TaxTMI 
TaxTMI 
TaxTMI 
2009 (12) TMI 36
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....Act" for short), whereby and whereunder, the prayer for condonation of delay in filing the return for claiming refund for the A.Y.2000-01 was rejected. FACTUAL MATRIX 2. The undisputed factual matrix drawn from the impugned order are, that the Assessee, a Nonresident Indian settled in Hong Kong, is assessable to tax by the Joint Director of Income Tax (International Taxation), Range3, Mumbai, falling under the jurisdiction of the D.I.T. (International Taxation), Mumbai. During the accounting year relevant to the A.Y.2000-01, he invested in the shares of Indian Companies and earned Short Term Capital Gains of Rs.2,09,05,250/-. The concerned bank with whom the assessee was maintaining his regular account, deducted the tax at source @ 30%. ....
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.... of claiming refund but under compelling legal obligation under the Income Tax Act,1961. iii) If the return was not filed the assessee might have been penalized or prosecuted for concealment of income. Also, if the delay is not condoned the assessee will be deprived of his legitimate claim of refund. This can be considered has "genuine hardship" to the assessee for the purpose of application u/s.119(2)(b). iv) Further in support of his claim for refund the assessee submitted that: (a) Income of Rs.20,93,84,490/- is derived from shares in Indian companies which are specified assets u/s.115C(f) of the Act. (b) The said shares are foreign exchange assets acquired or purchased from convertible foreign exchange through NRE Account; (c)....
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....rn within the due date, and in fact are only consequences of his failure to do so. 8. The respondent No.1, with regard to the correctness of the refund claim is concerned, observed that the income generated from the sale of assets cannot be said to be an income derived from assets. In this view of the matter, the prayer for condonation of delay came to be rejected by the impugned order. 9. Being aggrieved by the aforesaid order, the petitioner has invoked the extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. RIVAL SUBMISSIONS: 10. Mrs.Shobha Jagtiani, learned Counsel appearing on behalf of the petitioner urged that the petitioner was under bonafide belief that since the tax has been deducted ....
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.... 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)". 18. 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 wellknown principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind." The Gujarat High Court in the case of Gujarat Electric Co. Ltd. Vs. CIT 255 ITR 396, was pleased to hold as under: "The Board was not justified in rejecting the claim for refund on the ground that a case of genuine hardship was not made out by the petitioner an....
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....d down by the Apex Court referred to hereinabove and while considering this aspect, the authorities are expected to bare in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late. 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. When substantial justice and technical considerations 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 ....