Case: Shayona Pulp Conversion Mills Private Limited Vs. Commissioner of Income Tax and Others

section 239 of the Act the limitation period is given which is one year from the last date of the assessment year and revised returns were also required to be filed within one year. When such period of limitation is prescribed under the Act, the application was filed on 12-5-2009, many years after the expiry of the period prescribed for filing the claim.7. The learned counsel for the petitioner took this Court through the provision of Section 119(2)(b) of the Income Tax Act and submitted that when the Board has the power of issuing general or special order to authorise to admit application or claim for such relief, after the period specified by or under the Act, the Commissioner ought to have exercised such power and ought to have condoned the delay. It is already observed that the Commissioner has touched the merits of the claim also by referring some Circulars and instructions issued by the Board and has held that the benefit given under those Circulars and the instructions cannot be given in the present matter. Further, the reason given for the delay also is not acceptable. On the previous occasion also there was certificate of the C.A. and admittedly the petitioner had shown the aforesaid amount like remission in principal amount of the term loan in profit and loss account and the book profit of more than Rs. 64 lakh was shown. If the business loss can be carried forward, there was the opportunity for the petitioner if such entitlement continues to get the benefit of that provision in subsequent year also. But it appears that in the first return filed the book profit was shown and on that basis self assessment of the income tax was made. Though the merits cannot be considered in detail while deciding application for condonation of delay these things need to be considered to ascertain as to whether there is arguable prima facie case in favour of the applicant. That point is not considered in detail and there is no need to do it in the present proceeding also.8. The provision section 119(2)(b) runs as under :"119. Instructions to subordinate authorities. (1) . . . .(2) Without prejudice to the generality of the foregoing power, --(a) . . . .(b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case of 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."9. The order issued by the Board by exercising this power dated 26-20-1993 is on the record and it shows that it is applicable to the excess tax deducted at source, collected at source and payment of advance tax made under the provisions of Chapters XVII-B, XVII-BB and XVII-C respectively and the amount of refund does not exceed Rs. one lakh for any assessment year. Thus, the self assessment was not included in this order issued by the Board. It appears that subsequently on 9-6-2015 order came to be issued by the Board in which the category of self assessment tax was included in the order which can be made by the Board under section 119(2)(b) of the Income Tax Act. Thus, the order came in existence subsequently and the Commissioner had no power to condone delay on the date when the order was made on the application filed by the present petitioner.10. The learned counsel for the petitioner placed reliance on some observations made by the Division Bench of this Court at Principal Seat in Writ Petition No.3087/2006 (Artist Tree Pvt. Ltd. v. Central Board of Direct Taxes and Others). The application in that matter was filed on 7-4-2002 and it was the matter of tax deducted at source. Thus, the observations made in that case can be of no use in the present matter. Reliance was placed on the observations made by Punjab & Haryana High Court in the case reported as (2005) 1 RCR (Criminal) 591 (Jaswant Singh Bambha v. Central Board of Direct Taxes And Others). Reliance is also placed on the case reported as 2010 (Supp.) Bom.C.R. 196 (Sitaldas K. Motwani v. Director General of Income Tax & Ors). On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax.