Daison Joseph v. The Principal Commissioner of Income-tax, Kottayam/The Income-tax Officer Ward-I, Kottayam/The Principal Chief Commissioner of Income-tax, Kerala/The Union of India
[Citation -2020-LL-0128-96]

Citation 2020-LL-0128-96
Appellant Name Daison Joseph
Respondent Name The Principal Commissioner of Income-tax, Kottayam/The Income-tax Officer Ward-I, Kottayam/The Principal Chief Commissioner of Income-tax, Kerala/The Union of India
Court HIGH COURT OF KERALA AT ERNAKULAM
Relevant Act Income-tax
Date of Order 28/01/2020
Judgment View Judgment
Keyword Tags delay in filing return • statutory time limit • condonation of delay • sufficient cause • genuine hardship
Bot Summary: No.1503 OF 2020(K) 2 ALEXANDER THOMAS, J. W.P.(C.) No. 1503 of 2020 Dated this the 28th day of January, 2020 JUDGMENT The case projected in the W.P.(C.) is as follows : That the petitioner is running a franchise of M/s.Karvy Stock Broking Ltd. at Erattupuetta near Pala in Kottayam District and that he is now aggrieved by the impugned Ext.P4 order dated 30.07.2019 issued by the 1 st respondent, under Sec.119(2)(b) of the Income Tax Act, whereby the plea of the petitioner for condoning delay in filing returns of the income tax for the assessment years 2012-13, 2013-14 and 2014-15 has been rejected. According to the petitioner, the said rejection order cannot be said to be reasonable and that the impugned order has not taken into consideration all the relevant aspects of the matter and that the petitioner has indeed got his genuine hardships and realties as contemplated in Ext.P5, Central Board of Direct Taxes Circular No.9/2015 dated 9.6.2015. The main contentions urged by the petitioner are as follows : The case of the petitioner qualifies every condition specified in Ext.P5 circular. The petitioner would point out that the Accounts Department has no case that the IT returns of the petitioner is factually wrong or that claim for refund is said to be inadmissible and thus the petitioner would WP(C). No.1503 OF 2020(K) 7 urge that there is no dispute regarding the entitlement of the petitioner and that the only hurdle is the delay secured in filing of the return which according to the petitioner has been caused due to reasons beyond his control and the authority should have adopted a pragmatic, fair and just approach rendering substantial justice to the petitioner, particularly, when there is no loss of revenue and also when there is absolutely no case of culpable negligence of any malafides on the part of the petitioner in regard to the late submission of the returns. Such additional materials by way of medical records of the hospitals concerned may be made available by the petitioner to the 1 st respondent along with the affidavit of the petitioner, without much delay, preferably within a period of one month from the date of production of a certified copy of this judgment. After submission of the said additional materials, the 1 st respondent may give notice of hearing to the petitioner and thereafter, the 1st respondent will afford reasonable opportunity of being heard to the petitioner through the authorised representative/counsel, if any and then will render a considered decision on the plea made by the petitioner for the condonation of delay subject to the delay in the returns as made out in Ext.P3 application and after duly taking into consideration various contentions of the petitioner and also in the light of the dictum laid down by the various courts including the aforestated judgments mentioned hereinabove.


IN HIGH COURT OF KERALA AT ERNAKULAM PRESENT HONOURABLE MR. JUSTICE ALEXANDER THOMAS TUESDAY, 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941 WP(C).No.1503 OF 2020(K) PETITIONER/S: DAISON JOSEPH AGED 41 YEARS PULLATTU HOUSE, POONJAR P.O., KOTTAYAM DISTRICT,PIN- 686 581 BY ADV. SRI.BOBBY JOHN RESPONDENT/S: 1 PRINCIPAL COMMISSIONER OF INCOME TAX KOTTAYAM, 1ST FLOOR,PUBLIC LIBRARY BUILDING, KOTTAYAM,PIN-686 001 2 INCOME TAX OFFICER WARD-I, KOTTAYAM,PUBLIC LIBRARY BUILDING,KOTTAYAM,PIN 686018 3 PRINCIPAL CHIEF COMMISSIONER OF INCOME TAX, KERALA, CENTRAL REVENUE BUILDING, I.S.PRESS ROAD, ERNAKULAM, PIN-682 018 4 UNION OF INDIA, REPRESENTED BY TS SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, RAJPATH MARG, CENTRAL SECRETARIAT, NEW DELHI,PIN-110 001 R1-4 BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX R4 BY ADV. SRI.K.SUDHINKUMAR OTHER PRESENT: SRI.P.VIJAYAKUMAR, ASGI THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.01.2020, COURT ON SAME DAY DELIVERED FOLLOWING: WP(C).No.1503 OF 2020(K) 2 ALEXANDER THOMAS, J. W.P.(C.) No. 1503 of 2020 Dated this 28th day of January, 2020 JUDGMENT case projected in W.P.