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

2. The petitioner is a Private Limited Company and it had prayed for refund of excess income tax paid by it for the aforesaid assessment years. As there was the delay caused in filing the claims, the claims were filed along with applications for condonation of delay. The Commissioner of Income Tax has considered various Circulars of the Board and also the instructions. The Commissioner has held that the conditions given in the Circulars and the instructions are not fulfilled and further it is not a fit case for condonation of delay under section 119(2)(b) of the Income Tax Act. Thus, prima facie merits of the claim are also touched by the Commissioner. It cannot be disputed that for consideration of application for condonation of delay both, sufficient cause and existence of some arguable case need to be made out.3. It is the case of thethat the liability to pay income tax for the yearwas nil and there was business loss which was to be carried forward of Rs.The return of income tax was filed onand then for the assessment year 20052006 the return was filed onand carried forward loss was assessed at Rs.For both the assessment years the assessee,had paid MAT under section 115JB of the Income Tax Act through self assessment, like tax of Rs.2,72,300/for assessment yearfor assessment yearand in those returns no refund was claimed. It is the contention of thethat due to financial problems faced by it, it had applied to State Bank of India for one time settlement in respect of the outstanding loan taken for the business and the bank had considered positively the request made and relief to the extent of Rs.4,93,87,291/was given and out of that there was the remission of Rs.1,35,78,000/towards the principal amount of term loan. It is the contention that in profit and loss account the waiver of principal was duly credited but inadvertently it remained to be excluded from the computation of MAT. It is contended that if this amount was excluded, it could have shown business loss of Rs.73,34,378/for the assessment yearny had actually shown the book profit of Rs.64,53,855/for the assessment yearIt is contended that as the petitioner was entitled to carry forward the losses,for the assessment yearthe book profit under section 115JB would have been nil.4. It is the case of thethat as it was sick industry, it could not submit its application within time prescribed for rectification or filing of revised returns and the mistake was detected late and so the delay was caused. Thus, thehad prayed for refund of income tax of Rs.2,72,300/. In the order of the Commissioner it is mentioned that under the Boards Circulars and instructions the refund cannot be given as petitioner had paid MAT by self assessment and it was not a case of TDS/TCS and also the payment of advance tax. For claim of interest it is mentioned that such claim is not permissible under section 119(2)(b) of the IT Act. It is also observed that the returns of income taxfor the assessment06 were not the first time returns and the original returns were filed on05 respectively and admittedly in those returns refund was not claimed. With the previous returns there was certificate of C.A. and with the new returns certificate of another C.A. was produced by the

Reasoning: 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.