Vasco Sales And Marketing Corporation, Rep. By Its Managing v. Hameed, 20/272-D Kallai Heights, Kallai, Kochikode

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE B.P.RAY FRIDAY, THE 1ST DAY OF MARCH 2013/10TH PHALGUNA 1934 WP(C).No. 24109 of 2005 (T) ---------------------------- PETITIONER(S) : --------------------- VASCO SALES AND MARKETING CORPORATION, REP. BY ITS MANAGING PARTNER, V. HAMEED, 20/272-D KALLAI HEIGHTS, KALLAI, KOCHIKODE. BY ADV. SRI.K.P.BALASUBRAMANYAN RESPONDENT(S) : ----------------------- 1. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, DIVISION-1, CALICUT. 2. THE COMMISSIONER OF INCOME TAX, CALICUT. 3. THE CHIEF COMMISSIONER OF INCOME TAX, COCHIN. R1 TO 3 BY ADVS. SRI.P.K.R.MENON,SR.COUNSEL,GOI(TAXES) SRI.GEORGE K. GEORGE, SC FOR IT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: BP WP(C).No. 24109 of 2005 (T) APPENDIX PETITIONER'S EXHIBITS : P1:COPY OF NOTICE DT 23/8/97 ISSUED TO THE PETITIONER, BY ASST. P2:COPY OF LETTER SENT BY PETITIONER TO THE ASST.COMMISSIONR OF INCOME TAX DATED 28/8/1997.INCOME TAX DATED 28/8/1997. P3:COPY OF NOTICE DT 16/9/1997 ISSUED BY ASST.COMMISSIONR OF INCOME TAX CIRCLE I, TO THE PETITIONER.CIRCLE I, TO THE PETITIONER. P4:COPY OF EXPLANATION DT 21/10/97 SENT BY PETITIONER TO ASST. COMMISSIONR OF INCOME TAX CIRCLE - I, CALICUT.COMMISSIONR OF INCOME TAX CIRCLE - I, CALICUT. P5:COPY OF NOTICE DT 21/5/98 ISSUED TO PETITIONER BY ASST.COMMISSIONER OF INCOME TAX, CIRCLE -1.OF INCOME TAX, CIRCLE -1. P6:COPY OF LETTER DT 22/6/98 ISSUED BY -DO- TO PETITIONER. P7:COPY OF RETURN FOR THE ASSESSMENT YEAR 1996-97 ON 30/6/98 AND A LETTER DT 30/6/98 TO -DO-.LETTER DT 30/6/98 TO -DO-. P8:COPY OF LETER DT 6/4/2001 SENT BY PETITIONER TO R1. P9:COPY OF NOTICE DT 25/6/2001 ISSUED BY R1 TO THE PETITIONER P10:COPY OF REPLY DTD 29/6/2001 SENT BY PETITIONER TO 1ST RESPONDENT. P11:COPY OF NOTICE DT 25/6/2001 SENT BY R1 TO THE PETITIONER. P12:COPY OF REPLY DT 29/6/2001 SENT BY PETITIONER TO TH R1. P13:COPY OF THE PROCEEDINGS NO.V-355/DC-I/CLT/2001-02 DT 17/4/2001. P14:COPY OF THE PETITIONS FILED BY THE PETITIONER FOR REFUND FOR THE YEAR 1996-97.YEAR 1996-97. P15:-DO-FOR THE YEAR 1997-97 P16:COPY OF ORDER OF THE RESPONDENT DT 3/3/2005. P17:COPY OF THE CORRIGENDUM DT 25/4/2005. RESPONDENT'S EXHIBITS :NIL. //TRUE COPY// BP P.A. TO JUDGE B.P.RAY, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.24109 OF 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1[st] day of March, 2013 JUDGMENT The petitioner firm is an assessee under the Indian Income Tax Act.Exts.P13 and P16 orders of the first and third respondents rejecting thepetitioner’s claim for refund of the advance income tax paid for theassessment years 1996-97 and 97-98 is under challenge in this writpetition. This writ petition is filed with the following prayers: a) to call for the records leading to Exts.P13 and P16 andquash the same by the issuance of a writ of certiorari or otherappropriate writ, order or direction; b) to issue a writ of mandamus directing the respondents toorder refund as claimed by the petitioner. 2. Learned counsel for the petitioner submits that for the assessmentyears 1996-97 and 1997-98, the petitioner firm could not file the returnsunder the Indian Income Tax Act and the returns were filed only afternotice under Section 148 of the Act. Even after the notice, the petitionerfirm could not file the returns and extension of time was requested. Thereturn for 1996-97 was filed on 30-6-1998 and the total income was onlyRs.2520/-. A total amount of Rs.1,26,451/- was paid as advance tax.Therefore the assessing authority dropped the proposal for imposing W.P.(C)No.24109 OF 2005 :: Page numbers :: b) to issue a writ of mandamus directing the respondents toorder refund as claimed by the petitioner. 2. Learned counsel for the petitioner submits that for the assessmentyears 1996-97 and 1997-98, the petitioner firm could not file the returnsunder the Indian Income Tax Act and the returns were filed only afternotice under Section 148 of the Act. Even after the notice, the petitionerfirm could not file the returns and extension of time was requested. Thereturn for 1996-97 was filed on 30-6-1998 and the total income was onlyRs.2520/-. A total amount of Rs.1,26,451/- was paid as advance tax.Therefore the assessing authority dropped the proposal for imposing W.P.(C)No.24109 OF 2005 :: Page numbers :: penalty. Petitioner applied for refund of the tax which was rejected by theChief Commissioner. Similarly for the assessment year 1997-98 also therewas delay in filing the return. The return was ultimately filed on 29-2-2000 declaring a loss of Rs.3,98,599/-. Since the request for refund of theadvance tax was rejected by the Chief Commissioner, petitioner filed thiswrit petition. 3. Heard both sides and perused the materials available on record. 4. I have gone through the statement filed on behalf of therespondents wherein it is categorically stated that the returns for theassessment years in question were not filed by the petitioner voluntarily butfild only in response to notice issued under Section 148 of the Income TaxAct. In as much as the claim of refund having been filed belatedly withoutany valid reasons, the authorities had to reject the claim as laid down in theIncome Tax Act. 5. Learned counsel for the petitioner has relied upon a judgment ofthis Honourable Court reported in 2008 (1) KLJ 561 (Pala Marketing-Coop. Society Ltd. v. Union of Indian and Ors.)wherein it is stated thatthe failure to condone the delay causes genuine hardship to the assessee.The relevant portion of the judgment reads as follows: :: Page numbers :: “Chapter XIV is mainly oriented to ensure assessment andrecovery of tax to protect the interest of the Revenue. On theother hand, chapter XIV provides for refund and anapplication in this regard can be entertained only if it is filedwithin the time limit prescribed under Section 239 of the Act.In other words, if delay is not condoned by the Board underSection 119(2)(b), such application cannot be processed underSection 139(1) or 139(4) of the Act. I am therefore, of the viewthat in order to consider belated return for refund on merit,delay has to be necessarily condoned by the Board underSection 119(2)(b) of the Act.” 6. Considering the entire facts and circumstances of the case andfollowing the decision cited above, I am of the view that the delay eventhough due to the fault of the petitioner, should liberally be condoned.Therefore, I condone the delay in filing the application for refund and remitthe matter to the third respondent/Chief Commissioner of Income Tax toreconsider the application afresh on merits in accordance with law and passappropriate orders within three months from the date of receipt of a copy ofthis judgment. Writ petition is disposed of. jes B.P.RAY, JUDGE