(C.) is as follows : That petitioner is running franchise of M/s.Karvy Stock Broking Ltd. at Erattupuetta near Pala in Kottayam District and that he is now aggrieved by impugned Ext.P4 order dated 30.07.2019 issued by 1 st respondent, under Sec.119(2)(b) of Income Tax Act, whereby plea of petitioner for condoning delay in filing returns of income tax for assessment years 2012-13, 2013-14 and 2014-15 has been rejected. According to petitioner, said rejection order cannot be said to be reasonable and that impugned order has not taken into consideration all relevant aspects of matter and that petitioner has indeed got his genuine hardships and realties as contemplated in Ext.P5, Central Board of Direct Taxes Circular No.9/2015 dated 9.6.2015. factual details are as follows : 2. In year 2010, petitioner's child was diagnosed as cancer patient during 2010. thereafter, petitioner has been running from hospital to hospital in connection with treatment of his daughter until 2017 when patient completed treatment and advised for WP(C).No.1503 OF 2020(K) 3 further follow up action. On 20.06.2016, petitioner has filed Ext.P2A and Ext.P2B returns for assessment year 2013-14 and 2014-15 before 2nd respondent. On 29.11.2017, Regional Cancer Centre, Thiruvananthapuram issued Ext.P5 certificate stating completion of treatment. On 11.12.2017, petitioner has filed Ext.P2 return for assessment year 2012-13 before 2nd respondent and also filed Ext.P3 application under Sec.119(2)(b) of Income Tax Act, 1961 for condonation of delay in filing returns for abovesaid periods. On 05.10.2018, matter was posted for hearing and petitioner appeared before 1st respondent and explained circumstances for delay in filing returns. On 30.07.2019, 1 st respondent passed Ext.P4 order rejecting Ext.P3 application for condonation of delay. 3. main contentions urged by petitioner are as follows : (a) case of petitioner qualifies every condition specified in Ext.P5 circular. Therefore, 1 st respondent ought to have allowed application considering genuine hardship which caused delay in filing returns. (b) only reason stated in Ext.P4 order for rejecting application for condonation of delay is that petitioner was running franchisee during relevant period though he could not file income tax returns. said reason stated for rejecting application is hyper technical and imaginary in nature, and contrary to purpose and object WP(C).No.1503 OF 2020(K) 4 of Sec.119(2)(b) of Income Tax Act, 1961 and also Ext.P5 circular issued by CBDT. (c) impugned order militates against dictum laid down in this regard by various decisions of Hon'ble Courts. (d) impugned order is perverse in nature. In light of these averments and contentions, petitioner has filed instant W.P.(C.) with following prayers. (i) to issue writ in nature of certiorari or any other appropriate order quashing Exhibit-P4 order passed by 1st respondent. (ii) to issue writ in nature of mandamus or any other appropriate order directing 1st and 2nd respondents to treat Exhibit P2, Exhibit P2A and Exhibit P2B returns filed by petitioner as returns within statutory time limit, and to consider claim of refund pursuant to same expeditiously. (iii) to issue writ in nature of mandamus or any other appropriate order directing 2nd respondent to refund amount claimed in Exhibit P2, Exhibit P2A and Exhibit P2B returns, after due verification of relevant records, expeditiously. (iv) to issue writ in nature of mandamus or any other appropriate order directing 2nd respondent to adjust amount claimed as refund in Exhibit P2, Exhibit P2A and Exhibit P2B returns towards future liabilities of petitioner under Income Tax Act, 1961 after due verification of relevant records. (v) to pass such other orders as this Hon'ble Court may deem fit and proper in facts and circumstances of case; and (v) to award cost of proceeding to petitioner. 4. Heard Sri.Bobby John Pulickaparambil, learned counsel appearing for petitioner and Sri.Jose Joseph, learned standing counsel appearing for respondents 1 to 3- Income Tax Department, Government of India, Sri.K.Sudeep Kumar, learned Central Government Counsel appearing for R4- Union of India. 5. relevant portion of clause (b) of sub-section (2) of Section 119 of Income Tax Act, 1961 provides as follows : (b) Board may, if it considers it desirable or expedient so to be for WP(C).No.1503 OF 2020(K) 5 avoiding genuine hardship in any case or class of cases, by general or special order, authorise (any income-tax authority, not being 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. 6. Central Board of Direct Taxes has issued Ext.P5 circular No.9/2015 dated 9.6.2015 and para 5 thereof reads as follows : 5. powers of acceptance/rejection of application within monetary limits delegated to Pr.CCsIT/CCsIT/Pr.CsIT/CsIT in case of such claims will be subject to following conditions : i. At time of considering case under Section119 (2)(b), it shall be ensured that income/loos declared and /or refund claimed is correct and genuine and also that case is of genuine hardship on merits. ii. Pr.CCIT/CCIT/Pr.CIT/CIT dealing with case shall be empowered to direct jurisdictional assessing officer to make necessary inquiries or scrutinize case in accordance with provisions of Act to ascertain correctness of claim. 