Shri Laddulal Sharma v. The Principal Commissioner, Incometax-1

HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Writ Petition No.9350/2019 Shri Laddulal Sharma v/s The Principal Commissioner, IncomeTax-1 Indore, dated 14.01.2020 Shri P.M Choudhary, learned senior counsel alongwith Shri Anand Prabhawalkar, learned counsel for thepetitioner. Ms. Veena Mandlik, learned counsel for therespondent. The petitioner before this Court, a practicingadvocate, has filed this present petition being aggrieved bythe order dated 15.03.2019 passed by the PrincipalCommissioner, Income Tax – I, Indore under Section 119(2)(b) of the Income Tax Act, 1961 for the Assessment Year2015 – 16. The petitioner's contention is that the petitioner isan advocate practicing before this Court and is a regularincome tax payee. The subject matter of the present writpetition relates to the Assessment Year 2015 – 16 and at therelevant point of time, the petitioner was serving as aDeputy Government Advocate for pleading cases ofGovernment before the High Court of Madhya Pradesh,Bench at Indore.. The petitioner filed his return of income on02.12.2015 for the assessment year 2015 – 16 declaring theincome from the salary received from the State of MadhyaPradesh as well as income from other sources. The due datefor filing the return for the year under consideration was07.09.2015 (the original date was 31.07.2015 and it was extended to 07.09.2015). The return was filed belatedly bya delay of 86 days. The contention of the petitioner is that there was adelay of 86 days and Section 139 (4) of the Income TaxAct, 1961 permits the assessee to file return who has notfiled return within the prescribed due date. He is permittedto file return before expiry of one year from the end ofrelevant Assessment Year or before completion of theassessment, whichever is earlier. The petitioner, as percomputation of income, was entitled for a refund ofRs.43,590/-. The petitioner has further stated that the procedureprovided for filing electronic return is that after uploadingthe return electronically, the assessee is required to forwardthe duly signed acknowledgment generated online to theCentral Processing Unit of the Income Tax Departmentwithin 120 days from the date of uploading of the returnand in the present case, the last date for filing theacknowledgment was 01.04.2016. The petitioner has further stated that his wife wascritically ill and he could not submit the acknowledgmentto the CPC, Banglore within the prescribed limit but it wassent after a delay of 335 days. The CPC, Banglore hasreceived the said acknowledgment on 01.03.2017. Thepetitioner's contention is that the return was electronicallyuploaded well within the statutory period prescribed forfiling belated returns under Section 139 (4) of the IncomeTax Act, 1961 but there was a technical default of notsending the acknowledgment to CPC, Banglore within 120 days from the date of filing of such return. The petitioner has further stated that to meet thesituation, the petitioner has submitted an application underSection 119 (2)(b) of the Income Tax Act, 1961 before theCommissioner of Income Tax – I on 07.11.2017 andcategorically stated that he is 76 years of age and onaccount of illness of his wife, he was not able to send theacknowledgment to CPC within the stipulated time. It wasalso brought to the notice of the Commissioner that anamount of Rs.43,586/- has been deducted as TDS from theincome received as salary by the petitioner and he isentitled for refund. The petitioner has filed filed Form –26AS reflecting the TDS. days from the date of filing of such return. The petitioner has further stated that to meet thesituation, the petitioner has submitted an application underSection 119 (2)(b) of the Income Tax Act, 1961 before theCommissioner of Income Tax – I on 07.11.2017 andcategorically stated that he is 76 years of age and onaccount of illness of his wife, he was not able to send theacknowledgment to CPC within the stipulated time. It wasalso brought to the notice of the Commissioner that anamount of Rs.43,586/- has been deducted as TDS from theincome received as salary by the petitioner and he isentitled for refund. The petitioner has filed filed Form –26AS reflecting the TDS. The petitioner has also placed reliance upon circularissued by CBDT dated 09.06.2015 and his contention isthat the Principal Commissioner was competent to condonethe delay as provided under the circular where the amountof claim is less than Rs.10,00,000/- for any one AssessmentYear. The petitioner's grievance is that the PrincipalCommissioner has rejected the prayer for condonation ofdelay vide order dated 15.03.2019 stating that noreasonable cause has been provided by the petitioner for thedelay caused in sending ITR-V to CPC, Banglore. The petitioner has prayed for the following reliefs :-(A)The Hon'ble Court may be pleased to issue awrit of certiorari and / or any other appropriate writ,direction or order requiring the respondents to certifyto this Hon'ble Court all the records of this case inwhich the impugned order dated 15.03.2019(Annexure-P/1) has