal (P.) Ltd. (supra), 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, even though the monies were not actually required to be paid by them and thereafter, seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the authorities concerned. The State is not entitled to plead the hypertechnical plea of limitation in such a situation to avoid return of the amounts. Section 119 of the Act vests ample power in the Board to render justice in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund (p.187) 15. The phrase genuine hardship used in section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12-10-1993. The Legislature has conferred the power to condone delay to enable the authorities to do substantive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consider the prayer for condonation of delay in its proper perspective. As such, it needs consideration afresh. 10. This was followed by this Court in Artist Tree (P.) Ltd. v. Central Board of Direct Taxes [2014] 52 taxmann.com 152 (Bombay.), relied upon by Mr. Walve, where paragraph nos. 19, 21 and 23 read as under 19. The circumstance that the accounts were duly audited way back on 14 September 1997, is not a circumstance that can be held against the petitioner. This circumstance, 8 pton the contrary adds force to the explanation furnished by the petitioner that the delay in filing of returns was only on account of misplacement or the TDS Certificates, which the petitioner was advised, has to be necessarily filed alongwith the Return of Income in view of the provisions contained in Section 139 of the said Act read alongwith Income-tax Rules, 1962 and in particular the report in the prescribed Forms of Return of Income then in vogue which required an assessee to attach the TDS Certificates for the refund being claimed. The explanation furnished is that on account of shifting of registered office, it is possible that TDS Certificates which may have been addressed to the earlier of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits and in accordance with law. 8. It will be also useful to reproduce paragraphs 11 and 12 of EBR Enterprises v. Union of India [2018] 89 taxmann.com 194/2017(12) TMI 425, which read as under: 11. Coming back to the impugned Order, the Commissioner has observed there are binding decisions which require each and every day's delay to be explained. The Commissioner has made a reference to a decision of the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji Others. However, the Commissioner has ignored the ratio of the said decision. In paragraph 4 of the said decision, the Apex Court has held thus : 4. And such a liberal approach is adopted on principle as it is realized that : 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. Every day's delay must be explained does not mean that a pedantic approach should be made. Why not every hour's delay, ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e because that was a case where the Court was considering the provisions of Section 147 for reopening the assessment. The Court was considering whether the question of change of opinion would arise when an order under section 143(1) (a) of the Act had been passed. 8. The provisions of Section 264 and the power available to the Commissioner to exercise under section 264 of the Act came up for consideration before the Division Bench of this Court in Hindustan Diamond Company Pvt. Ltd. v. CIT [(2003) 175 Taxation 91 (Bom)]. The Division Bench was pleased to observe that exercise of power under section 264 was not subject to the power of the Assessing Officer to make adjustment under section 143(1) of the Act. The Court held that power of the Commissioner under section 264 is rather wide and even the errors committed could be rectified. Paragraph 6 of the Hindustan Diamond Company Pvt. Ltd. (supra) reads as under: 6. Having heard the Counsel on both sides, we are of the opinion that the Commissioner was not justified in rejecting the revision application of the assessee. As rightly contended by Mr.Inamdar, Section 264 confers wide jurisdiction on the Commissioner. Proceedings under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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