TaxTMI 
TaxTMI 
2017 (11) TMI 395
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....he sale proceeds in the Infrastructure Bonds within a period of six months from the transaction of sale of immovable property. The said investment was required to be made by the assessee on or before 26-01-2013, but she actually invested this amount on 23-07-2013. 2. To seek the condonation of delay under Section 119(2)(b) of the Act, the petitioner moved Central Board of Direct Taxes (CBDT) vide her representation Annexure-E dated 05-04-2013 and assigned the following reasons for seeking condition of delay. The relevant para of her Representation is quoted below for ready reference. " I am a consulting doctor regularly assessed for Income Tax in ward 6(4) in Bangalore. In the financial year relevant to Assessment year 2013-14, I have a sold a site which was at Bangalore for a total consideration of Rs. 1,25,00,000/- on 27.07.2012 (One crore twenty five lakh). Out of this consideration, I have purchased a flat in Bangalore and I wish to invest Rs. 50 lakhs in capital gain exemption bonds U/s 54 EC. I sold my site on 27.07.2012. I should have deposited in Bonds before 26.01.2013; however I could not put money in such deposits within this time p....
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....rchase of infrastructure bonds could not be made by her by issuing a cheque when another large value transaction for property advance was effected by her while remaining outside the country. 3. In view of the above and the fact that with the under the modern technology- enabled banking system, physical presence in India is not necessary, there does not appear to be merit in the argument that the applicant was prevented from making timely investment in eligible bonds due to her absence from India. Moreover, she was in India continuously for almost 2 months between her visits to USA but yet she did not make the eligible investment. Considering the fact that there are commission agents dealing in REC and NHAI Bonds, who collect cheque and documents from home, the applicant had abundant time to make the investments before leaving for the USA as well as between her two trips. 4. In view of the above, this case does not satisfy the requirement of genuine hardship envisaged in section 119(2)(b) and, accordingly, the petition is rejected. This is issued with the approval of Chairperson, CBDT. Sd/- 26.11.2014 (Anand Jha) Commissioner of Income Ta....
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....trol of the assessee, also bears consideration. 12. In the case of R. Seshammal (supra), the Madras High Court was pleased to observe as under (page 187 of 237 ITR): "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 there after 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 hyper technical 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" (emphasis supplied) 13. In the case of Sitaldas Motwani (supra), this court has held that the expression "genuine hardship" used in section 119(2)(b) of the said Act should be construed liberally, particularly in matters of entertaining of applications seeking condonation of delay. This court was pleased....
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....of Direct Taxes appears to have proceeded on the basis that the delay was deliberate, when from the explanation offered by the petitioner, it is clear that the delay was neither deliberate nor on account of culpable negligence or any mala fides. Therefore, the impugned order dated May 16, 2006, made by the Central Board of Direct Taxes refusing to condone the delay in filing the return of income for the assessment year 1997-98 is liable to be set aside. (ii) In Jay Vijay Express Carriers Vs Commissioner of Income Tax-III, (2013) 34 taxmann.com.61 (Gujarat), in relevant para 16 of the said judgment, the Court held as under: " 16. In our opinion, in the present case, there would be genuine hardship, if the time limit is not extended as otherwise, the entire claim of Rs. 17,84,323/- would be destroyed. The petitioner would neither get deduction in the assessment year 2005-06 nor in the year 2008- 09 as per then prevailing Section 40(a)(ia) of the Act. In our opinion, the petitioner was neither lethargic nor lacking in bona fides in making the claim beyond the period of limitation, which should have a relevance to the desirability and expedience for exercising such po....
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.... of any subsequent event the exemption would not operate. (see paras 23 and 24) Whenever the statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to severe consequences, such requirement would be mandatory. If the statute provide that a particular thing should be done, it should be done in the manner prescribed and not in any other way (see para 26).". 8. In the case of B.M.Malani Vs. Commissioner of Income Tax and another (2008) 219 CTR 313), the Court observed:- "8. The term 'genuine' as per the New Collins Concise English Dictionary is defined as under: "'Genuine' means not fake or counterfeit, real, not pretending (not bogus or merely a ruse)". For interpretation of the aforementioned provision, the principle of purposive construction should be resorted to. Levy of interest although is statutory in nature, inter alia for recompensating the Revenue from loss suffered by non-deposit of tax by the assessee within the time specified therefor. The said principle should also be applied for the purpose of determining as to whether any hardship had b....
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.... orders, instructions and directions of the Board: xxx xxx xxx (2) Without prejudice to the generality of the foregoing power:- (a) xxx xxx xxx (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, authorize any income-tax authority, not being 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:" 12. It is true that the so called reasons assigned by the respondent Central Board of Direct Taxes (CBDT) in the impugned order, on the face of it, do not appear to be whimsical or arbitrary reasons and it is equally true that such investment could be made by assessee very well before the cut off date also when she was physically present in India or even when she had gone back to USA on 20th February 2013. Nonetheless, the delay of six months in the circumstances in which it occurred, especially, in view of the fact th....