R.balasundaram v. Commissioner Of Income Tax-Ii, O/O The Commissioner Of Income Tax-Ii

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.08.2018 CORAM : THE HONOURABLE MRS.JUSTICE J.NISHA BANU W.P(MD)No.17154 of 2013 R.Balasundaram... Petitioner vs. 1)Commissioner of Income Tax-II, O/o the Commissioner of Income Tax-II, No.2, V.P.Rathinasamy Road, Bibikulam, Madurai-625 002. 2)The Income Tax Officer, Ward 1(1), Dindigul.... Respondents Writ Petition is filed under Article 226 of the Constitutionof India, for issuance of a Writ of Certiorarified Mandamus,calling for the records relating to the impugned order dated03.12.2012passedbythe1[st]RespondentinC.No.109/23/CIT/II/2012-13, quash the same and further direct the 1[st]respondent to refer the petition filed by the petitioner forcondoning the delay in filing return of income for the assessmentyear 2009-10 to the Central Board of Direct Taxes as contemplatedin Circular No.670 dated 26.10.1993. For Petitioner: Mr.S.Anand Chandrasekar for M/s.Sarvabhauman AssociatesFor Respondents: Mrs.S.Srimathy Senior Standing Counsel for Income Tax ORDER The present writ petition has been filed for issuance of aWrit of Certiorarified Mandamus, calling for the records relatingto the impugned order dated 03.12.2012 passed by the 1[st] Respondentin C.No.109/23/CIT/II/2012-13, quash the same and further directthe 1[st] respondent to refer the petition filed by the petitionerfor condoning the delay in filing return of income for theassessment year 2009-10 to the Central Board of Direct Taxes ascontemplated in Circular No.670 dated 26.10.1993.https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: Mr.S.Anand Chandrasekar for M/s.Sarvabhauman AssociatesFor Respondents: Mrs.S.Srimathy Senior Standing Counsel for Income Tax ORDER The present writ petition has been filed for issuance of aWrit of Certiorarified Mandamus, calling for the records relatingto the impugned order dated 03.12.2012 passed by the 1[st] Respondentin C.No.109/23/CIT/II/2012-13, quash the same and further directthe 1[st] respondent to refer the petition filed by the petitionerfor condoning the delay in filing return of income for theassessment year 2009-10 to the Central Board of Direct Taxes ascontemplated in Circular No.670 dated 26.10.1993.https://hcservices.ecourts.gov.in/hcservices/ 2.Learned counsel for the petitioner would submit that for theaccounting year 2009-10, the petitioner has filed return of incomeon 30.01.2012 before the 2[nd] respondent making refund claim ofRs.1,17,404/-. The income tax return was filed after the duedates for filing return under Sections 139(1) and 139(4) of theIncome Tax Act, 1961 (hereinafter referred to as, ''the Act'') andthe due date under Section 139(1) of the Act, was 31.07.2009 anddue date for filing belated returns under Section 139(4) of theAct, was 31.03.2011. Therefore, an application under Section 119(2)(b) of the Act, was filed by the petitioner before the 1[st]respondent on 20.07.2012, to condone the delay in filing thereturn of income and seeking refund of income. Under Section 119(2)(b) of the Act, the Central Board of Direct Taxes has powersto, either by general or special order, authorise any income taxauthority to admit an application or claim for any exemption,deduction, refund or any other relief, after the expiry of theperiod specified under the Act for making such application orclaim and deal with the same on merits and in accordance with law.Such authorisation has been given by the Central Board of DirectTaxes vide instructions No.13/2006, dated 22.12.2006, authorisingthe Commissioners of Income Tax to admit the application forcondoning the delay for claim of refunds not exceeding Rs.10lakhs. Since in the instant case, the refund claim wasRs.1,17,404/-, an application was made before the 1[st] respondentunder Section 119(2)(b) of the Income Tax Act. The specificaverment of the petitioner is that he was not able to file returnof income in time due to heavy losses suffered in the business inthe subsequent year to the financial year 2008-09 and that newassignments were not forthcoming. The 1[st] respondent by impugnedorder dated 03.12.2012, rejected his application to condone thedelay in filing income tax return for the assessment year 2009-10,stating that the petitioner has filed return for the subsequentyears in time and therefore, he is aware of the statutoryobligation to file income tax return within the time limitprescribed under Sections 139(1) and 139(4) of the Act and hence,the reason stated by the petitioner that he was suffering fromfinancial burden in the business, was not convincing. As againstthe said order, the petitioner has filed this writ petition. 3.Learned Standing Counsel for the respondents would submitthat since there is a standing order by the authorities not toconsider the application for refund submitted beyond the timelimit, learned standing counsel for the respondents would statethat such claim of the petitioner made after the prescribed periodcannot be considered, for the reason that the petitioner has filedreturn for the subsequent years in time and therefore, he is awareof the statutory obligation to file the return within the timelimit prescribed under Sections 139(1) and 139(4) of the Act.https://hcservices.ecourts.gov.in/hcservices/Secondly, the burden will be cast upon the department to payinterest on the refund amount. 3.Learned Standing Counsel for the respondents would submitthat since there is a standing order by the authorities not toconsider the application for refund submitted beyond the timelimit, learned standing counsel for the respondents would statethat such claim of the petitioner made after the prescribed periodcannot be considered, for the reason that the petitioner has filedreturn for the subsequent years in time and therefore, he is awareof the statutory obligation to file the return within the timelimit prescribed under Sections 139(1) and 139(4) of the Act.https://hcservices.ecourts.gov.in/hcservices/Secondly, the burden will be cast upon the department to payinterest on the refund amount. 4.At this juncture, learned counsel for the petitioner wouldstate that the petitioner will not claim interest for the refundamount. The said submission is recorded. 5.In my considered opinion, since the petitioner has filedincome tax return for the subsequent years in time, that cannot bethe reason for rejecting his application to condone the delay infiling income tax return for the assessment year 2009-10,especially when authorisation has been given to the income taxauthority to admit the application for condoning the delay forclaim of refund in cases like the one in hand and therefore, theimpugned order dated 03.12.2012 passed by the 1[st] respondent inC.No. 109/23/CIT/II/2012-13 is set aside and the 1[st] respondent isdirected to consider the petitioner's application for refund forthe assessment year 2009-10 and pass orders within a period ofeight weeks from the date of receipt of a copy of this order. Thepetitioner is not entitled to interest for the refund amount, ifany, for the assessment year 2009-10. With the above direction, this writ petition is ordered. Nocosts. Sd/- Assistant Registrar(Record) /True Copy/ Sub Assistant Registrar(CS-III) To 1)Commissioner of Income Tax-II, O/o the Commissioner of Income Tax-II, No.2, V.P.Rathinasamy Road, Bibikulam, Madurai-625 002. 2)The Income Tax Officer, Ward 1(1), Dindigul. +1cc to Mrs.S.Srimathy, Advocate Sr.No.78879 BALA VB/RP/SAR3/06.09.2018/ 3P/ 4C W.P(MD)No.17154 of 201314.08.2018