HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Writ Petition No.8858/2019 Colonel Ashwani Kumar Ram Singh (Retd.) v/s Principal Commissioner of Income Tax Indore, dated 29.08.2019 Shri Ram Gilda, learned counsel for petitioner. Ms. Veena Mandlik, learned counsel for respondent. petitioner before this Court, retired Colonel of Indian Army, has filed this present petition being aggrieved by order dated 31.03.2019 passed by Principal Commissioner, Income Tax, Indore rejecting his claim for refund of TDS on exempted disability pension along with interest. petitioner's contention is that he suffered war disability, and finally, order was passed by Armed Forces Tribunal, Principal Bench, New Delhi on 03.08.2017 holding that petitioner is entitled for disability pension. Director General, Personal Service, Ministry of Defence has finally passed order on 17.11.2017 granting disability pension to petitioner w.e.f. 01.01.2006 and aforesaid facts are not disputed. petitioner submitted application for refund of tax keeping in view order passed by Armed Forces Tribunal, Principal Bench, New Delhi dated 03.08.2017 and subsequent order passed by Ministry of Defence holding him entitled for disability pension w.e.f. 01.01.2006 with prayer to refund tax, which was deducted by way of TDS for year w.e.f. 2007 08 to 2015 2016, i.e. for nine years. petitioner's application was processed by Chief Commissioner, Income Tax and same was Writ Petition No.8858/2019 2 partially allowed, allowing refund for assessment year 2012 13 to 2015 16. However, in respect of assessment year 2007 08 to 2011 12, application has been rejected on ground that Chief Commissioner does not have power to condone delay beyond six year, meaning thereby, refund has been allowed in respect of assessment year 2012 13 and 2015 16 without interest. petitioner again submitted application on 08.04.2019 to respondent / Income Tax Department to condone delay for assessment year 2007 08 to 2011 12 and to grant interest at rate of 12% on refund for all years right from assessment year 2007 08 to 2015 16, however, same has not been done and he has approached this Court. reply has been filed by respondent / Income Tax Department and refund ordered in matter has been admitted by department, however, it has been stated that in light of statutory provision as contained under Section 119 (2)(b) of Income Tax Act, 1961, delay cannot be condoned by Chief Commissioner of Income Tax and same has to be condoned by Central Board of Direct Taxes. Learned counsel for respondent has stated before this Court that interest has not been paid in light of CBDT Circular No.9/2015 dated 09.06.2015, as it is belated claim made by assessee. She has placed heavy reliance upon paras 3 and 6 of said circular. Heard learned counsel for parties at length and perused record. matter is being disposed of at Writ Petition No.8858/2019 3 motion hearing stage itself with consent of parties. In present case, undisputed facts reveal that petitioner, who is decorated officer of Indian Army, after fighting with enemy through out his career, was forced to fight with his parent organization in matter of grant of disability pension. Even he fought battle with Union of India / Ministry of defence as he was being deprived of disability pension in spite of fact that he suffered disability while on active duty, and finally, Armed Forces Tribunal, Principal Bench, while passing order in O.A. No.1134/2016, has allowed original application and has held that petitioner shall be entitled for disability pension. Thereafter, Ministry of Defence, through Director General Personal Services, has finally passed order implementing order passed by Armed Forces Tribunal holding that petitioner is entitled for disability pension w.e.f. 01.01.2006. petitioner, event though, he succeeded in battle with his own parent organization / Ministry of defence is now being forced to fight another battle with another limb of Government of India i.e. Income Tax Department and it appears that his war is still not over. Undisputedly, it is nobody's case that petitioner is not entitled for disability pension. technicalities are coming in his way in matter of grant of refund. Section 119 of Income Tax Act, 1961 reads as under:- 119. Instructions to subordinate authorities (1) Board may, from time to time, issue such orders, instructions and directions to other income- Writ Petition No.8858/2019 4 tax authorities as it may deem fit for proper administration of this Act, and such authorities and all other persons employed in execution of this Act shall observe and follow such orders, instructions and directions of Board: Provided that no such orders, instructions or directions shall be issued- (a) so as to require any income- tax authority to make particular assessment or to dispose of particular case in particular manner; or (b) so as to interfere with discretion of 2 Deputy Commissioner (Appeals)] 3 or Commissioner (Appeals)] in exercise of his appellate functions. (2) Without prejudice to generality of foregoing power,- (a) Board may, if it considers it necessary or expedient so to do, for purpose of proper and efficient management of work of assessment and collection of revenue, issue, from time to time whether by way of relaxation of any of provisions of sections 5 139], 143, 144, 147, 148, 154, 155, 6 sub- section (1A) of section 201, sections 210, 211, 7 234A, 234B], 234C], 271 and 273 or otherwise, general or special orders in respect of any class of incomes or class of cases, setting forth directions or instructions (not being prejudicial to assessees) as to guidelines, principles or procedures to be followed by other income- tax authorities in work relating to assessment or collection of revenue or initiation of proceedings for imposition of penalties and any such order may, if Board is of opinion that it is necessary in public interest so to do, be published and circulated in prescribed manner for general information; (b) Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise 8 any income- tax authority, not being Deputy Commissioner (Appeals) or Commissioner (Appeals)] to admit application or claim for any exemption, deduction, refund or any other relief under this Act after expiry of period specified by or under this Act for making such application or claim and deal with same on merits in accordance with law. (c) Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order