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TMI Blog2025 (1) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... aim as the same was for more than Rs. 10,00,000/-. The claim of the petitioner for the Assessment Year 2015-16 in respect of the very same contract was processed and refund was granted. In the meantime, there was outbreak of COVID pandemic. We are satisfied that a case making out compelling circumstances for filing the return belatedly is made out in the application filed by the petitioner. In the present facts, the petitioner has made out a case for condoning the delay in filing the application u/s 119 (2) (b) before the CBDT. There are adequate circumstances on record justifying the delay in filing application and hence, looking at the compelling reasons for the delay in filing the application the claim of the applicant ought to have been considered by the respondents on merits. Petition is accordingly allowed. - M. S. KARNIK NIVEDITA P. MEHTA, JJ. For the Petitioner: Mr K. Gopal with Mr Pramod Vaidya, Advocates. For the Respondents: Ms Susan Linhares, Standing Counsel. JUDGMENT: (PER M.S. KARNIK, J.) 1. Heard Mr Gopal, learned counsel for the petitioner and Ms Susan Linhares, learned Standing Counsel for the respondents. 2. The challenge in this petition under Article 226 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the Parallel Upper Ganga Canal Project. The project got completed only in the year 1997. 5. Due to certain disagreements between the petitioner and the Government of UP, the payments for executing civil work were halted. Therefore, the dispute was referred to the Arbitration. The Arbitral Tribunal pronounced an award in favour of the petitioner and directed the Government of UP to pay a sum of Rs. 27,58,71,006/- to the petitioner. The said award was challenged by the Government of UP before the Allahabad High Court without any success. Thereafter on further appeal before the Hon'ble Supreme Court, the Government of UP vide order dated 02.01.2014 was directed to pay the awarded amount with simple interest of 18%. As per the directions of the Supreme Court, the Government of UP paid the amount of Rs. 27,23,13,909/- in several tranches on various dates in the financial year 2014-15 relevant to the Assessment Year 2015-16 after deducting TDS of Rs. 4,07,03,990/-. 6. The return of income for the Assessment Year 2015-16 was filed on 31.10.2015 under Section 139 (1) of the Act claiming total refund of Rs. 4,07,03,990/- on account of TDS on the entire amount of award of Rs. 27, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. 10. The petitioner filed an application before the respondent no. 1 on 28.02.2022 under Section 119 (2) (b) of the Act seeking condonation of delay in filing the return for the Assessment Year 2014-15 and grant of refund of TDS credit. The petitioner explained that there is no tax liability and that the entire TDS amount deducted on the arbitration award is refundable. There is a reasonable cause of delay in filing the return of income for the Assessment Year 2014-15 and the petitioner would suffer grave hardship if the refund amount withheld for the Assessment Year 2014-15 is not released by the Department. Further, the petitioner, vide its letter dated 31.05.2023 reiterated the reasons for delay in filing the return for Assessment Year 2014-15 and AY 2015-16 and requested respondent no. 1 to consider the application filed under Section 119 (2) (b) of the Act on merits and direct the respondent no. 2 to process the refund accordingly. 11. After being satisfied with the petitioner's claim of refund for Assessment Year 2015-16, the application under Section 154 was disposed of on 26.06.2023 specifying the amount of refund of Rs. 1,37,58,591/-. The Assessing Officer after co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h such application/claim is made. This limit of six years shall be applicable to all authorities having power to condone the delay as per the above prescribed monetary limits, including the Board. 4. The Respondent no. 1 (CBDT) granted an opportunity to the petitioner to explain as to how its application for condonation of delay was maintainable in view of the aforesaid para no. 3 of Circular No. 9 of 2015. The petitioner filed reply dated 02.01.2024 admitting that the ROI was filed beyond the time limit and that the claim of refund made in the original ROI A.Y. 2015-16 was merely bifurcated to be in conformity with the deduction of TDS made in two years. However, the petitioner did not give any explanation as to why there was delay of more than six years in filing the application for condonation of delay. 5. The petitioner was granted opportunity to file written submissions in view of the adverse field report received during the course of the proceedings. The Respondent no. 1 vide Order dated 19.01.2024 rejected the application for condonation of delay on the ground that the petitioner had failed to make out a compelling reason for the delay in filing the application under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary circumstances only which would have led to delay in statutory compliance and the same cannot be exercised routinely. In view of the above settled position of law, the petitioner is not entitled to any relief and the petition be dismissed. 14. Before we consider the rival submissions, it would be pertinent to extract Section 119 (2) (b) of the Income Tax Act, 1961, which reads thus: (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 Joint Commissioner (Appeals) or a 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 15. Relevant in the context is the CBDT Circular No. 09/105 dated 09.06.2015. Para 3 of the Circular says that '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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar No. 09/2015 dated 09.06.2015. In this Circular, respondent No. 3 has been considered one of the Authorities who was vested with the powers to accept or reject the application under Section 119 (2) (b) of the Act. However, respondent No. 3 did not take cognizance of the application as he had no jurisdiction to process the application as the claim was more than Rs. 10,00,000/-. 19. It appears that respondent No. 3 did not pass any order disposing of the application of the petitioner. The Government of India in the meantime declared a nationwide lockdown in the wake of COVID-19, pandemic on 24.03.2020 which was extended from time to time. The petitioner filed an application to respondent no. 1 on 28.02.2022 under Section 119 (2) (b) of the Act seeking condonation of delay in filing the return for Assessment Year 2014-15 and a grant of refund of TDS credit. The petitioner gave a reasonable cause of such delay in filing the return. By application dated 31.05.2023, the petitioner reiterated the reasons for the delay in filing the return for Assessment Year 2014-25 and requested the respondent no. 1 to consider the application filed under Section 119 (2)(2) on merits and directed resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderations 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 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 appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Food (P.) Ltd. (2022) 142 taxmann.com 481 (SC) while observing that the decision of the Karnataka High Court may not be treated as a precedent in para 3 observed thus: 3. Having heard Shri N. Venkatraman, learned ASG and having considered the facts and circumstances due to which the respondent-assessee, at the relevant time, could not file the return of income within the time prescribed, the order passed by the High Court directing the Revenue to condone the delay and accept the belated return of income and to consider the return of income in accordance with law on merits does not warrant any interference. The facts which led to the assessee in late filing of the return of income are glaring. Therefore, no interference of this Court is called for, in exercise of powers under Article 136 of the Constitution of India. However, at the same time, the question of law, whether the CBDT, while exercising the powers under section 119 (2) (b) of the Income-tax Act, can direct to condone the delay in filing the return of income is kept open to be considered in an appropriate case. It is further observed that the impugned judgment and order passed by the High Court be not treated as a preced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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