T.V. HAMEED Vs. UNION OF INDIA

JUDGEMENT

(1.) The writ petitioners were the co-owners of a building leased out to the State Bank of Travancore, Calicut during the period 1998 to 2002 and are aggrieved by the orders passed by the Commissioner of Income Tax, Calicut by Exts. P1 and P2. The facts leading to the present dispute is that the petitioners with respect to the assessment years 1998-99 to 2001-02 (total 4 in number) failed to file returns of the income accrued on leasing out the premises to State Bank of Travancore. The returns were filed belated in the year 2005 and was later supported by an application for condonation of delay under section 190(2)(b) of the Income Tax Act (for short Income Tax Act) in the year 2006, after the expiry of about an year, from the date of filing of return of income. The petitioners contend that all of them were abroad and one another co-owner residing in India was managing the affairs of the building. They further contend that the said person who was managing their affairs fell sick in the year 2002 and after prolonged illness succumbed to death in the year 2004. The application for condonation of delay is not produced in the instant proceedings. However, the counsel for the petitioners refers to Ext. P7 to buttress his arguments regarding the reasons stated for condonation of delay and acceptance of returns. Ext. P1 was the order by which the plea of the petitioners were rejected and though a review was not provided, when the petitioners insisted for a personal hearing, in compliance with the principles of natural-justice the Commissioner thought it fit to hear the petitioners and passed Ext. P2 order again rejecting the claim. The counsel for the petitioners relying on Exts. P4, P5 and P6 would contend that they were issued with the same only on 28.2.2004 long after the assessment years and hence they were unable to file the returns and seek for refund of the amounts deducted from them as Tax Deducted at Source (TDS). Exts. P4, P5 and P6, I am afraid, are not TDS certificates and on being confronted with the same the petitioners counsel sought for time to produce the TDS certificates issued by the Bank. The petitioners counsel in all fairness produced the TDS certificate and has handed over the same across the Bar and I find that the same has been issued at the end of the respective assessment years. It cannot also be otherwise since the lessee of the said building was an associate bank of State Bank of India viz., State Bank of Travancore. The contention that TDS forms were not issued at the proper time, on the close of the assessment year therefore fails and the contention made by the revenue in that context appears to be correct. What remains is to examine Whether under section 119(2)(b), the petitioners were entitled to the reliefs sought for. Section 119(2)(b) speaks of the powers of the Board (at the relevant time delegated to the Commissioner) by which genuine hardship can be avoided in any case or class of cases, to admit an application for claim for any exemption, deduction, refund or any other relief after expiry of the period specified by or under the Act. The counsel for the petitioner would place heavy reliance on the interpretation given to the said section by this Court reported in Pala Marketing Co.-op.Society Ltd. v. Union of India, 2009 311 ITR 177 . Interpreting Section 119(2)(b) this Court held Section 119(2)(b) is not just an incorporation of section 5 of the Limitation Act and it contemplates wider powers conferred on the Board to avoid genuine hardship to the assessee in such cases which the Board considers desirable or expedient. This Court has made it clear that what has to be considered is the genuine hardship of the party, no matter whatever the delay is irrespective of whether there is a meticulous explanation. I am in respectful agreement with the above proposition but however, going to the facts of the above case what has to be considered is the hardship projected by the petitioners and the genuineness of the same. As relied on by the petitioner Ext. P7 enumerates three reasons to elaborate the hardship to the petitioners in support of the application for condoning delay, which are extracted below:-