Wp(C)/10405/2016 Of T.v.krishnan v. Pr. Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 11 DAY OF AUGUST 2023 / 20TH SRAVANA, 1945WP(C) NO. 10405 OF 2016 PETITIONER: T.V.KRISHNANAGED 65 YEARS, 'SHYAM NIVAS', ATTENGANAM, ODAYAMCHAL, KASARGODE.BY ADVS.SRI.P.S.SREEDHARAN PILLAISRI.ARJUN SREEDHARSRI.ARUN KRISHNA DHANSRI.T.K.SANDEEP RESPONDENTS: 1THE PRINCIPAL COMMISSIONER OF INCOME TAX,AAYANKAR BHAVAN, NORTH BLOCK, KOZHIKODE-673001.AAYANKAR BHAVAN, NORTH BLOCK, KOZHIKODE-673001. 2CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001, REPRESENTED BY ITS CHAIRMAN. BY ADV.SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10405 OF 2016 -2- JUDGMENT 1.The order Ext.P8 of the PrincipalCommissioner of Income Tax, Kozhikode passed underthe provisions of Section 119(2)(b) of the Income TaxAct, 1961 condoning the delay for claiming tax refund ofRs.1,85,450/- (Rupees One lakh eighty five thousand fourhundred and fifty only) i.e., the TDS deducted by theSpecial Tahsildar, Kasargode on account of theacquisition of agriculture land, is under challenge onbehalf of the petitioner. 2.Petitioner, as per the averments, was not aregular assessee since his annual income was solelyfrom agricultural activities and less than the taxablethreshold. In the year 1988 the land was compulsorilyacquired and the total enhanced compensationassessed was Rs.17,74,333/- (Rupees Seventeen lakhseventy four thousand three hundred and thirty threeonly) along with interest from 1999 to 2007 amounting toRs.18,26,591/- (Rupees Eighteen lakh twenty six WP(C) NO. 10405 OF 2016 -3- thousand five hundred and ninety one only). 50% of thepayment was made on 05.07.2007 and an amount ofRs.1,85,448/- (Rupees One lakh eighty five thousand fourhundred and forty eight only) was withheld towards thetax deduction. Petitioner received Ext.P2 (Form 16A)for the asssessment year 2007-2008 on 15.09.2014. It ison that background the return was filed on 04.11.2014with a time limit of six years from the end of theassessment year as per Ext.P7 circular of the Board.Ext.P6 application for condonation in filing returnshowing sufficient cause and genuine hardships sufferedby the petitioner was dismissed by the impugned order. 3.Learned counsel appearing on behalf of thepetitioner submitted that the order Ext.P8 is based uponthe previous circular of 2016 whereas the circular Ext.P7dated 09.06.2015 envisaged the situation in which thepetitioner had fallen, has not been considered.Therefore the order is illegal, aribitrary and liable to beset aside. 4.On the other hand, learned counsel for the WP(C) NO. 10405 OF 2016 -4- Income Tax submitted that the order is perfectly legaland justified. There was a misrepresentation in claimingcondonation of delay by asserting the certificate of TDSwas issued on 15.09.2014, but in fact it was issued on18.07.2013. Therefore the return was beyond six yearsand urged this Court for dismissal of the writ petition. 5.I have heard learned counsel for the partiesand appraised the paper book. 6.It would be expedient to extract the operativeportion of the order Ext.P7. The same reads as follows: 4.On the other hand, learned counsel for the WP(C) NO. 10405 OF 2016 -4- Income Tax submitted that the order is perfectly legaland justified. There was a misrepresentation in claimingcondonation of delay by asserting the certificate of TDSwas issued on 15.09.2014, but in fact it was issued on18.07.2013. Therefore the return was beyond six yearsand urged this Court for dismissal of the writ petition. 5.I have heard learned counsel for the partiesand appraised the paper book. 6.It would be expedient to extract the operativeportion of the order Ext.P7. The same reads as follows: “2.On perusal of the records it isnoticed that the assessee Shri T V Krishnan,Shyam Nivas, Attenganam, Odayamchal,Kasaragod (PAN: ) filed the returnof income for the A.Y. 2008-09 on 04.11.2014,having a delay of 76 months from the due date,with an income of Rs. 59790/- and claiming arefund of Rs. 1,85,450/-. The petition forcondonation was filed before the ChiefCommissioner of income Tax, Kochi on06.05.2015. The Chief Commissioner of IncomeTaxvideorderinF.No.Pr.CC-CHN/Tech/Cond/02/2015-16 dated 17-09-2015 had transferred the application to thisoffice. 