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TMI Blog2025 (2) TMI 126X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 05.07.2018, which was the subject matter of challenge in the writ petition is justified. Surely in the facts, the respondent cannot be given the benefit of his own wrong though the claim for refund even if genuine and bonafide, but surely the direction for grant of applicable interest, if any, could not have been directed. This is for the reason, the interest is payable for the delay attributed to the opposite party. In this case, despite the instruction dated 22.12.2006 stipulates filing of application seeking condonation of delay, the same having not been filed till 31.03.2015, but only on 25.07.2016, was rightly rejected by the appellants. So, the instruction contemplates, any claim for refund, within six years from the end of the assessment year for which the application/claim is made, necessarily has to be with an application for condonation of delay, which claim/refund has arisen as a result of excess tax deducted/collected at source. Hence, the order of learned Single Judge to the extent claim of the respondent was to be considered with interest, is set aside. It is made clear that the appellant shall consider the claim for refund of the respondent as directed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uest of the respondent. The respondent filed revised return of income to claim refund of excess tax on 25.07.2016 and also filed an application for condonation of delay under Section 119 (2) (b) of the Act. The said application was rejected by the competent authority on 05.07.2018 as the application was filed beyond 6 years. 3. The case of the respondent before the learned Single Judge was, that he is entitled to the condonation of delay in filing the revised return dated 25.07.2016 and with a further prayer to grant refund of excess tax of Rs. 24,83,851/- with interest. 4. The case of the appellant-Revenue before the learned Single Judge was, by relying upon a circular dated 22.12.2006 wherein clause-4 states that, no fresh application for claim of refund will be entertained beyond six years from the end of the assessment year for which the application/claim is made. 5. The learned Single Judge has, in paragraph No.5, stated as under: "5. As rightly contended by the learned counsel for the petitioner, in the light of the aforesaid judgments in A. Balakrishnan's case and Gopalan Thyagarajan's case supra, coupled with the material on record, which clearly indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the relevant assessment year or before the completion of the assessment, whichever is earlier. He also referred to instruction dated 22.12.2006, which contemplates filing of applications/claims for refund upto six years from the end of the assessment year. In that sense, the filing of application for condonation of delay filed on 25.07.2016, was beyond limitation of 6 years which expired on 31.03.2015. In other words, the relevant assessment year being 2008-09, the six years had started running from 01.04.2009 and expired on 31.03.2015. Concedingly, the first letter to revise the return was filed only on February 10, 2011 i.e., after the limitation period as prescribed under Section 139 (5) of the Act (though return was processed on 30.10.2010) had expired. He stated, even the application seeking condonation of delay for filing revised return beyond the end of the assessment year was filed only on 25.07.2016, hence the condonation of delay application was rightly rejected. He also states that, Section 119 (2) (b) which reads as under only contemplates a situation for an Assessee making an application for refund: "119. Instructions to subordinate authorities.-- xx xx xx x ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent for refund with applicable interest, if any? 9. The plea of Sri. Dilip is primarily with regard to direction given by the learned Single Judge for considering the claim with applicable interest. According to Sri. Dilip, the direction in respect of interest would be inequitable in the facts when the respondent was clearly at fault in not filing the revised return in time. Though he do concede that the respondent had sent communications dated 10.02.2011 and 07.08.2013 for revision and refund of excess tax, but the respondent had not filed his revised return which is a pre-requisite for seeking the refund. This plea of Sri. Dilip was tried to be justified by Sri. Kumar by stating that, the same are sufficient communications to the appellants in the facts of this case to refund the excess tax as, by December 2010, when revised TDS was issued, the limitation to file revised return has expired. In fact he stated that, in the communication dated 07.08.2013, the respondent had stated that the said communication be treated as revised return as the time to file revised return under Section 139 (5) of the Act had expired. Though the submission is appealing on a first blush, but on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d at source and payments of advance tax under the provisions of Chapters XVII-B, XVII-BB and XVII-C respectively and the amount of refund does not exceed Rs. 50,00,000 in respect of CCsIT and Rs. 10,00,000 in respect of CsIT for any one assessment year; (b) The income of the assessee is not assessable in the hands of any other person under any of the provisions of the Act; and (c) No interest will be admissible on the belated refund claims." So, the instruction contemplates, any claim for refund, within six years from the end of the assessment year for which the application/claim is made, necessarily has to be with an application for condonation of delay, which claim/refund has arisen as a result of excess tax deducted/collected at source. Hence, the order of learned Single Judge to the extent claim of the respondent was to be considered with interest, is set aside. 10. Hence, the direction (iv) of the learned Single Judge is modified, which henceforth shall read as under: "(iv) Respondents are directed to consider the claim for refund as sought by the petitioner in Annexures - J and K dated 25.07.2016 and in accordance with law within a period of four weeks from the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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