T.V.KRISHNAN V. PR. COMMISSIONER OF INCOME TAX

WP(C)/10405/2016

AI Insights

The case revolves around the challenge to the order of the Principal Commissioner of Income Tax, Kozhikode, which dismissed the petitioner's application for condonation of delay in claiming a tax refund. The petitioner, T.V. Krishnan, had his agricultural land acquired and TDS deducted, leading to a refund claim. The delay in filing the tax return was contested based on the issuance date of the TDS certificate and the applicability of certain circulars regarding the condonation of delay. The court found that the delay should be calculated from the date of the TDS certificate issuance, as per the relevant circular, and not from the assessment year 2008-2009, which had already expired.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 756707 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 11-08-2023
• Assessment Year: misc
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH
• Assessee Lawyers: P S SREEDHARAN PILLAI; ARJUN SREEDHAR; ARUN DHAN; T K SANDEEP
• Keywords: Condonation of delay; Income Tax; Tax refund; TDS; Agricultural Land Acquisition
• Section: 119(2)(b)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE AMIT RAWAL FRIDAY, THE 11TH DAY OF AUGUST 2023 / 20TH SRAVANA, 1945 WP(C) NO. 10405 OF 2016 PETITIONER: T.V.KRISHNAN AGED 65 YEARS, 'SHYAM NIVAS', ATTENGANAM, ODAYAMCHAL, KASARGODE. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN SRI.T.K.SANDEEP RESPONDENTS: 1 THE PRINCIPAL COMMISSIONER OF INCOME TAX, AAYANKAR BHAVAN, NORTH BLOCK, KOZHIKODE-673001. 2 CENTRAL BOARD OF DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK, NEW DELHI-110 001, REPRESENTED BY ITS CHAIRMAN. BY ADV. SRI.JOSE JOSEPH, SC, INCOME TAX THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 10405 OF 2016 -2- JUDGMENT 1. The order Ext.P8 of the Principal Commissioner of Income Tax, Kozhikode passed under the provisions of Section 119(2)(b) of the Income Tax Act, 1961 condoning the delay for claiming tax refund of Rs.1,85,450/- (Rupees One lakh eighty five thousand four hundred and fifty only) i.e., the TDS deducted by the Special Tahsildar, Kasargode on account of the acquisition of agriculture land, is under challenge on behalf of the petitioner. 2. Petitioner, as per the averments, was not a regular assessee since his annual income was solely from agricultural activities and less than the taxable threshold. In the year 1988 the land was compulsorily acquired and the total enhanced compensation assessed was Rs.17,74,333/- (Rupees Seventeen lakh seventy four thousand three hundred and thirty three only) along with interest from 1999 to 2007 amounting to Rs.18,26,591/- (Rupees Eighteen lakh twenty six WP(C) NO. 10405 OF 2016 -3- thousand five hundred and ninety one only). 50% of the payment was made on 05.07.2007 and an amount of Rs.1,85,448/- (Rupees One lakh eighty five thousand four hundred and forty eight only) was withheld towards the tax deduction. Petitioner received Ext.P2 (Form 16A) for the asssessment year 2007-2008 on 15.09.2014. It is on that background the return was filed on 04.11.2014 with a time limit of six years from the end of the assessment year as per Ext.P7 circular of the Board. Ext.P6 application for condonation in filing return showing sufficient cause and genuine hardships suffered by the petitioner was dismissed by the impugned order. 3. Learned counsel appearing on behalf of the petitioner submitted that the order Ext.P8 is based upon the previous circular of 2016 whereas the circular Ext.P7 dated 09.06.2015 envisaged the situation in which the petitioner had fallen, has not been considered. Therefore the order is illegal, aribitrary and liable to be set aside. 4. On the other hand, learned counsel for the WP(C) NO. 10405 OF 2016 -4- Income Tax submitted that the order is perfectly legal and justified. There was a misrepresentation in claiming condonation of delay by asserting the certificate of TDS was issued on 15.09.2014, but in fact it was issued on 18.07.2013. Therefore the return was beyond six years and urged this Court for dismissal of the writ petition. 