3. The assessee’s claim of refund hadarisen from the TDS deducted by specialTahsildar, Kasaragod on acquisition ofagriculture land. In the condonation petition,the assessee stated that he had received theTDS certificate from Tahsildar, kasaragod on15.09.2014, but it is evident from the recordsthat the certificate was issued on 18.07.2013,thereby rendering a false claim. It is furthernoticed from records that the application forcondonation was submitted on 06.05.2015 bywhich there was delay beyond six years fromthe end of the Asst. year 2008-09, and as suchthe petition for this reason also cannot be actedupon, as per the Board’s CircularNo.212/338/2002-ITA-II dated 30.10.2003.Further no justifiable reason or evidence hasbeen produced for the delay in filing the returnof Income. 4. I have considered the petition carefullyand it is felt that the assessee does not have anygenuine financial hardship. In the light ofBoard’s Circular No.212/338/2002-ITA-II dated30.10.2003 and instruction No.13/06 dated22.12.2006 issued in F No.312/47/2005-OT, thiscase does not fall under the purview to condonethe delay and hence the condonation petitionfiled is hereby rejected.” WP(C) NO. 10405 OF 2016 -6- doubt the authorities noticed that the TDS certificateissued by the Tahsildar was on 15.09.2014 and not on18.07.2013. It is not the case that the petitioner hadbeen regular income tax payee as his income was lessthan the taxable income. However for the assesssmentyear 2008-2009 the income was assessible to the incometax on account of the acquisition of land, as noticedabove, therefore filed the return in 2014 for theassessment period 2008-2009 till the refund ofRs.1,85,450/- (Rupees One lakh eighty five thousand fourhundred and fifty only) on the basis of the TDScertificate. The application was declined as per thecircular of 2003, which, in my view, is not permissibleand sustainable, for, as per clause 4 of the circularExt.P7 dated 9.6.2015, while calculating the period of sixyears in the refund claim arriving out of the order of theCourt, the period for which any such proceedings werepending before the court shall be ignored. Clause 4 ofthe circular reads as under: “4. In a case where refund claim has arisen consequent to a Court order, the period forwhich any such proceedings were pendingbefore any Court of Law shall be ignored whilecalculating the said period of six years, providedsuch condonation application is filed within sixmonths from the end of the month in which theCourt order was issued or the end of financialyear whichever is later.” “4. In a case where refund claim has arisen consequent to a Court order, the period forwhich any such proceedings were pendingbefore any Court of Law shall be ignored whilecalculating the said period of six years, providedsuch condonation application is filed within sixmonths from the end of the month in which theCourt order was issued or the end of financialyear whichever is later.” 9.Certificate is dated 18.07.2013. Therefore theperiod of six years would have been applicable from suchdate and could not relate back to assessment year 2008-2009 whereby the period for filing the return hadallegedly expired on 31.07.2008 . Thus the order Ext.P8is wholly unsustainable and arbitrary and hereby setaside. Writ petition is allowed. Delay in filing the returnand claiming refund is condoned. Respondents aredirected to make the payment of refund in the account ofthe petitioner within a period of one month from the dateof receipt of a certified copy of the judgment. vv Sd/-AMIT RAWALJUDGE APPENDIX OF WP(C) 10405/2016 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE STATEMENT OF ACCOUNT FILE NO.A497/01 IN LAR NO.36/01, SUB COURT, HOSDURG ISSUED BYSPECIAL TAHSILDAR (LA) DATED 22.6.2007.ACCOUNT FILE NO.A497/01 IN LAR NO.36/01, SUB COURT, HOSDURG ISSUED BYSPECIAL TAHSILDAR (LA) DATED 22.6.2007. EXHIBTI P2 A TRUE COPY OF THE FORM 16A ISSUED BY TAHSILDAR CERTIFYING DEDUCTION OF RS.1,85,448/-.TAHSILDAR CERTIFYING DEDUCTION OF RS.1,85,448/-. EXHIBIT P3 A TRUE COPY OF THE INCOME TAX RETURN FILED ON 4.11.2014.FILED ON 4.11.2014. EXHIBIT P4 A TRUE COPY OF THE STATEMENT OF COMPUTATION OF TOTAL INCOME AND TAX FILED ALONG WITH THE RETURN.COMPUTATION OF TOTAL INCOME AND TAX FILED ALONG WITH THE RETURN. EXHIBIT P5 A TRUE COPY OF THE COVERING LETTER AS ACKNOWLEDGED BY INCOME TAX OFFICER CONTAINING ENDORSEMENT OF RECEIPT OF RETURN FILED ON 13.11.2014.ACKNOWLEDGED BY INCOME TAX OFFICER CONTAINING ENDORSEMENT OF RECEIPT OF RETURN FILED ON 13.11.2014. EXHIBIT P6 A TRUE COPY OF THE PETITION UNDER SECTION 119(2)(B) OF INCOME TAX ACT FILED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING THE RETURN.SECTION 119(2)(B) OF INCOME TAX ACT FILED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING THE RETURN. EXHIBIT P7 A TRUE COPY OF THE CIRCULAR NO.9/2015 ISSUED BY THE 2ND RESPONDENT.ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE ORDER C.NO.HQ/119(2)(B)/CIT/2015-16 DATED 22.1.2016.