Income Tax Act, 1961 – Sections 143(1) and 264 – Filing of revision application – Rejection on ground of limitation – Petitioner is a company engaged in business of manufacturing and finishing of textiles, filed its return of income for AY 2015-16 declaring total loss including subsidies received under Technology Upgradation Fund Scheme for Textile Industries – AO processed return under Section 143(1) of the Act – On basis of order passed by Tribunal for AY 2012-13, Petitioner filed revision application under Section 264 of the Act to revise return loss for AY 2015-16 and treat subsidies as capital receipt instead of revenue receipt as erroneously offered in return of income – Respondent/Commissioner rejected application on ground of limitation – Whether impugned order passed by Respondent rejecting revision application filed by Petitioner under Section 264 of the Act is sustainable – HELD – It is not in dispute that as per decision of Supreme Court in case of Chaphalkar Brothers, subsidies received by Petitioner would be capital receipt and not revenue receipt – Said aspect is also considered by Tribunal in case of Petitioner while allowing additional ground raised by Petitioner for AY 2012-13 – Petitioner has field revision application within five months from date of receipt of order of Tribunal – As per proviso to Section 264(3) of the Act, Commissioner ought to have considered sufficient cause for delay in preferring application, as there was no negligence on part of Petitioner – Impugned order passed by Respondent is quashed and set aside – Delay in preferring revision application is ordered to be condoned – Matter is remanded back to Respondent to decide same on merits after giving opportunity of hearing to Petitioner – Petition allowed
2024-VIL-115-GUJ-DT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14230 of 2020
Date: 29.04.2024
JINDAL WORLDWIDE LIMITED
Vs
THE PRINCIPAL COMMISSIONER OF INCOME TAX 2, AHMEDABAD
For the Petitioner No. 1: MR B S SOPARKAR (6851)
For the Respondent No. 1: MR. VARUN K. PATEL (3802)
CORAM
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
ORAL JUDGMENT
(PER: HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned advocate Mr. Varun K. Patel with learned advocate Mr. Dev Patel for the respondent.
2. Rule, returnable forthwith. Learned advocate Mr. Dev Patel waives service of notice of rule for and on behalf of the respondent.
3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 20th March, 2020 passed under Section 264 of the Income Tax Act, 1961 (for short ‘the Act’).
4. The brief facts of the case are as under:
4.1. The petitioner is a limited Company incorporated under the provisions of the Companies Act, 1956 and is engaged in business of weaving, manufacturing and finishing of textiles. The petitioner is also engaged in business of manufacturing and dealing in Denim and other textile activities.
4.2. For the Assessment Year 2015-16, the petitioner filed return of income on 31.10.2015 declaring total loss of Rs.8,54,09,913/- including the Interest Subsidy of Rs.10,83,16,142/- received by the petitioner under Technology Upgradation Fund Scheme (TUFS) for Textile and Jute Industries, State Interest subsidy of Rs.2,27,09,183/- and Electricity Subsidy of Rs.1,71,06,082/-.
4.3. According to the petitioner the aforesaid subsidies were erroneously treated as revenue receipts instead of capital receipts and return of the income was processed under Section 143(1) of the Act on 17.01.2017 without framing any assessment under Section 143(3) and intimation to that effect issued.
4.4. It is the case of the petitioner that for Assessment Year 2012-13, the petitioner had received similar subsidies and the same were treated as revenue receipts instead of capital receipts and during the appeal before the Income Tax Appellate Tribunal, additional ground was taken by the petitioner and the same was allowed by the Tribunal while disposing of the appeal being ITA No.1843/Ahd/ 2016 by order dated 20th February, 2019. Therefore, according to the petitioner, the issue of nature of subsidy was judicially decided that it would be capital receipt and not revenue receipt.
4.5. The petitioner therefore, on the basis of the aforesaid order passed by the Tribunal filed Revision Application under Section 264 of the Act on 01.07.2019 to revise the return loss for Assessment Year 2015-16 and treat the various subsidies as capital receipt instead of revenue receipt as erroneously offered in return of income.
4.6. The petitioner also requested the respondents to condone the delay in filing of the revision application as per provisions of Section 264(3) of the Act.
4.7. However, the respondent-Principal Commissioner of Income Tax by the impugned order dated 20th March, 2020 rejected the revision application of the petitioner on the ground of limitation by not entertaining the application to condone the delay in preferring the revision application. The petitioner being aggrieved has preferred this petition.
5.1. Learned advocate Mr. B.S. Soparkar for the petitioner submitted that in view of the order passed by the Tribunal, it is not in dispute that the subsidies received by the petitioner on various grounds as stated hereinabove are capital receipt and not revenue receipt and therefore the petitioner has filed the revision application for revising the return by considering such subsidies offered as revenue receipt erroneously instead of capital receipt by reducing the loss to that extent.
5.2. It was submitted that the respondent without considering the provisio to Section 264(3) of the Act, has refused to condone the delay in spite of there are good reasons for the same. It was submitted that the petitioner could not have revised the return of the Assessment Year 2015-16 as a time to revise return work already has expired on 30th March, 2017 whereas, judgment of the Hon’ble Supreme Court in case of Chaphalkar Brothers Pune reported in [2017] 88 taxmann.com 178 (SC) was pronounced on 17.12.2017 wherein, it was decided on question of nature of subsidy being capital in nature.