5. I have heard learned counsel for the parties and appraised the paper book. 6. It would be expedient to extract the operative portion of the order Ext.P7. The same reads as follows: “2. On perusal of the records it is noticed that the assessee Shri T V Krishnan, Shyam Nivas, Attenganam, Odayamchal, Kasaragod (PAN: DCIPK9322J) filed the return of income for the A.Y. 2008-09 on 04.11.2014, having a delay of 76 months from the due date, with an income of Rs. 59790/- and claiming a refund of Rs. 1,85,450/-. The petition for condonation was filed before the Chief Commissioner of income Tax, Kochi on 06.05.2015. The Chief Commissioner of Income Tax vide order in F.No. Pr. CC-CHN/Tech/Cond/02/2015-16 dated 17-09- 2015 had transferred the application to this office. WP(C) NO. 10405 OF 2016 -5- 3. The assessee’s claim of refund had arisen from the TDS deducted by special Tahsildar, Kasaragod on acquisition of agriculture land. In the condonation petition, the assessee stated that he had received the TDS certificate from Tahsildar, kasaragod on 15.09.2014, but it is evident from the records that the certificate was issued on 18.07.2013, thereby rendering a false claim. It is further noticed from records that the application for condonation was submitted on 06.05.2015 by which there was delay beyond six years from the end of the Asst. year 2008-09, and as such the petition for this reason also cannot be acted upon, as per the Board’s Circular No.212/338/2002-ITA-II dated 30.10.2003. Further no justifiable reason or evidence has been produced for the delay in filing the return of Income. 4. I have considered the petition carefully and it is felt that the assessee does not have any genuine financial hardship. In the light of Board’s Circular No.212/338/2002-ITA-II dated 30.10.2003 and instruction No.13/06 dated 22.12.2006 issued in F No.312/47/2005-OT, this case does not fall under the purview to condone the delay and hence the condonation petition filed is hereby rejected.” 7. On perusal of the order it is evident that no WP(C) NO. 10405 OF 2016 -6- doubt the authorities noticed that the TDS certificate issued by the Tahsildar was on 15.09.2014 and not on 18.07.2013. It is not the case that the petitioner had been regular income tax payee as his income was less than the taxable income. However for the assesssment year 2008-2009 the income was assessible to the income tax on account of the acquisition of land, as noticed above, therefore filed the return in 2014 for the assessment period 2008-2009 till the refund of Rs.1,85,450/- (Rupees One lakh eighty five thousand four hundred and fifty only) on the basis of the TDS certificate. The application was declined as per the circular of 2003, which, in my view, is not permissible and sustainable, for, as per clause 4 of the circular Ext.P7 dated 9.6.2015, while calculating the period of six years in the refund claim arriving out of the order of the Court, the period for which any such proceedings were pending before the court shall be ignored. Clause 4 of the circular reads as under: “4. In a case where refund claim has arisen WP(C) NO. 10405 OF 2016 -7- 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 Court order was issued or the end of financial year whichever is later.” 9. Certificate is dated 18.07.2013. Therefore the period of six years would have been applicable from such date and could not relate back to assessment year 2008- 2009 whereby the period for filing the return had allegedly expired on 31.07.2008 . Thus the order Ext.P8 is wholly unsustainable and arbitrary and hereby set aside. Writ petition is allowed. Delay in filing the return and claiming refund is condoned. Respondents are directed to make the payment of refund in the account of the petitioner within a period of one month from the date of receipt of a certified copy of the judgment. Sd/- AMIT RAWAL JUDGE vv WP(C) NO. 10405 OF 2016 -8- APPENDIX OF WP(C) 10405/2016 PETITIONER EXHIBITS EXHIBIT P1 A TRUE COPY OF THE STATEMENT OF ACCOUNT FILE NO.A497/01 IN LAR NO.36/01, SUB COURT, HOSDURG ISSUED BY SPECIAL TAHSILDAR (LA) DATED 22.6.2007. EXHIBTI P2 A TRUE COPY OF THE FORM 16A ISSUED BY TAHSILDAR CERTIFYING DEDUCTION OF RS.1,85,448/-. EXHIBIT P3 A TRUE COPY OF THE INCOME TAX RETURN FILED ON 4.11.2014. EXHIBIT P4 A TRUE COPY OF THE STATEMENT OF COMPUTATION OF TOTAL INCOME AND TAX FILED ALONG WITH THE RETURN. EXHIBIT P5 A TRUE COPY OF THE COVERING LETTER AS ACKNOWLEDGED BY INCOME TAX OFFICER CONTAINING ENDORSEMENT OF RECEIPT OF RETURN FILED ON 13.11.2014. EXHIBIT P6 A TRUE COPY OF THE PETITION UNDER SECTION 119(2)(B) OF INCOME TAX ACT FILED BY THE PETITIONER FOR CONDONATION OF DELAY IN FILING THE RETURN. EXHIBIT P7 A TRUE COPY OF THE CIRCULAR NO.9/2015 ISSUED BY THE 2ND RESPONDENT. EXHIBIT P8 A TRUE COPY OF THE ORDER C.NO.HQ/119(2)(B)/CIT/2015-16 DATED 22.1.2016. "