Shyam Sunder Nirankari v. Commissioner Of Income Tax, Karnal And Another

CWP No.6223 of 2015 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.6223 of 2015 Date of Decision : 20.08.2015 Shyam Sunder Nirankari Versus ..... Petitioner Commissioner of Income Tax, Karnal and another .... Respondents 1.Whether the Reporters of the local papers may be allowed to see the judgment?the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? CORAM: HON'BLE MR. JUSTICE AJAY KUMAR MITTALHON'BLE MR. JUSTICE RAMENDRA JAIN Present: Mr. Rohit Gupta, Advocate for the petitioner. Mr. Yogesh Putney, Advocate for the respondents. RAMENDRA JAIN, J. The petitioner by way of present civil writ petition seeksquashing of the order dated 29.10.2014 (Annexure P-8) passed byrespondent No.1 under Section 119 (2) (b) of the Income Tax Act, 1961(in short ‘the Act’) rejecting the application for condonation of delay infiling the return of income for the assessment year 2009-10, resultinginto rejection of his claim for refund of ` 1,29,126/-. Further, a writ ofmandamus has been sought directing respondent No.2 to refund theamount along with interest. 2.Briefly stated, the facts necessary for adjudication of theinstant petition as narrated therein are that the petitioner filed hisincome-tax return for the assessment year 2009-10 on 18.01.2012 (Annexure P-1 Colly) declaring the income of ` 2,30,667/- and claimedrefund of `1,29,126/- on account of tax deducted at source after settingoff the tax liability. Since there was delay in filing the return, anapplication dated 12.6.2013 (Annexure P-5) for condonation of delaywas filed under Section 119(2)(b) of the Act before respondent No.1pleading that there was reasonable cause as he was disturbed by thefamily members and secondly, the TDS certificates were misplaced andwhen found, the return in question was filed. As per Central Board ofDirect Taxes (CBDT) Instruction No.13 of 2006 (Annexure P-3), at thetime of considering an application for condonation of delay in filing aclaim for refund under Section 119(2)(b) of the Act, it is necessary toconsider that the income declared and refund claimed are correct andgenuine and that the case is of a genuine hardship on the merits andcorrectness of the refund claim. Accordingly, the petitioner moved anapplication, Annexure P-4, to respondent No.2 for refund of `1,29,126/-. The aforesaid application for condonation of delay wasrejected by respondent No.1 vide order dated 16.07.2013 (Annexure P- 6) on the following grounds:- i)The return was filed late by 30 months from the duedate i.e. 31.07.2009, without giving any specificreasons. date i.e. 31.07.2009, without giving any specificreasons. ii)His request for condonation of delay being unlawfulwas not maintainable.was not maintainable. iii)TDS was deducted in the name of firm M/s S.M.Communication, 42/10, Model Town, Samalkha andnot in the individual name of the petitioner and thus,he was not entitled to the same.Communication, 42/10, Model Town, Samalkha andnot in the individual name of the petitioner and thus,he was not entitled to the same. iv)No accounts books were being maintained by the petitioner, nor the accounts were got audited. 3.Being aggrieved by the said order, Annexure P-6, thepetitioner made another application, Annexure P-7, for rectification of theaforesaid order. However, respondent No.1 rejected the said applicationvide order dated 29.10.2014 (Annexure P-8). Hence, the present writpetition. ii)His request for condonation of delay being unlawfulwas not maintainable.was not maintainable. iii)TDS was deducted in the name of firm M/s S.M.Communication, 42/10, Model Town, Samalkha andnot in the individual name of the petitioner and thus,he was not entitled to the same.Communication, 42/10, Model Town, Samalkha andnot in the individual name of the petitioner and thus,he was not entitled to the same. iv)No accounts books were being maintained by the petitioner, nor the accounts were got audited. 3.Being aggrieved by the said order, Annexure P-6, thepetitioner made another application, Annexure P-7, for rectification of theaforesaid order. However, respondent No.1 rejected the said applicationvide order dated 29.10.2014 (Annexure P-8). Hence, the present writpetition. 4.Learned counsel for the petitioner submitted that the delayin filing the income-tax return beyond the specified period, was onaccount of “genuine hardship”. During the relevant period, he was adistributor of ‘Cable Master’ for the entire State of Haryana and thus, dueto his field duty his family life remained disturbed. More so, the TDScertificates were also misplaced. Thus, for the above reasons, he couldnot file his return within the stipulated period. According to the learnedcounsel, the refund of the income tax can be allowed, if the claim is filedwithin one year from the last date of the assessment year. However, therespondents have wrongly and illegally rejected the claim of thepetitioner, despite various circulars and instructions issued by the CBDTunder Section 119(2)(b) of the Act which provides that an Income TaxAuthority, by general or special order, not being a Deputy Commissioner(Appeals) or Commissioner (Appeals) may admit an application or claimfor any exemption, deduction, refund or any other relief under the Act,after the expiry of the period specified by or under the Act for makingsuch application or claim and deal with the same on merits inaccordance with law. In support of his arguments, he has placedreliance upon B.M. Malani Vs. Commissioner of Income Tax andanother (2008) 10 SCC 617,Sitaldas K. Motwani Vs. Director CWP No.6223 of 2015-4- General of Income Tax and others (2010) 323 ITR 223 (Bombay), and Artist Tree Private Limited Vs. Central Board of Direct Taxesand others (2014) 369 ITR 691 (Bombay). 