Saji Joseph V. Union of India and The Commissioner of Income Tax and The Income Tax Officer

WP(C)/3399/2016

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The case revolves around a writ petition filed by Saji Joseph, the proprietor of J.S. Communication, challenging the rejection of his tax refund claim by the Income Tax Department. The petitioner had claimed a refund of TDS deducted in the financial year 2011-12 but faced rejection due to the delay in filing the refund application, which was submitted in 2015. The petitioner argued that the delay was only two years and cited a circular and a judicial decision supporting his claim that refunds should be entertained within six years. The Income Tax Department contended that the normal limitation period for claiming a refund is one year, which had expired. The court found that the petitioner's case fell within the ambit of the cited circular and judicial precedent, leading to the setting aside of the impugned order.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 697971 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 19-07-2023
• Assessment Year: misc
• Other Referred Cases: Pala Marketing Co-operative Society Ltd. v. Union of India [2018 (1) KLT 589]
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: CHRISTOPHER ABRAHAM; K M V PANDALAI
• Assessee Lawyers: ANTONY MATHEW
• Keywords: Condonation of delay; Income Tax Refund; Limitation Period; TDS
• Section: 119(2)(b)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL WEDNESDAY, THE 19TH DAY OF JULY 2023 / 28TH ASHADHA, 1945 WP(C) NO. 3399 OF 2016 PETITIONER/S: SAJI JOSEPH AGED 36 YEARS S/O.SRI. JOSEPH MARAMKUZHAKKAL HOUSE, EAST VAZHAPILLY P.O.,MUVATTUPUZHA,ERNAKULAM DISTRICT,PIN-686 673 BY ADV SRI.ANTONY MATHEW RESPONDENT/S: 1 UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GOVERNMENT OF INDIA ,MINISTRY OF FINANCE, NORTH BLOCK,NEW DELHI,PIN-110 001 2 THE COMMISSIONER OF INCONE TAX OFFICE OF INCOME TAX COMMISSIONER,I.S.PRESS ROAD, ERNAKULAM, KOCHI-682 018 3 THE INCOME TAX OFFICER K.A.P.COMPLEX, ALUVA, ERNAKULAM DISTRICT BY ADVS. SRI.CHRISTOPHER ABRAHAM, INCOME TAX DEPARTMENT SRI.K.M.V.PANDALAI INCOME TAX DEPARTMENT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.07.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 3399 OF 2016 2 J U D G M E N T 1. Order dated 1.10.2015 Ext.P4 under Section 119(2)(b) of the Income Tax Act, 1961 of the Principal Commissioner of Income Tax, Office of the Principal Commissioner of Income Tax, Central Revenue Building, Kochi-2 rejecting the petition filed by the petitioner claiming refund of Rs.1,65,300/- being barred by law of limitation is under challenge. 2. The facts in brief are that petitioner is the proprietor of J.S.Communication, Muvattupuzha engaged in the business of selling of the products manufactured by M/s.Unitech Wireless Pvt. Ltd., Tamilnadu on commission basis up to 2012. Petitioner was allotted with permanent account number (PAN) BPTPS4327B. M/s.Unitech Wireless Private Ltd. used to supply products till 2012 and while so, an amount of Rs.1,75,561/- was deducted from the account of the petitioner towards tax deducted at source ('TDS', for short) for the WP(C) NO. 3399 OF 2016 3 financial year 2011-12. In the meanwhile, the Company which was supplying materials to the petitioner closed down their operations. In the absence of supply of Form-16, petitioner submitted an application for refund by moving an application dated 26.2.2015, Ext.P3, along with an application, Ext.P2, for condonation of delay of two years. The same was dismissed as noticed above vide the impugned order Ext.P4. 3. Learned counsel appearing on behalf of the petitioner in support of his contention relies upon circular No.9/2015 dated 9.6.2015, Ext.R2(a), issued by Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes and also the decision of the Division Bench of this Court in Pala Marketing Co-operative Society Ltd. v. Union of India [2018 (1) KLT 589], to contend that as per both the circular and the judgment, application for refund or loss can not be entertained beyond six years, whereas in the present case, delay in filing application for WP(C) NO. 3399 OF 2016 4 refund was only two years. Thus, the order impugned Ext.P4 is not sustainable in the eyes of law. 4. On the other hand, learned Standing Counsel for the Income Tax Department opposed the aforementioned prayer by relying upon the same circular Ext.R2(a) and submitted that normal limitation time for making a claim for refund is one year from the last date of the assessment year and the limitation expired on 31.3.2004 and the return was filed on 23.2.2015. Petitioner has not been able to explain any genuine hardship caused and therefore the order impugned Ext.P4 is perfect and cannot be interfered with. 5. I have heard the learned counsel appearing for the parties and appraised the paper book. 6. The impugned order reads as under: “Order u/s 119(2)(b) of the IT Act, 1961 The assessee filed a petition on 03/03/2015 before the Commissioner of Income Tax, Kochi, to condone the delay in filing the return of income for the A.Y. 2012-13. WP(C) NO. 3399 OF 2016 5 2. The return of income for the A.Y. 2012-13 was filed belatedly on 23.02.2015 claiming a refund of Rs. 1,65,300/-. 