TaxTMI 
TaxTMI 
TaxTMI 
2022 (5) TMI 1180
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....Form No.10B for A.Y.2014-15 and allow all consequential reliefs, allowances, deductions & exemptions as permissible under the Act. (c) To allow the petitioner to amend the petition in view of the order passed, if any, by the respondent disposing off the objections. (d) To call for the records of the proceedings, look into them and be pleased to issue a writ of certiorari or any other appropriate writ, order or directions quashing the impugned notice and order. (e) Pending the hearing and final disposal of this petition ask the respondent and its subordinates not to take any action or to do anything in furtherance and pursuance of this impugned order. (f) To allow this petition with cost. (g) To pass any further or other orders as the Hon'ble Court may deem proper in the interest of justice and in the circumstances of the case. 2. The impugned order passed by the respondent under Section- 119(2)(b) of the Income-tax Act, 1961 [for short 'the Act, 1961'] dated 17.06.2021 declining to condone the delay reads thus:- ORDER U/S/119(2)(b) OF THE INCOME-TAX ACT, 1961 The assessee vide letter dated 22.03.2021 has sought Condonation for delay in filing Form 10B for A.Y.20....
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....earing to the petitioner and considering the material available on record. There being no flaw in the decision making process as well as no violation of the principles of natural justice, the instant petition is misconceived and, therefore, requires to be dismissed. 4. The facts in a nutshell are that the petitioner filed return of income for A.Y. 2014-15 on 22.07.2014. An intimation u/s.143(1) came to be served on 16.03.2016. The petitioner filed Form 10B online on 18.03.2021 after long gap of 6 years without any application for condonation of delay. The petitioner - assessee filed an application under Section 119(2)(b) of the Act before the respondent on 22.03.2021 requesting for condonation of delay. The dates relevant are as under: Sr. No. Date Particulars 1 22.07.2014 Petitioner filed return of income. 2 16.03.2016 Intimation u/s.143(1). 3 18.03.2021 Petitioner filed Form 10B online without an application seeking condonation of delay. 4 22.03.2021 The petitioner filed an application for condonation of delay in filing Form 10B i.e. after delay of around 6 years. The above sequence clearly goes to show the lethargic and casual approach adopted by....
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....t bogus or merely a ruse). Further, a genuine hardship would, inter alia, mean a genuine difficulty. The ingredients of genuine hardship, must be determined keeping in view the dictionary meaning thereof and legal conspectus attending thereto. For the said purpose, another well known principle, namely, that a person cannot take advantage of his own wrong, may also have to be borne in mind. Compulsion to pay any unjust dues per se would cause hardship. But a question as to whether the default in payment of the amount was due to circumstances beyond the control 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 lim....
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....y highly pedantic approach should be eschewed and a justice-oriented should be adopted. It also observed that a party should not be made to suffer on account of technicalities. 23. In the light of the aforesaid discussion, we are of the opinion that an acceptable explanation was offered by the petitioner and a case of genuine hardship was made out. The refusal by the Central Board of Direct Taxes to condone the delay was a result of adoption of an unduly restrictive approach. The Central Board 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 paragraph 16 of the said judgment, this Court held as under : "16. In our opinion, in the present case, there woul....
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....a 26)." (iv) 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 been caused or not. A genuine hardship would, inter alia, mean a genuine difficulty. That per se would not lead to a conclusion that a person having large assets would never be in difficulty as he can sell those assets and 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....
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....sically 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 that the investment condition was undisputably met by the assessee could have been condoned taking a judicious and holistic view of the facts. The wide powers of the Central Board of Direct Taxes or other higher authorities of the Department to whom such powers can be delegated under Section 119 of the Act, need not always take only a pro revenue approach in such matters. Their approach in such cases should be equitious, balancing and judicious which should reflect the application of mind to the facts of the case and before denying the genuine claim of the assessee on the grounds of mere delay in making such claim, something more than the user of innocuous terms as employed in the present case, should be forthcoming. Technically, strictly and literally speaking, the Board might be justified in denying the exemption from capital gains tax by rejecting such condonation application, but an assessee, who substantially satisfies the condition for availing such exemption should not be denied t....
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....cribed investment in the form of Bonds of Infrastructure which she did make in the National Highways Authority." 8. We may also refer to and rely upon a decision of the Delhi High Court in the case of G.V. Infosutions Pvt. Ltd. vs. Deputy Commissioner of Income Tax, Circle 10(2) and others , reported in (2019) 261 taxmann.com 482 (Delhi) . We may quote the relevant observations thus : "8. The rejection of the petitioner's application under Section 119(2)(b) is only on the ground that according to the Chief Commissioner's opinion the plea of omission by the auditor was not substantiated. This court has difficulty to understand what more plea or proof any assessee could have brought on record, to substantiate the inadvertence of its advisor. The net result of the impugned order is in effect that the petitioner's claim of inadvertent mistake is sought to be characterised as not bonafide. The court is of the opinion that an assessee has to take leave of its senses if it deliberately wishes to forego a substantial amount as the assessee is ascribed to have in the circumstances of this case. "Bonafide" is to be understood in the context of the circumstance of any case. Be....