SHRI.AYYAPPAN SUNDARAN V. THE CHIEF COMMISSIONER OF INCOME TAX

WP(C)/24492/2016

AI Insights

The case involves Shri Ayyappan Sundaran, the petitioner, who challenged the rejection of his applications for condonation of delay in filing income tax returns for the assessment years 1997-98 and 2000-01. The petitioner, who worked in various shipping companies both offshore and on land, faced difficulties in filing his returns on time. He had filed returns up to the assessment year 2002-03, but the returns for 1997-98 and 2000-01 were time-barred, leading him to file applications for condonation of delay. The Principal Commissioner of Income Tax rejected these applications, citing lack of substantiation for the delay reasons provided. The petitioner argued that the Commissioner took a hyper-technical view and that genuine hardship would ensue if the delay was not condoned. The court agreed with the petitioner, emphasizing the need for a pragmatic approach in such cases and the importance of not causing genuine hardship to the taxpayer.

• Counselvise Citation: [2016] 140 COUNSELVISE.COM (IT) 755487 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 03-11-2016
• Assessment Year: misc
• Laws Referred To: Income Tax Act 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: T M SREEDHARAN; V P NARAYANAN; VANDANA MENON; DIVYA RAVINDRAN; ABRAHAM THARAKAN; V V VARGHESE
• Keywords: Condonation of delay; Filing Returns; Genuine hardship; Income Tax; Seaman
• Section: 119(2)(b)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE THURSDAY, THE 3RD DAY OF NOVEMBER 2016/12TH KARTHIKA, 1938 WP(C).No. 24492 of 2016 (J) ---------------------------- PETITIONER : ------------------- SHRI.AYYAPPAN SUNDARAN S/O. LAE K.A.AYYAPPAN, AGED 67 YEARS, KIZHAKKE VEEDU, P.O. THOLANUR, PALAKKAD. BY ADVS.SRI.T.M.SREEDHARAN (SR.) SRI.V.P.NARAYANAN SMT.V ANDANA MENON SMT.DIVY A RAVINDRAN SRI.ABRAHAM VARGHESE THARAKAN SRI.V.V.VARGHESE RESPONDENTS : ------------------------ 1. THE CHIEF COMMISSIONER OF INCOME TAX KOCHI, C.R.BUILDING, I.S.PRESS ROAD, KOCHI-682018. 2. THE PRINCIPAL COMMISSIONER OF INCOME TAX AAYAKAR BHAVAN, SHAKTAN NAGAR, THRISSUR-680 001. 3. THE INCOME TAX OFFICER WARD-4, PALAKKAD - 678 001. R BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-11-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 24492 of 2016 (J) ---------------------------- APPENDIX PETITIONER(S)' EXHIBITS -------------------------------------- EXHIBIT P1: TRUE COPY OF THE COMPUTA TION OF INCOME FOR THE ASSESSMENT YEAR 1997-1998. EXHIBTI P2: TRUE COPY OF THE REPRESENTATION DAT ED 5.5.2003 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. EXHIBIT P3: TRUE COPY OF THE REPRESENTA TION DATED 12.1.2011 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P4: TRUE COPY OF THE REPRESENTA TION DATED 29.7.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXHIBIT P5: TRUE COPY OF THE ORDER DATED 29.2.2016 ISSUED BY THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 1997-98. EXHIBIT P6: TRUE COPY OF THE ORDER DATED 29.2.2016 ISSUED BY THE 2ND RESPONDENT FOR THE ASSESSMENT YEAR 2000-01. RESPONDENT(S)' EXHIBITS : NIL ----------------------------------------- /TRUE COPY/ P.A TO JUDGE AV A.M.SHAFFIQUE, J. ------------------------------------ W.P.(C).No.24492 of 2016 ----------------------------------- Dated this the 3rd day of November, 2016 J U D G M E N T The petitioner challenges Exts.P5 & P6 by which applications under Section 119(2)(b) of the Income Tax Act 1961 have been rejected by the Principal Commissioner of Income Tax. 2. The applications came to be filed to condone delay in filing returns for the assessment years 1997-98 and 2000-01. According to the petitioner, the delay occurred since he was working in various shipping companies at offshore and in land. He has filed his returns up to the assessment year 2002-03. Out of this, returns of income for the assessment year 1997-98 and 2000-01 were time barred for which he had filed applications to condone delay before the Commissioner of Income Tax. The matter was kept pending for quite a long time and ultimately, the petitioner submitted Ext.P4 dated 29.07.2015 requesting the matter to be taken up for hearing. The Commissioner having heard the matter observed that the claim cannot be entertained as the assessee's claim for delay was due to non-receipt of Form 16 from the employer which is not substantiated and cannot be accepted on its face value without corroborative evidence. Hence, the delay was not condoned. 3. Heard the learned counsel for the petitioner and the learned standing counsel appearing for the respondents. W.P.(C).No.24492 of 2016 2 4. The main contention urged by the petitioner is that the Commissioner had taken a hyper technical view in the matter. The question to be considered is whether any genuine hardship would be caused to the petitioner, if the delay is not condoned. Section 119(2)(b) of the Income Tax Act 1961 reads as under : “ the 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 any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law.” 5. There cannot be any dispute about the statutory provision as the Commissioner is enjoined with the power to condone delay, if genuine hardship is caused to the assessee. In the applications to condone delay the petitioner had clearly stated about his difficulties in filing the return especially as he was a seaman and was travelling all throughout and therefore, he could file the return en bloc for which there was some delay. Being an individual he has his own limitations in the matter. The Commissioner of course had proceeded on the basis that the reasons stated for the delay is not sustainable. 6. In fact, while considering an assessee's claim for condoning the delay, the Commissioner ought to take a more pragmatic W.P.(C).No.24492 of 2016 3 approach, especially when an employee has filed his return. He does not have the necessary infrastructure to file the returns in time which also is a matter to be considered. If the assessee is entitled for any refund on account of the assessment being completed, there is no reason why the Government of India should retain such amount from the assessee. Under such circumstances, I am of the view that if the delay is not condoned it would definitely cause genuine hardship to the petitioner. This writ petition is therefore allowed as under : 1. Exts.P5 and P6 are set aside. 2. The delay in filing the returns are condoned. 3. The assessing officer shall take into consideration the returns filed by the petitioner and complete the assessment within a period of three months from the date of receipt of a copy of this judgment. Sd/- A.M.SHAFFIQUE, JUDGE. AV "