Wp(C)/24492/2016 Of Shri.ayyappan Sundaran v. The Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938 WP(C).No. 24492 of 2016 (J) ---------------------------- PETITIONER : ------------------- SHRI.AYYAPPAN SUNDARAN S/O. LAE K.A.AYYAPPAN, AGED 67 YEARS, KIZHAKKE VEEDU, P.O. THOLANUR, PALAKKAD. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SMT.VANDANA MENON SMT.DIVYA RAVINDRAN SRI.ABRAHAM VARGHESE THARAKAN SRI.V.V.VARGHESE RESPONDENTS : ------------------------ 1. THE CHIEF COMMISSIONER OF INCOME TAX KOCHI, C.R.BUILDING, I.S.PRESS ROAD, KOCHI-682018.KOCHI-682018. 2. THE PRINCIPAL COMMISSIONER OF INCOME TAX AAYAKAR BHAVAN, SHAKTAN NAGAR, THRISSUR-680 001.AAYAKAR BHAVAN, SHAKTAN NAGAR, THRISSUR-680 001. 3. THE INCOME TAX OFFICER WARD-4, PALAKKAD - 678 001. R BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24492 of 2016 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS -------------------------------------- EXHIBIT P1: TRUE COPY OF THE COMPUTATION OF INCOME FOR THE ASSESSMENTYEAR 1997-1998. EXHIBTI P2: TRUE COPY OF THE REPRESENTATION DATED 5.5.2003 SUBMITTED BYTHE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P3: TRUE COPY OF THE REPRESENTATION DATED 12.1.2011 SUBMITTED BYTHE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE REPRESENTATION DATED 29.7.2015 SUBMITTED BYTHE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 29.2.2016 ISSUED BY THE 2NDRESPONDENT FOR THE ASSESSMENT YEAR 1997-98. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 29.2.2016 ISSUED BY THE 2NDRESPONDENT FOR THE ASSESSMENT YEAR 2000-01. RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------- /TRUE COPY/ P.A TO JUDGE AV A.M.SHAFFIQUE, J. ------------------------------------ W.P.(C).No.24492 of 2016----------------------------------- Dated this the 3[rd] day of November, 2016 J U D G M E N T The petitioner challenges Exts.P5 & P6 by which applicationsunder Section 119(2)(b) of the Income Tax Act 1961 have beenrejected by the Principal Commissioner of Income Tax. 2. The applications came to be filed to condone delay in filingreturns for the assessment years 1997-98 and 2000-01. Accordingto the petitioner, the delay occurred since he was working in variousshipping companies at offshore and in land. He has filed his returnsup to the assessment year 2002-03. Out of this, returns of incomefor the assessment year 1997-98 and 2000-01 were time barred forwhich he had filed applications to condone delay before theCommissioner of Income Tax. The matter was kept pending forquite a long time and ultimately, the petitioner submitted Ext.P4dated 29.07.2015 requesting the matter to be taken up for hearing.The Commissioner having heard the matter observed that the claimcannot be entertained as the assessee's claim for delay was due tonon-receipt of Form 16 from the employer which is not substantiatedand cannot be accepted on its face value without corroborativeevidence. Hence, the delay was not condoned. 3. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 4. The main contention urged by the petitioner is that theCommissioner had taken a hyper technical view in the matter. Thequestion to be considered is whether any genuine hardship wouldbe caused to the petitioner, if the delay is not condoned. Section119(2)(b) of the Income Tax Act 1961 reads as under : 3. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. 4. The main contention urged by the petitioner is that theCommissioner had taken a hyper technical view in the matter. Thequestion to be considered is whether any genuine hardship wouldbe caused to the petitioner, if the delay is not condoned. Section119(2)(b) of the Income Tax Act 1961 reads as under : “ the Board may, if it considers it desirable or expedient so todo for avoiding genuine hardship in any case or class ofcases, by general or special order, authorise any income-taxauthority, not being a Commissioner (Appeals) to admit anapplication or claim for any exemption, deduction, refund orany other relief under this Act after the expiry of the periodspecified by or under this Act for making such application orclaim and deal with the same on merits in accordance withlaw.” 5. There cannot be any dispute about the statutory provisionas the Commissioner is enjoined with the power to condone delay, ifgenuine hardship is caused to the assessee. In the applications tocondone delay the petitioner had clearly stated about his difficultiesin filing the return especially as he was a seaman and was travellingall throughout and therefore, he could file the return en bloc forwhich there was some delay. Being an individual he has his ownlimitations in the matter. The Commissioner of course hadproceeded on the basis that the reasons stated for the delay is notsustainable. 6. In fact, while considering an assessee's claim for condoningthe delay, the Commissioner ought to take a more pragmatic approach, especially when an employee has filed his return. He doesnot have the necessary infrastructure to file the returns in timewhich also is a matter to be considered. If the assessee is entitledfor any refund on account of the assessment being completed, thereis no reason why the Government of India should retain suchamount from the assessee. Under such circumstances, I am of theview that if the delay is not condoned it would definitely causegenuine hardship to the petitioner. This writ petition is therefore allowed as under : 1. Exts.P5 and P6 are set aside. 2. The delay in filing the returns are condoned. 3. The assessing officer shall take into consideration thereturns filed by the petitioner and complete theassessment within a period of three months from thedate of receipt of a copy of this judgment.returns filed by the petitioner and complete theassessment within a period of three months from thedate of receipt of a copy of this judgment. Sd/- A.M.SHAFFIQUE, JUDGE.