7. Sri.Bobby John Pulickaparambil, learned counsel appearing for petitioner would contend that impugned Ext.P4 rejection order dated 30.7.2019 has been rendered by 1 st respondent without taking into consideration relevant aspects of matter and same cannot be said to be reasonable and proper exercise of power in this regard. learned counsel for petitioner would place reliance on various judgments which are as follows. That in Sudha Krishnaswamy v.Chief Commissioner of Income Tax [(2019) 414 ITR 144 (KAR)], issue that is considered as regarding correctness of order rejecting application for condonation of delay under Sec. 119(2)(b) of Income Tax Act on ground that assessee sustained injuries in accident and also he is facing stringent financial crisis. Therein Karnataka High Court deprecated practice of rejecting said application on hyper WP(C).No.1503 OF 2020(K) 6 technicalities and it was held as follows : It is trite law that rendering substantial justice shall be paramount consideration of Courts as well as Authorities rather than rejecting on hyper- technicalities. It may be true that there is some lapse on part of petitioner, that itself would not be factor to turn out plea for filing of return, when explanation offered was acceptable and genuine hardship is established. Sufficient cause shown by petitioner for condoning delay in acceptable and same cannot be rejected out-rightly technicalities. 8. Further that in decision in Artist Tree Pvt. Ltd.v. Central Board of Direct Taxes, (2014) 369 ITR 691 (Bom) considered case regarding correctness of order rejecting application for delay condonation under Sec.119 (2)(b) and records including TDS certificate was misplaced during shifting of office of company and therein Bombay High Court cautioned against adopting restrictive approach in such matters particularly when there is no malafide or culpable negligence on part of assessee and wherein, it has been held in para 23 thereof as follows : In light of aforesaid discussion, we are of opinion that acceptable explanation was offered by petitioner and case of genuine hardship was made out. refusal by CBDT to condone delay was result of adoption of unduly restrictive approach. CBDT appears to have proceeded on basis that delay was deliberate, when from explanation offered by petitioner, it is clear that delay was neither deliberate, nor on account of culpable negligence or any malefides. Therefore, imputed order dated 16 May 2006 made by CBDT refusing to condone delay in filing return of Income for assessment year 1997-1998 is liable to be set aside. Consistent with provisions of Section 119(2)(b) of said Act, concerned ITO or assessing officer would have to consider return of income and deal with same on merits and in accordance with law. 9. petitioner would point out that Accounts Department has no case that IT returns of petitioner is factually wrong or that claim for refund is said to be inadmissible and thus petitioner would WP(C).No.1503 OF 2020(K) 7 urge that there is no dispute regarding entitlement of petitioner and that only hurdle is delay secured in filing of return which according to petitioner has been caused due to reasons beyond his control and authority should have adopted pragmatic, fair and just approach rendering substantial justice to petitioner, particularly, when there is no loss of revenue and also when there is absolutely no case of culpable negligence of any malafides on part of petitioner in regard to late submission of returns. 10. It is urged by Sri.Bobby John Pulickaparambil, learned counsel appearing for petitioner that incidents in petitioner's family is great tragedy inasmuch as his daughter who was then only 2 years old, was diagnosed with serious cancerous ailment and he had to run from hospitals to hospitals for treatment of his child and that it is only in view of extreme mental strain and circumstances under which petitioner was forced to divert his energies solely for purpose of treatment of his child, that delay has occurred. True, that petitioner could not concentrate on his business activities, which resulted in delay in submissions of returns, but same occurred only due to these circumstances and that department has no case that there is any element of culpable negligence or any malafides or there was any deliberate delay on part of petitioner in delaying submission of his returns. Hence, it is urged by counsel for petitioner that impugned order WP(C).No.1503 OF 2020(K) 8 is vitiated and that this Court may grant reliefs sought for by petitioner. 11. Sri. Jose Joseph, learned standing counsel appearing for respondents 1 to 3 has opposed pleas in abovesaid petition. After hearing both sides and after careful evaluation of facts and circumstances of this case, petitioner has not placed material particulars regarding treatment of child and it is seen that petitioner has mainly placed reliance on Ext.P1 certificate issued by Regional Cancer Centre, Thiruvananthapuram. During course of hearing, learned counsel for petitioner has also made available copy of medical certificate/medical records issued by Amrita Institute of Medical Sciences and Research Centre, Edappally which deals with treatment given to child etc. petitioner should have given more comprehensive details of treatment of child and should also has to sworn to affidavit