High Court Of Kerala
Vasco Sales & Marketing Corpn. vs. DCIT, Circle – 1
Assessment Years : 1996-97 And 1997-98
Section : 239, 119
B.P. Ray, J.
W.P.(C) No. 24109 Of 2005 (T)
March 1, 2013
JUDGMENT
1. The petitioner firm is an assessee under the Indian Income Tax Act. Exts.P13 and P16 orders of the first and third respondents rejecting the petitioner’s claim for refund of the advance income tax paid for the assessment years 1996-97 and 97-98 is under challenge in this writ petition. This writ petition is filed with the following prayers:
(a)to call for the records leading to Exts.P13 and P16 and quash the same by the issuance of a writ of certiorari or other appropriate writ, order or direction;
(b)to issue a writ of mandamus directing the respondents to order refund as claimed by the petitioner.
2. Learned counsel for the petitioner submits that for the assessment years 1996-97 and 1997-98, the petitioner firm could not file the returns under the Indian Income Tax Act and the returns were filed only after notice under Section 148 of the Act. Even after the notice, the petitioner firm could not file the returns and extension of time was requested. The return for 1996-97 was filed on 30-6-1998 and the total income was only Rs.2520/-. A total amount of Rs.1,26,451/- was paid as advance tax. Therefore the assessing authority dropped the proposal for imposing penalty. Petitioner applied for refund of the tax which was rejected by the Chief Commissioner. Similarly for the assessment year 1997-98 also there was 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 the advance tax was rejected by the Chief Commissioner, petitioner filed this writ petition.
3. Heard both sides and perused the materials available on record.
4. I have gone through the statement filed on behalf of the respondents wherein it is categorically stated that the returns for the assessment years in question were not filed by the petitioner voluntarily but field only in response to notice issued under Section 148 of the Income Tax Act. In as much as the claim of refund having been filed belatedly without any valid reasons, the authorities had to reject the claim as laid down in the Income Tax Act.
5. Learned counsel for the petitioner has relied upon a judgment of this Honourable Court reported in Pala Marketing Co-op. Society Ltd. v. Union of Indian [2008] 167 Taxman 238 (Ker.) wherein it is stated that the failure to condone the delay causes genuine hardship to the assessee. The relevant portion of the judgment reads as follows:
“Chapter XIV is mainly oriented to ensure assessment and recovery of tax to protect the interest of the Revenue. On the other hand, chapter XIV provides for refund and an application in this regard can be entertained only if it is filed within the time limit prescribed under Section 239 of the Act. In other words, if delay is not condoned by the Board under Section 119(2)(b), such application cannot be processed under Section 139(1) or 139(4) of the Act. I am therefore, of the view that in order to consider belated return for refund on merit, delay has to be necessarily condoned by the Board under Section 119(2)(b) of the Act.”
6. Considering the entire facts and circumstances of the case and following the decision cited above, I am of the view that the delay even though due to the fault of the petitioner, should liberally be condoned. Therefore, I condone the delay in filing the application for refund and remit the matter to the third respondent/Chief Commissioner of Income Tax to reconsider the application afresh on merits in accordance with law and pass appropriate orders within three months from the date of receipt of a copy of this judgment.
Writ petition is disposed of.
[Citation : 360 ITR 578]