3. The reason for delay in filing the return of income as stated by the assessee is that the assesee was unaware of deduction of TDS and non- issue of TDS certificate by the deductor. I have examined this case. On the facts of this case, I do not find it as a fit case for condonation of delay. 4 In view of the above, the delay in filing the return of income for the A.Y 2012-13 is hereby rejected.” 7. Relevant portion of Circular No.9/2015 dated 9.6.2015 Ext.R2(a) reads as under: “ xxx xxx xxx 3. No condonation application for claim of refund/loss shall be entertained beyond six years from the end of the assessment year for which such application/claim is made. This limit of six years shall be applicable to all authorities having powers to condone the delay as per the above prescribed monetary limits, including the Board. A condonation application should be disposed of within six months from the end of the month in which the application is WP(C) NO. 3399 OF 2016 6 received by the competent authority, as far as possible. 4. In a case where refund claim has arisen consequent to a Court order, the period for which any such proceedings were pending before any Court of Law shall be ignored while calculating the said period of six years, provided such condonation application is filed within six months from the end of the month in which the Count order was issued or the end of financial year whichever is later. 5. The powers of acceptance/rejection of the application within the monetary limits delegated to the Pr.CCsT/CCsIT/Pr.CsIT/Cs.IT in case of such claims will be subject to following conditions: i. At the time of considering the case under Section 119(2)(b), it shall be ensured that the income/loss declared and /or refund claimed is correct and genuine and also that the case is of genuine hardship on merits. ii. The Pr.CCIT/CCIT/PT.CIT/CIT dealing with the case shall be empowered to direct the jurisdictional assessing officer to make necessary inquiries or scrutinize the case in accordance with the provisions of the Act to ascertain the correctness of the claim. WP(C) NO. 3399 OF 2016 7 6. A belated application for supplementary claim of refund (claim of additional amount of refund after completion of assessment for the same year) can be admitted for condonation provided other conditions as referred above are fulfilled. The powers of acceptance/rejection within the monetary limits delegated to the Pr.CCsIT/CCsIT/Pr.CsIT/CsIT in case of returns claiming refund and supplementary claim of refund would be subject to the following further conditions: i. The income of the assessee is not assessable in the hands of any other person under any of the provisions of the Act. ii. No interest will be admissible on belated claim of refunds. iii. The refund has arisen as a result of excess tax deducted/collected at source and/or excess advance tax payment and/or excess payment of self-assessment tax as per the provisions of the Act.” 8. The circular does not limit condonation of delay in case the applicant or assessee does not make out a case of genuine hardship, but, on the contrary, the impugned order was passed in the WP(C) NO. 3399 OF 2016 8 absence of any explanation qua genuine hardship. I am of the view that the case of the petitioner is squarely covered by the circular aforementioned. Accordingly, impugned order Ext.P4 dated 1.10.2015 is set aside. Application for refund filed by the petitioner is within the period of limitation. Respondents are directed to expedite process of the application filed by the petitioner claiming refund for the assessment year 2012-13 as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a certified copy of this judgment. Writ petition is disposed of as above. Sd/- AMIT RAWAL JUDGE jg WP(C) NO. 3399 OF 2016 9 APPENDIX OF WP(C) 3399/2016 PETITIONER EXHIBITS EXT.P1:TRUE COPY OF THE INCOME TAX AND TAX RETURN SUBMITTED BY THE PETITIONER EXT.P2:TRUE COPY OF THE DELAY PETITION DATED 23.02.2015 SUBMITTED BY THE PETITIONER EXT.P3:TRUE COPY OF THE PETITION DATED 26.02.2015 SUBMITTED BY THE PETITIONER EXT.P4:TRUE COPY OF THE ORIGINAL ORDER DATED 01.10.2015 ISSUED BY THE 2ND RESPONDENT RESPONDENTS' EXHIBITS EXT.R2(a) : TRUE COPY OF CIRCULAR NO.9/2015 IN F.NO.312/2015-OT DATED 9.6.2015 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES. "