regarding various aspects which compelled him to divert his energies to business affairs, in view of his pressing compulsions to give more devoted attention to treatment of his infant daughter. In absence of such materials, 1 st respondent cannot be blamed for taking approach of this nature in impugned order. If petitioner had placed all relevant materials, 1 st respondent could have considered all same and render considered decision thereon and after adverting to all such relevant aspects. Pri ma facie, this Court finds force in WP(C).No.1503 OF 2020(K) 9 abovesaid contention raised by petitioner on basis of dictum laid down by Bombay High Court in aforestated judgment in Para No.23 of Artist Tree Pvt.Ltd case (Supra), where it has been held that so long as delay cannot be said to be deliberate or cannot be said to be on account of culpable negligence or malafides, then respondent authority concerned would take fair and liberal approach in matter, in order to ensure substantial justice be meted out. 12. Taking note of overall facts of this case and more particularly, taking into account tragic circumstances, under which petitioner was forced to undergo in view of serious cancer ailments, that had affected his young and infant daughter, this Court is of considered view that matter could be given second look by 1 st respondent after considering all matters afresh. Accordingly, It is ordered that matter will stand remitted to 1 st respondent for consideration of all matters afresh and after taking into account additional materials that being produced by petitioner without any further delay. For effectuating such remit, impugned Ext.P4 order will stand quashed and Ext.P3 application will stand remitted to 1 st respondent for consideration and decision afresh. petitioner will immediately give all relevant details of treatment of his infant daughter and should also given additional medical certificates of hospitals concerned wherein she was hospitalised or treated either as inpatient or WP(C).No.1503 OF 2020(K) 10 outpatient showing details in connection with disease and various periods in question. Such additional materials by way of medical records of hospitals concerned may be made available by petitioner to 1 st respondent along with affidavit of petitioner, without much delay, preferably within period of one month from date of production of certified copy of this judgment. In said affidavit, petitioner should also meticulously and precisely deals with factual particulars regarding treatment of his child and periods in question. 13. After submission of said additional materials, 1 st respondent may give notice of hearing to petitioner and thereafter, 1st respondent will afford reasonable opportunity of being heard to petitioner through authorised representative/counsel, if any and then will render considered decision on plea made by petitioner for condonation of delay subject to delay in returns as made out in Ext.P3 application and after duly taking into consideration various contentions of petitioner and also in light of dictum laid down by various courts including aforestated judgments mentioned hereinabove. Considered decision on all affected matters may be taken by 1st respondent, without much delay, preferably within period of 2-3 months from date of submission of additional materials given by petitioner. However, it is made clear that in case petitioner does not give additional materials, within abovesaid time limit of one month WP(C).No.1503 OF 2020(K) 11 as aforestated, then 1st respondent may proceed with proceedings herein and then take considered decision in matter on basis of available materials etc. This Court would only observe that 1 st respondent would anxiously bestow his consideration to various aspects of matter and may also consider applicability of dictum laid down by Bombay High Court in aforecited Artist Tree Pvt. Ltd.'s case (supra) and various other rulings. With these observations and directions, above W.P.(C.) will stand disposed of. sd/- ALEXANDER THOMAS, JUDGE SKS WP(C).No.1503 OF 2020(K) 12 APPENDIX PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF TREATMENT CERTIFICATE NO.RCC/2017/TC/9462,DAED 29.11.2017 ISSUED FROM REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM EXHIBIT P2 TRUE COPY OF RETURN FOR ASSESSMENT YEAR 2012-13, FILED BY PETITIONER ON 11.12.2017 BEFORE 2ND RESPONDENT EXHIBIT-P2A TRUE COPY OF RETURN FOR ASSESSMENT YEAR 2013-14, FILED BY PETITIONER ON 20.06.2016 BEFORE 2ND RESPONDENT EXHIBIT P2 B TRUE COPY OF RETURN FOR ASSESSMENT YEAR 2014-15, FILED BY PETITIONER ON 20.06.2016 BEFORE 2ND RESPONDENT EXHIBIT P3 TRUE COPY OF APPLICATION FOR CONDONATION OF DELAY IN FILING RETURN , DATED 11.12.2017 SUBMITTED BY PETITIONER, BEFORE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF ORDER DATED 320.07.20198 PASSED BY 1ST RESPONDENT EXHIBIT P5 TRUE COPY OF CBDT CIRCULAR NO.9/20-15 DATED 09.06.2015 Daison Joseph v. Principal Commissioner of Income-tax, Kottayam/The Income-tax Officer Ward-I, Kottayam/The Principal Chief Commissioner of Income-tax, Kerala/The Union of India
Report Error