Wp(C)/38055/2010 Of C.g.venketeswara Pai v. The Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933 WP(C).No. 38055 of 2010(F) -------------------- PETITIONER : -------------------- C.G.VENKETESWARA PAI, NEW DHANYA LOTTERY AGENCY, PARAMARA ROAD, ERNAKULAM, COCHIN-682 018. BY ADV. SRI.TOMSON T.EMMANUEL RESPONDENT(S): ------------------------- 1. THE COMMISSIONER OF INCOME TAX, IST FLOOR, REVENUE BUILDING, I.S.PRESS ROAD, COCHIN-682 018. 2. THE INCOME TAX OFFICER, WARD 2(1) RANGE 2, REVENUE BUILDING, I.S.PRESS ROAD, COCHIN-682 018. R1 & R2 BY ADV. SRI. JOSE JOSEPH, SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn C.K.ABDUL REHIM, J. ------------------------------------------- W.P.(C).No.38055 of 2010 ------------------------------------------- Dated this the 23[rd] day of March, 2011 ---------------------- Subject matter involved in this writ petition pertainsto filing of Income Tax return by the petitioner, with respect tothe assessment years 2002-03 and 2003-04. Since thereoccurred delay in filing the returns due to delay caused ingetting the required TDS certificates, the petitioner hadapproached the 1[st] respondent under Section 119(2)(b) of theIncome Tax Act, seeking condonation of delay. According to thepetitioner, he had in fact submitted the returns earlier, in theoffice of the 2[nd] respondent as evidenced from Ext.P2 and P3,along with the TDS certificates. It is the case of the petitionerthat the staff in the office of the 2[nd] respondent has not acceptedthose returns since they were filed beyond time. It is statedthat, the returns in question were refused only after affixing'office seal' of the 2[nd] respondent, which was thereafter scoredoff. In Ext.P2, copy of the return, it is evident that the 'officeseal' was seen affixed and scored off. It is also pointed out thatthe “acknowledgment receipt number” was also affixed at thebottom of Ext.P2 and subsequently scored off. Under suchcircumstances, aggrieved by the non-acceptance of the returnsthe petitioner had approached this court on an earlier occasion. In Ext.P5 judgment this court observed that, even assuming thatExt.P2 and P3 returns were filed on an earlier date ascontended, there is delay in filing the returns. Therefore the 1[st]respondent was directed to consider and dispose of theapplications filed under Section 119(2)(b). 2.Ext.P7 is the order issued by the 1[st] respondent afterconsidering the application filed under Section 119(2)(b). InExt.P7 the 1[st] respondent observed that, he has power tocondone the delay in filing returns only upto a period of six yearscomputed from the end of the assessment year concerned, andsince the returns were filed beyond that period, the delay couldnot be condoned. 3.In Ext.P7 it was observed that, the affixure of the sealand receipt number in acknowledgment of receipt of the returnfor the year 2002-03, could not be reckoned since thoseendorsements were seen struck off. It was further observed thatthere was no acknowledgment of the return by putting signatureof the official who was in charge of receiving the returns.However it was observed that, there was no such seal affixedwith respect to the return filed for the year 2003-04 (Ext.P3).The 1[st] respondent relied on a report of the assessing officer tothe effect that the return for the assessment years were not seenfiled in the office. The 1[st] respondent observed that the power to 3.In Ext.P7 it was observed that, the affixure of the sealand receipt number in acknowledgment of receipt of the returnfor the year 2002-03, could not be reckoned since thoseendorsements were seen struck off. It was further observed thatthere was no acknowledgment of the return by putting signatureof the official who was in charge of receiving the returns.However it was observed that, there was no such seal affixedwith respect to the return filed for the year 2003-04 (Ext.P3).The 1[st] respondent relied on a report of the assessing officer tothe effect that the return for the assessment years were not seenfiled in the office. The 1[st] respondent observed that the power to condone delay under Section 119(2)(b) is vested with the CentralBoard of Direct Taxes (CBDT) and it is only by virtue of CircularNo.13/2006 dt.22.12.2006, the power is delegated to the 1[st]respondent. Referring to paragraph No.4 of the said circular itwas stated that the power delegated to the 1[st] respondent islimited only for condonation of delay upto a period of 6 yearsfrom the end of the assessment year. 4.It is submitted by learned counsel for the petitionerthat, inspite of Ext.P7 order, the delay with respect to the year2003-04 was subsequently condoned, since it was found that theapplication was within a period of six years. Accordingly thereturn filed for the said year was accepted and the same is underprocess. Hence the petitioner is limiting his grievance againstExt.P7, only to the extent of the rejection to condone delay withrespect to the assessment year 2002-03. 5.Heard, standing counsel appearing for therespondents. It is specifically pointed out that as per the circularissued by the CBDT, the power for condonation of delay isdelegated to the 1[st] respondent with a limitation prescribed tothe extent of condonding delay upto 6 years from the end of ofthe assessment year. Hence the 1[st] respondent is perfectlyjustified in not condoning the delay with respect to the year2002-03, since the same is beyond the extent of his powers. On the other hand, learned counsel for petitioner points out variousdecisions to the effect that the circulars issued by the authoritiesare not binding on the court. Considering the factual aspectinvolved it is only just and proper in the interest of justice tocondone the delay in filing the return, is the contention. 6.It is evident that the 1[st] respondent has not gone intomerits of the reasons explained for causing the delay in filing thereturn. But the application was rejected only on the basis thathe is lacking power to condone the delay beyond the period of 6years. I take note of the fact that, Ext.P2 contains affixure of the'office seal' as well as 'receipt number'. However, it is evidentthat those endorsements were scored off. Even though it couldnot be said that the return in question was accepted at the officeof the 2[nd] respondent, the above said endorsements will revealthat there was an attempt made by the petitioner to submit thereturn on an earlier occasion. According to me, the above saidfact is a matter which need be considered while deciding theissue regarding condonation of delay. Of course, as observed inExt.P5 Judgment, even computed on that basis, there is delay infiling the return. However, there was no evaluation done withrespect to the above said aspects since the 1[st] respondent waslacking powers. It is the CBDT which is the competent authorityto look into these matters and to take an appropriate decision, bearing in mind all the above said aspects. Under suchcircumstances I am of the view that interest of justice will beserved if the petitioner is relegated to the CBDT to seekappropriate relief. bearing in mind all the above said aspects. Under suchcircumstances I am of the view that interest of justice will beserved if the petitioner is relegated to the CBDT to seekappropriate relief. 7.Therefore the writ petition is disposed of directing thepetitioner to approach the CBDT seeking condonation of delay infiling return, with respect to the assessment year 2002-03. Ifany such petition is filed within a period of two weeks from thedate of receipt of a copy of such application, the same shall beconsidered by the CBDT on merits and an appropriate decisionshall be taken thereof, after affording a reasonable opportunityof hearing, at the earliest possible, at any rate, within 3 monthsfrom the date of receipt of such application. 8.Learned counsel for the petitioner makes a furtherrequest to direct the 2[nd] respondent to dispose of the return filedwith respect to the period 2003-04, within a time frame.Needless to say that the said authority will take appropriatesteps for disposal of the matter at the earliest possible. C.K.ABDUL REHIM, JUDGE.