Wp(C)/27644/2010 Of Lucy John v. The Income Tax Officer,Ward-2, Aluva

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR TUESDAY, THE 14TH DAY OF OCTOBER 2014/22ND ASWINA, 1936 WP(C).No. 27644 of 2010 (E) ---------------------------- PETITIONER(S): -------------------------- MRS.LUCY JOHN, THATTALA HOUSE, II CONVENT ROAD, 2/80, IFL THOTTAKKATTUKARA P.O., ALUVA - 683 108 (KERALA). BY ADVS.SRI.KMV.PANDALAI SMT.S.HEMALATHA RESPONDENT(S): ---------------------------- 1. THE INCOME-TAX OFFICER, WARD-2, ALUVA. 2. THE COMMISSIONER OF INCOME-TAX-II, C.R.BUILDINGS, KOCHI - 682 018. 3. THE CHIEF COMMISSIONER OF INCOME-TAX-II, COCHIN, C.R.BUILDINGS, KOCHI - 682 018. BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27644 of 2010 (E) APPENDIX PETITIONER'S EXHIBITS EXT.P1:COPY OF ACKNOWLEDGEMENT FOR A.Y 2007-08. EXT.P2:COPY OF ACKNOWLEDGEMENT FOR A.Y 2008-09. EXT.P3:COPY OF PETITION DATED 10.10.2009 FILED BY THE PETITIONER.EXT.P4:COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT ON 30.06.2010.EXT.P4:COPY OF THE ORDER PASSED BY THE 2ND RESPONDENT ON 30.06.2010. EXT.P5:COPY OF BOARD'S ORDER DATED 12.10.93 & 26.10.93 AS REPORTED IN 204 ITR 154 & 155.IN 204 ITR 154 & 155. EXT.P6:COPY OF PETITION DATED 30.07.2010 FILED BEFORE THE 3RD FOR ASSESSMENT YEAR 2007-08.ASSESSMENT YEAR 2007-08. EXT.P6(a):COPY OF PETITION DATED 30.07.2010 FILED BEFORE THE 3RD FOR ASSESSMENT YEAR 2008-09.ASSESSMENT YEAR 2008-09. EXT.P7:COPY OF THE COMMUNICATION DATED 04.08.2010 RECEIVED FROM THE 3RD RESPONDENT.THE 3RD RESPONDENT. EXT.P7(a):COPY OF BOARD'S INSTRUCTION NO.13/200 DATED 22.12.2006 PROVIDED BY THE 3RD RESPONDENT.PROVIDED BY THE 3RD RESPONDENT. RESPONDENTS EXHIBITS:NIL /TRUE COPY/ P.A TO JUDGE LSN A.K.JAYASANKARAN NAMBIAR, J. ------------------------------------ W.P.(C).No.27644 of 2010 --------------------------------------------------- Dated this the 14[th] day of October 2014 J U D G M E N T The petitioner is aggrieved by Ext.P4 order of the secondrespondent, whereby his petition for condonation of delay, infiling the refund application for refund of excess tax paid forthe assessment years 2007-08 and 2008-09, was rejected. Itwould appear that, in respect of the assessment years 2007-08and 2008-09, the petitioner filed returns on 05.08.2009,declaring the total income of the petitioner for the previousyears and also claiming refund in respect of excess taxdeducted from the commission that was paid to her by the LifeInsurance Corporation, of which she was an agent. In Ext.P4order, the prayer of the petitioner for condonation of thedelay in filing the refund application is seen rejected byrelying on the medical certificate produced by the petitionerthat showed that she had met with an accident in 2006 andwas advised rest for a week at that point of time. It is the caseof the petitioner that, as a matter of fact, she was not in aposition to work for a considerable period of time after thedate of the accident, although the medical certificate, thatshe was asked to produce before the second respondent, indicated only that she was required to take rest for one week.It is pointed out that although in Ext.P4 order, the delay inrespect of refund claim filed for the assessment year 2008-2009 is also not condoned, subsequently the secondrespondent granted the refund in respect of that assessmentyear, on finding that there was actually no delay that requiredto be condoned in respect of the refund claimed for that year.It is submitted that this sanctioning of refund for theassessment year 2008-2009, was not reflected in Ext.P4 orderbut, the petitioner was given the benefit of the refund insubsequent assessments. The challenge in the writ petitionagainst Ext.P4 order is therefore confined to the assessmentyear 2007-08. 2.I have heard Sri K.M.V.Pandalai, learned counselappearing for the petitioner and also Sri.Jose Joseph, learnedStanding counsel appearing for Income Tax Department. 3.Considering the facts and circumstances of thecase and the submissions made across the Bar, I find that inExt.P4 order, the second respondent relies only on the medicalcertificate produced by the petitioner to find that her claim,that it was on account of the accident in August 2006, that shewas disabled from filing the return for the assessment years under consideration, could not be believed. Thereafter, thesecond respondent proceeded to reject the petition forcondonation of delay in filing the returns in respect of boththe assessment years. On going through the provisions ofSection 239 of the Income Tax Act r/w Sec.119 and Ext.P7board circular issued by the Central Board of Direct Taxes, itis clear that the non condonation of the delay for theassessment year 2008-09, in Ext.P4 order, was clearly illegalsince, going by the provisions referred above, as also theboard circular, it was evident that the refund claim of thepetitioner for the assessment year 2008-09 was filed withintime and, therefore, had to be considered on merits.Although, the petitioner subsequently got the benefit of therefund in respect of the assessment year 2008-09, the factremains that the non-consideration of this aspect in Ext.P4indicates a non-application of mind by the second respondentwhile passing Ext.P4 order. The petitioner would, therefore,be justified in her contention that the second respondent didnot apply his mind to the issue of condonation of delay inrespect of the refund claim preferred for the assessment year2007-08 also, in the light of the aforementioned provisions andboard circular and also the fact that there was only a delay of 126 days from the end of the period specified in Sec.239(2)(c)of the Income Tax Act. Under these circumstances, I am of theview that the second respondent should consider the refundapplication preferred by the petitioner, through the returnfiled on 05.08.2009, for the assessment year 2007-08 afreshafter considering the material that the petitioner has toproduce, to explain the delay in preferring the refund claim.The second respondent shall consider and pass fresh orderson the aforesaid refund application of the petitioner within aperiod of two months from the date of receipt of a copy of thisjudgement, after affording the petitioner an opportunity ofbeing heard. The writ petition is allowed as above. A.K.JAYASANKARAN NAMBIARJUDGE lsn