5.On the other hand, learned counsel for the respondent hassubmitted that the present writ petition deserves dismissal being devoidof any merit, because, the petitioner could not prove any “genuinehardship” in submitting his income-tax return for the assessment year2009-10 late by 30 months. 6.We have heard learned counsel for the parties. 7.The petitioner has sought condonation of delay in filing his income-tax return late by 30 months on two counts, namely: i)His family life had remained disturbed on account of hisfield duty, being a distributor of ‘Cable Master’ in theState of Haryana; and field duty, being a distributor of ‘Cable Master’ in theState of Haryana; and ii)His TDS certificates had got misplaced. 8.After giving our thoughtful consideration to the abovereasons, we find the same completely devoid of any merit, because, thepetitioner has not been able to refute the stand of the respondent that henever remained distributor of ‘Cable Master’ after 31.03.2009, as per hisown certificate dated 16.04.2008 (Annexure P-2) issued by M/s In-network Entertainment Limited and thus, it is evident that the petitionerhad no field duty after 31.03.2009. Resultantly, the question ofdisturbance of his family life does not arise at all. Accordingly he cannotbe permitted to allege that he could not file his income-tax return in theprescribed time on account of above reason. 9.So far as the second grouse raised by the petitionerregarding misplacement of his TDS certificates is concerned, the same 9.So far as the second grouse raised by the petitionerregarding misplacement of his TDS certificates is concerned, the same has also no legs to stand, because he has not produced copy of any FIRor DDR in support of his above assertion. In the absence of any suchcorroborative evidence, his above plea is not liable to be accepted. 10.Adverting to the judgment in B.M. Malani’s case (supra),relied upon by the learned counsel for the petitioner, it may be noticedthat the Apex Court therein considered the definition of “genuinehardship” and held that it means not fake or counterfeit, real whichshould not be pretending, bogus or merely a ruse. Further, it wasnoticed that ingredients of genuine hardship must be determinedkeeping in view the dictionary meaning thereof and the legal conspectus attending thereto. In Sitaldas K. Motwani’s case (supra), Bombay HighCourt was considering Instruction No.13 of 2006 dated 22.12.2006issued by the CBDT which prescribes that at the time of considering anapplication for condonation of delay in filing a claim for refund underSection 119(2)(b) of the Act, it is necessary for the authorities to considerthat the income declared and refund claimed are correct and genuineand that the case is of “genuine hardship” on the merits and correctnessof the refund claim. It was observed that the Legislature has conferredthe power to condone delay to enable the authorities to do substantivejustice to the parties by disposing of the matters on the merits. Theexpression “genuine” has received a liberal meaning in view of the lawlaid down by the Supreme Court. There is no presumption that delay isoccasioned deliberately, or on account of culpable negligence, or onaccount of mala fides. A litigant did not stand to benefit by resorting todelay. If refund is legitimately due to the applicant, mere delay shouldnot defeat the claim for refund. At this stage, the authority is notexpected to go deep into the niceties of law. While determining whether CWP No.6223 of 2015 a refund claim is correct and genuine, the relevant consideration iswhether on the evidence led, it was possible to arrive at the conclusionin question and not whether that was the only conclusion which could bearrived at on that evidence. Similar view was expressed by Bombay High Court in Artist Tree Private Ltd's case (supra). 11.The proposition of law laid down in these pronouncementsis well recognized but whether there existed genuine hardship orsufficient cause for condonation of delay or not, it depends uponevaluation of totality of facts and circumstances in a given case. Asnoticed above, the petitioner has miserably failed to convince that hehad any “genuine hardship” in filing his income-tax return late by 30months, therefore, no benefit whatsoever of the aforesaid authorities canbe given to him. 12.In view of the above, the writ petition being meritless ishereby dismissed. ( RAMENDRA JAIN ) JUDGE 20.08.2015‘yogesh’/gbs ( AJAY KUMAR MITTAL ) JUDGE