ANTONY Vs. PRINCIPAL COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The petitioner has approached this Court being aggrieved by the fact that an application filed by the petitioner under Sec. 119(2)(b) of the Income Tax Act, 1961 (hereinafter referred to as the 'Act') for condonation of delay in filing returns and claiming refund for the Assessment Year 2010-11 was rejected by the Principal Commissioner of Income Tax through Ext.P6 order dtd. 12/4/2021. The petitioner seeks a mandamus commanding the respondents to process the return of income filed by the petitioner for the Assessment Year 2010-2011 and grant to the petitioner the refund of Rs.1,33,470.00 claimed by him.

(2.) The brief facts of the case show that the petitioner, who is an assessee under the Act, did not file his return of income for the Assessment Year 2010-11 within the time specified under Sec. 139 of the Act. The due date for filing of return, as far as the petitioner is concerned, for the Assessment Year 2010-11 was 31/7/2010 and the last date on which he could have filed his return of income for that year was 31/3/2012. The petitioner filed his return of income only on 13/7/2012. It is the case of the petitioner that the delay in filing the return for the Assessment Year 2010-11 was on account of the fact that the petitioner was suffering from certain ailments and was hospitalized in connection with treatment for a period about four months from 25/2/2012. It is the case of the petitioner that since the return was not processed and refund was not granted for several years, the petitioner made an enquiry in the month of June 2020 and thereafter filed W.P.(C)No.20788/2020 which was disposed of by Ext.P3 judgment dtd. 14/12/2020 as under:-

(3.) The application for condonation and report submitted by the jurisdictional Assessing Officer have been perused and found that the assessee has submitted this application for condonation of delay in filing of return for AY 2010-11 after 9 years. As per CBDT Circular No.9/2015, no condonation application for claim of refund can be entertained beyond six years from the end of the relevant assessment year. The conditions specified in the CBDT Circular No.9/2015 are not fulfilled in the instant case and hence, the petition of the applicant is hereby REJECTED." A reading of Ext.P6 order shows that the application of the petitioner was rejected as it was found that the application filed by the petitioner is not within a period of six years from the end of the relevant assessment year. The provisions of a Circular issued by the Central Board of Direct Taxes as Circular No.9/2015 dtd. 9/6/2015 were relied on by the 1st respondent while issuing Ext.P6 order. 3. The learned counsel for the petitioner refers to the facts and circumstances of the case and states that, in the light of the judgments of this Court in Pala Marketing Co-op. Socy. Ltd. v. Union of India & Ors.; 2007 SCC OnLine Ker 159 and M. Rajan v. Principal Commissioner of Income Tax; 2016 SCC OnLine Ker 25855 and that of the Bombay High Court in Yash Society v. The Commissioner of Income Tax (Exemption); 2018 SCC OnLine Bom 4838 and that of the Madhya Pradesh High Court in Colonel Ashwani Kumar Ram Singh (Retd.) v. Principal Commissioner of Income Tax (Judgment in W.P. (C)No.8858/2019), Ext.P6 is liable to be quashed and even if the application was filed beyond the period of six years as specified in the Circular issued by the Central Board of Direct Taxes and referred to in Ext.P6 order, it is open to this Court to exercise jurisdiction under Article 226 of the Constitution of India and to condone the delay, in the facts and circumstances of the case.