TaxTMI 
TaxTMI 
2024 (8) TMI 289
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.... 2. The petitioner, who is an Insurance Surveyor, filed an application on 12.05.2016 seeking condonation of delay under Section 119 (2) (b) of the Income Tax Act in order to claim a refund for the assessment year 2009-10 to 2014-15. However, the respondents rejected the application for condonation of delay on 27.02.2017. 3. Mr. T.C. Gupta, learned counsel appearing on behalf of the petitioner, submits that the petitioner, a senior citizen now aged about 72 years, faced genuine hardship, and thus, ought to have been granted benefit under Section 119 (2) (b) of the Income Tax Act read with CBDT Circular dealing with the relaxation/delay condonation dated 09.06.2015 (Annexure-3). 3.1 Mr. Gupta, learned counsel has relied upon the precedent law laid down by the Hon'ble Apex Court in the matter of B.M. Malani Vs. Commissioner of Income Tax & Anr. : Civil Appeal No.5950 of 2008 (Arising out of SLP (C) No.4091 of 2007), the relevant excerpt whereof is reproduced hereunder: 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)" ....
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.... But a question, however, would further arise as to whether the default in payment of the amount was due to circumstances beyond the control of the assessee. Unfortunately, this aspect of the matter has not been considered by the learned Commissioner and the High Court in its proper perspective. The Department had taken the plea that unless the amount of tax due was ascertainable, the securities could not have been sold and the demand draft could not have been encashed. The same logic would apply to the case of the assessee in regard to levy of interest also. It is one thing to say that the levy of interest on the ground of non-payment of correct amount of tax by itself can be a ground for non-acceding to the request of the assessee as the levy is a statutory one but it is another thing to say that the said factor shall not be taken into consideration at all for the purpose of exercise of the discretionary jurisdiction on the part of the Commissioner. Appellant volunteered that the securities be sold. Why the said request of the appellant could not be acceded to has not been explained. It was a voluntary act on the part of the appellant. It was not even a case whe....
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....ly not been defined under the Act. Whether there is genuine hardship or not depends upon the facts of each case and no fixed criteria in the strait jacket formula can be laid down for the said purpose. In the given case, admittedly, the returns were filed much beyond time. Nothing has been stated on behalf of the petitioner explaining the delay in filing the returns, on the other hand, the Board has found that this is a very deliberate attempt on the part of the petitioner to escape the liability under the Act. Detailed reasons are stated in paragraph 4 of the order, the relevant part whereof is quoted hereunder: "The due dates for filing the return were before March 31, 1995, and March 31, 1996. However, the returns were filed on October 9, 1998. It is further noted that the assessee has deliberately filed his returns much after the due date only to escape the scrutiny assessment. For example for the assessment year 1993-94, the net profit shown by the assessee is very low. There is no audit report enclosed with the return. In the balance-sheet, the assessee has shown unsecured loans and other finance as liabilities. The late filing of return apparently indicates....
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.... hardship on merits. The Pr.CCIT/CCIT/Pr.CIT/CIT dealing with the case shall be empowered to direct the jurisdictional assessing officer to make necessary inquiries or scrutinize the case in accordance with the provisions of the Act to ascertain the correctness of the claim." 8. This Court has examined the reason given by the petitioner before the authority was that he is a senior citizen with a limited income from survey fee payments from an Insurance Company. As a result, he was unable to file his income tax returns for the relevant assessment years on time. The impugned order also takes notice of the fact that the assessee has deposed that he was under depression during that period, which was coupled by the old age. 9. This Court considered the vehement opposition of the respondents that no genuine hardship reason has been established in the instant case, and thus, once the key word of the legislation i.e. the genuine hardship does not operate, then the provisions of Section 119 (2) (b) of the Income Tax Act would not apply, but this Court does not agree with such proposition. 10. This Court also finds that judgment rendered by the Hon'ble Patna High Court in the case o....
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....application for refund is rejected only on the ground that the case of genuine hardship was not made out by the petitioner. At this stage, it would be advantageous to refer to the decision of the Madras High Court which is relied upon on behalf of the petitioner. The Madras High Court in R, Seshammal's case [1999] 237 ITR 185 has held as under (page 187) : "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 thereafter 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." 12. The respondents had opposed the application seeking condonation of delay under Section 119 (2) (b) of the Income Ta....