Writ Petition No.8858/2019 5 for reasons to be specified therein, relax any requirement contained in any of provisions of Chapter IV or Chapter VIA, where assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to following conditions, namely:- (i) default in complying with such requirement was due to circumstances beyond control of assessee; and (ii) assessee has complied with such requirement before completion of assessment in relation to previous year in which such deduction is claimed: Provided that Central Government shall cause every order issued under this clause to be laid before each House of Parliament.] It is true that Commissioner of Income Tax is empowered to condone delay up to six years and beyond that, Central Board of Direct Taxes is empowered to condone delay and in those circumstances, application submitted by petitioner for refund of tax for assessment year 2007 08 to 2015 16 has been partially allowed and refund has been ordered only in respect of assessment year 2012 13 to 2015 2016 without interest. Heavy reliance has been placed upon circular issued by Central Board of Direct Taxes dated 09.06.2019. Reliance has been placed by learned counsel for respondent upon paras 3 and 6 of CBDT circular. aforesaid paragraph reads as under:- 3. No condonation application for claim of refund / loss shall be entertained beyond six years from end of assessment year for which such application / claim is made. This limit of six years shall be applicable to all authorities having powers to condone delay as per above prescribed monetary limits, including Board. condonation application should be disposed of within six months from end of month in which application is Writ Petition No.8858/2019 6 received by competent authority, as far as possible. 6. belated application for supplementary claim of refund (claim of additional amount of refund after completion of assessment for same year) can be admitted for condonation provided other conditions as referred above are fulfilled. powers of acceptance / rejection within monetary limits delegated to Pr.CCsIT/CCsIT/Pr.CsIT/ CsIT in case of returns claiming refund and supplementary claim of refund would be subject to following further conditions: (i) income of assessee is not assessable in hands of any other person under any of provisions of Act. (ii) No interest will be admissible on belated claim of refunds. (iii) refund has arisen as result of excess tax deducted/collected at source and/or excess advance tax payment and/or excess payment of self-assessment tax as per provisions of Act. Meaning thereby, there is power with Central Board of Direct Taxes to condone delay. There appears to be no justification in forcing petitioner to file application before Central Board of Direct Taxes. Once power is there and it was not petitioner, who was at fault in matter, this Court, in peculiar facts and circumstances of case, is of considered opinion that delay can be condoned by this Court also, and therefore, delay in filing application for refund of tax is hereby condoned. It is not case where assessee was sleeping over his right, it is case where assessee was fighting with department for his legitimate right of grant of disability pension, as he was disabled officer and his original application was allowed only on 03.08.2017 and order was passed by Ministry of Defence on 17.11.2017 granting him disability pension w.e.f. Writ Petition No.8858/2019 7 01.01.2006 and with quite promptitude he has submitted application for refund of tax. This Court in case of Colonel Madan Gopal Singh Negi v/s CIT (II) (W.P. No.29017/2018) vide judgment dated 28.02.2019, in similar circumstances has held as under:- In considered opinion of this Court, as income of petitioner was exempted, department does not have any other choice except to refund amount and disabled Army Officer cannot be made to run from pillar to post on account of various technicalities as stated in writ petition. This Court is aware of its limitation of not Travelling and Traversing into prohibited territory of Legislating through Court orders however this Court feels duty bound to state obvious, more so when Call of Duty of Judge inspite him to Underline requirement of brushing aside Administrative Technicality while Dispensing Justice. Our Army Soldiers, Naval Officials and Fighter are Day and Nights protecting Our Territorial Borders from Enemy Infiltration and Attacks and even while putting their life to greatest risk, are keeping all Citizens safe and Secure and making Our life free from all such Dangers, where they don't think of Technicalities while Fighting with Enemies at Front, as to whether pulling Trigger of their Gun would invite Court of inquiry and from this practicalperspective this Court wants to express its concern for not putting too much of technicalities in such matters by those who are invested with Administrative Powers to deal and decide affairs of Personnel of Indian Armed Forces. Court records and reiterates its absolute commitment to adherence of Rule of Law in its strictest terms, without carving out any exception to it, however it intends to convey its concern for welfare of War Heros who marvels at Borders and within Country, should not be unnecessarily Harassed or Troubled, for Technical adherence to some archaic administrative procedures having no thoughtful purpose sought to be achieved, while denying Legitimate Relief to Members of Armed Forces. Writ Petition No.8858/2019 8 In light of aforesaid and in considered opinion of this Court, as this Court has already condoned delay, respondent is directed to process claim of petitioner and to grant refund for which he is lawfully entitled within period of sixty days from date of receipt of certified copy of this order. In matter of grant of interest, CBDT circular will not come in way of petitioner, as petitioner is not at fault in matter. respondent shall also pay interest in respect of entire amount right from 2007 08 to 2015 16, as statute i.e. Income Tax Act, 1961 does not debar assessee, keeping in view peculiar facts and circumstances of case, for grant of interest. With aforesaid, present writ petition stands allowed. No order as to costs, Certified copy, as per rules. (S.C. SHARMA) (SHAILENDRA SHUKLA) JUDGE JUDGE Ravi Digitally signed by Ravi Prakash Colonel Ashwani Kumar Ram Singh (Retd.) v. Principal Commissioner of Income-tax