I) Sri.a.balakrishnan v. General Manager – W.p

IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 26 DAY OF AUGUST, 2022 BEFORE THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR -WRIT PETITION No.28461 OF 2019(TIT) BETWEEN: SUBASH MENON AGE 54 YEARS OCCUPATION: PRIVATE SERVICE PRESENT ADDRESS: NO. 86/1, NANDUDURGA ROAD BENSON TOWN, BENGALURU – 560 046. (BY SRI. MANOJ DEVINDER, ADVOCATE) …PETITIONER AND: 1. THE PRINCIPAL COMMISSIONER OF INCOME TAX-6 5 FLOOR, BMTC BUILDING, 80 FT ROAD KORMANGALA 6 BLOCK BENGALURU – 560 095. 2. THE DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 12(3) NO. 14/3, 4 FLOOR, RASHTROTHANA BHAVAN NRUPATHUNGA ROAD, BENGALURU – 560 001. …RESPONDENTS (BY SRI. K.V. ARAVIND, ADVOCATE) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED: 05.07.2018 PASSED BY R-1 IN THE CASE OF PETITIONER IN ANNEXURE-A AND ETC. THIS W.P. COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER In this petition, petitioner has sought for the following reliefs: a. Issue writ of certiorari to set aside the Order dated 05.07.2018 passed by respondent No.1 vide F.No.119(2)(b) / PR.CIT – 6 / 2017-18 in the case of petitioner in Annexure ‘A’; dated 05.07.2018 passed by respondent No.1 vide F.No.119(2)(b) / PR.CIT – 6 / 2017-18 in the case of petitioner in Annexure ‘A’; b. Mandamus directing respondent No.1 to condone the delay in filing the revised return dated 25.07.2016 with e-filing Acknowledgment No.298230980250716 vide Annexure ‘J’ electronically filed vide Internet Protocol address of the Chartered Accountant / Tax Practitioners belatedly; condone the delay in filing the revised return dated 25.07.2016 with e-filing Acknowledgment No.298230980250716 vide Annexure ‘J’ electronically filed vide Internet Protocol address of the Chartered Accountant / Tax Practitioners belatedly; c. Mandamus directing jurisdiction Assessing Officer / respondent No.2 to grant refund of Excess tax Rs.24,83,851/- claimed by petitioner in Annexure – J dated 25.07.2016 with e-filing Acknowledgment No.298230980250716 along with interest under Sec.244/244A of IT Act; and Officer / respondent No.2 to grant refund of Excess tax Rs.24,83,851/- claimed by petitioner in Annexure – J dated 25.07.2016 with e-filing Acknowledgment No.298230980250716 along with interest under Sec.244/244A of IT Act; and d. Or order/s direction/s as this Hon’ble Court deems fit with costs. deems fit with costs. 2. Heard learned counsel for the petitioner and learned counsel for the respondents – revenue and perused the material on record. 3. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioner submits that the application dated 25.07.2016 filed by the petitioner under Section 119 (2) (b) of the Income Tax Act, 1961 (for short ‘the I.T.Act’) seeking condonation of delay in filing returns of income for the assessment year 2008-09 was rejected on the sole ground that the same was beyond the period of limitation of six years prescribed as per Instruction No.13 / 2006 dated 22.12.2006. In this context, learned counsel submits that the said Instruction was not applicable to the instant case inasmuch as the down graded salary for the aforesaid assessment year was processed by the respondents and an intimation in this regard dated 31.01.2010 had been issued, pursuant to which, the petitioner submitted a representation on 07.08.2013 seeking refund of the excess tax paid by him. Subsequently, petitioner filed an application dated 19.02.2015 seeking rectification / modification which was partially allowed by the respondents on 05.03.2015. Pursuant thereto, petitioner submitted revised returns along with the application for condonation of delay which was rejected by the respondents by passing the impugned order, which is assailed in the present petition. In support of with the application for condonation of delay which was rejected by the respondents by passing the impugned order, which is assailed in the present petition. In support of his contentions, learned counsel for the petitioner placed reliance upon the following decisions:- (i) Sri.A.Balakrishnan vs. General Manager – W.P.No.16447/2006 dated 01.02.2007 and confirmed in W.A.No.572/2007 dated 31.10.2007 and further confirmed by the Apex Court in SLP 991/2009 dated 02.02.2009; AND (ii) Gopalan Thyagarajan vs. Commissioner of Income Tax – W.P.No.10726/2011 dated 11.12.2017. 4. Per contra, learned counsel for the respondents submit that there is no merit in the petition and that the same is liable to be dismissed. 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 the Instruction No.13/2006 dated 22.12.2006 was not applicable to the facts of the instant case since the intimation dated 31.10.2010 was issued by the respondents to the petitioner, which was followed by subsequent proceedings between the petitioner and respondents culminating in a rectification order passed on 05.03.2015, the respondents clearly fell in error in coming to the conclusion that the application for condonation of delay filed by the petitioner was beyond the period of limitation and the impugned order being not only contrary to the facts of the instant case but also the aforesaid decisions, the same deserves to be set aside and the matter remitted back to the respondents to consider his claim for refund in accordance with law by condoning the delay in filing the revised returns. 6. In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned order at Annexure – A dated 05.07.2018 passed by the 1[st] respondent is hereby quashed. (iii) The delay on the part of the petitioner in filing the revised returns for the Assessment Year 2008-2009 claiming refund from the respondents is hereby condoned. (iv) Respondents are directed to consider the claim for refund with applicable interest if any, as sought for 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 date of receipt of a copy of this order. Sd/- JUDGE SV/SRL