been passed and after examining the legality and / or propriety thereof, quash the same. (B)The Hon'ble Court may be pleased to issue awrit of mandamus and / or any other appropriate writ,direction or order, directing the respondent to exercisethe discretion contemplated u/s 119 (2)(b) of theIncome Tax Act, 1961 and condone the delay causedin sending acknowledgment to CPC, Banglore. (C)Any other appropriate writ, direction or orderand grant such other appropriate relief which thisHon'ble Court may deem fit in the facts and circumstances of the case. (D)To award the cost of this petition in favour ofthe petitioner. A reply has been filed by the Income TaxDepartment and they have admitted in the return that theCommissioner does have the power to condone the delay,however, in the present case, as reflected from order dated15.03.2019, the petitioner could not prove anycircumstances showing genuine hardship in his case andaccordingly, the application for condonation of delay wasrejected. The respondent has further stated that the schemedoes provide for condonation of delay and the same is notautomatic, however, there has to be a genuine and validreason for condonation of delay. This Court has carefully gone through the writpetition as well as the reply filed by the respondent. In thepresent case, the petitioner did submit his return keeping inview Section 139 (4) of the Income Tax Act, 1961. Thereturn was filed electronically and the CPC, Banglore received duly signed acknowledgment, which wasgenerated online at the time of filing of the return on01.03.2017. The petitioner was required to submitacknowledgment to CPC, Banglore within 120 days fromthe date of filing of the return and on account of the factthat petitioner's wife was critically ill, he could not submitthe acknowledgment to the CPC, Banglore within 120 daysfrom the date of filing of such return. It is nobody's casethat the petitioner did not file return keeping in viewSection 139 (4) of the Income Tax Act, 1961. There wascertainly a delay and the petitioner is aged about 78 years,his wife was critically ill, she was hospitalized for morethan two months and he was running from pillar to post forthe treatment of his wife. received duly signed acknowledgment, which wasgenerated online at the time of filing of the return on01.03.2017. The petitioner was required to submitacknowledgment to CPC, Banglore within 120 days fromthe date of filing of the return and on account of the factthat petitioner's wife was critically ill, he could not submitthe acknowledgment to the CPC, Banglore within 120 daysfrom the date of filing of such return. It is nobody's casethat the petitioner did not file return keeping in viewSection 139 (4) of the Income Tax Act, 1961. There wascertainly a delay and the petitioner is aged about 78 years,his wife was critically ill, she was hospitalized for morethan two months and he was running from pillar to post forthe treatment of his wife. The Central Board of Direct Taxes, to cater to suchcontingency, has issued a circular dated 09.06.2015 and adiscretion has been provided to the Principal Commissionerto condone the delay in such cases. The petitioner didmention about the illness of his wife, about hospitalizationof his wife and in all fairness, the delay should have beencondoned. It is not a case of evasion of income, it is not acase where no income tax return was filed, it is only a case,in which, Form No.V was not forwarded to the CPC,Banglore in the prescribed time. The return for assessmentyear 2015 – 16 was filed on 02.12.2015 and Form No.Vwas received by the CPC, Banglore on 01.03.2017.Reasonable cause was explained in the applicationsubmitted by the petitioner and the Principal Commissionerhas brushed aside the factum of illness of the wife of the petitioner by stating that after discharge from the hospital,the assessee's wife has taken routine treatment and theassessee was not prevented from the filing the return up toMarch, 2017 under Section 139 (4) of the Income Tax Act,1961. The present case is certainly a case of genuinehardship to the assessee and the discretion should havebeen exercised in favour of the assessee. The TDS, whichthe assessee was claiming, was in respect of tax deducted atsource by the State of Madhya Pradesh, as the assessee wasa Government Advocate, and therefore, the order dated15.03.2019 is hereby quashed. The assessee's applicationdated 07.11.2017 for condonation of delay under Section119 (2)(b) of the Income Tax Act, 1961 claiming refund ofRs.43,590/- in respect of Assessment Year 2015 – 16 isallowed. The respondent is directed to process the case of thepetitioner for refund, as claimed by the assessee, ignoringthe delay. The exercise of processing the case and passingthe final order ignoring the delay be concluded within aperiod of three months from the date of receipt of certifiedcopy of this order. With the aforesaid, the present Writ Petition standsallowed. Certified copy, as per rules. (S.C. SHARMA) J U D G E (SHAILENDRA SHUKLA) J U D G E RaviDigitally signed by Ravi Prakash Date: 2020.02.10 13:22:31 +05'30'