5.3. Learned advocate Mr. B.S. Soparkar referred to the decision of the Tribunal for the assessment year 2012-13 in case of the petitioner by which the issue of nature of the subsidy was held to be capital receipt. Learned advocate Mr. B.S. Soparkar invited the attention of the Court to the reasons assigned by the respondent for rejecting the revision application on ground of delay and pointed out that the decision of the Hon’ble Mumbai High Court in case of Shyam Anant Solanki Versus PCIT reported in 104 Taxmann.com 108 (2019) (Mumbai) relied upon by the respondent would not be applicable in the facts of the case because in the facts of the present case, there is no deliberate delay caused by the petitioner for not preferring the revision application during the one year from the end of the assessment year as the judgment of the Hon’ble Supreme Court and Tribunal were not available within the period of one year and therefore, the petitioner could not file revision application.
5.4. Learned advocate Mr. B.S. Soparkar also referred to and relied upon the recent decision of the Hon’ble Bombay High Court in case of Hindalco Industries Ltd. versus Union of India reported in [2024[ 158 taxmann.com 485(Bombay) wherein, the Hon’ble Bombay High Court has held that while considering the question of condonation of delay under Section 264 of the Act, the Commissioner should not take a pedantic approach but should be liberal and words “sufficient cause” should be given a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona-fide is imputable to the assesse. It was therefore submitted that in the facts of the case, the delay caused in preferring the revision application under Section 264 of the Act ought to have been condoned by the Commissioner and allow the petitioner to make submissions on merits of the matter.
6.1. On the other hand, learned advocate Mr. Varun Patel for the respondent submitted that the CIT (Appeals) is bound by the provisions of the Act and has rightly not condoned the delay as admittedly the revision application filed by the petitioner is beyond the period of one year as prescribed under the provisions of Section 264(3) of the Act.
6.2. It was submitted that the petitioner has not given any reason much less any cogent reason for preferring the revision application late after more than three years and accordingly, no interference is called for in the impugned order passed by the respondent- authority.
6.3. It was submitted that as per Subsection (3) of Section 264 of the Act, the assessee has to make an application within one year from the date on which the order in question was communicated or the date on which otherwise came to know of it which ever is earlier. However, in the facts of the case, time to file application under Section 264 had already expired on 16.01.2018 because the intimation under Section 143(1) of the Act was communicated to the petitioner on 17.01.2017 and when the petitioner filed the revision application on 01.07.2019, it was admittedly beyond the time limit prescribed under the Act.
6.4. It was therefore submitted that the petition being devoid of any merit is liable to be dismissed.
7. Having heard the learned advocates for the respective parties and considering the facts of the case, it is not in dispute that as per the decision of the Hon’ble Supreme Court in case of Chaphalkar Brothers (Supra), the subsidies received by the petitioner would be capital receipt and not revenue receipt. This aspect is also considered by the Tribunal in the case of the petitioner while allowing the additional ground raised by the petitioner for Assessment Year 2012-13.
8. The order of the Tribunal was pronounced on 20th February, 2019 and the petitioner has field the Revision Application on 01.07.2019 i.e. within five months from the date of receipt of the order of the Tribunal. In such circumstances, as held by the Bombay High Court in case of Hindalco Industries Ltd. (Supra), the Commissioner should not have taken a pedantic approach but the approach ought to have been liberal and as per the provisio to Section 264(3) of the Act, he ought to have considered the sufficient cause for delay in preferring the application as there was no negligence on the part of the petitioner nor there was any bona-fide which can be imputable to the petitioner and revisional power ought to have been exercised to advance the substantial justice. The Hon’ble Bombay High Court in the facts of the case before it in case of Hindalco Industries Ltd. (Supra) has observed as under:
“6. It is also note worthy to mention that under section 264 of the Act, the Commissioner is empowered either on his own motion or on an application made by assessee to call for the record of any proceedings under the Act and pass such order thereon not being an order prejudicial to assessee and this power has been conferred upon the Commissioner in order to enable him to give relief to the assessee in cases of over-assessment. As observed by the Hon'ble Gujarat High Court in Digvijay Cement Co. Ltd. v. CIT [1994] 75 Taxman 355/210 ITR 797, the power conferred on commissioner is wider in terms. The revisional power is coupled with a duty to exercise it in the interests of justice of the parties and the revisional authority must act according to the rules of reason and justice.
7. It will be useful to reproduce paragraphs 9 and 10 of an order of this court in Octra Health (P.) Ltd. v. Addl. CIT [Writ Petition No. 15544 of 2023, Dated 19-12-2023], which read as under:
"9. While considering the genuine hardship, the PCCIT was not expected to consider a solitary ground as to whether the assessee was prevented by any substantial cause from filing the corrections within a due time. Other factors also ought to have been taken into account. The phrase "genuine hardship" used in Section 119(2)(6) of the Act should have been construed liberally. The Legislature has conferred the power to condone the delay to enable the authorities to do substantial justice to the parties by disposing the matters on merits. The expression 'genuine' has received a liberal meaning in view of the law laid down by the Apex Court and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant, applying for condonation of delay, does not stand to benefit by lodging erroneous returns. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate action. There is no presumption that a delay in correcting an error or responding to a notice of invalid return received under section 139(9) of the Act is occasioned deliberately or on account of culpable negligence or on account of mala-fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. The approach of authority should be justice-oriented so as to advance cause of justice. If the case of an applicant is genuine, mere delay should not defeat the claim. We find support for this view in Sitaldas K. Motwani v. Director General of Income-tax (International Taxation), New Delhi [2010 (87) taxman.com 44 (Bombay)], relied upon by Mr. Walve, where paragraph nos. 13 to 17 read as under:
"13. Having heard both the parties, we must observe that while considering the genuine hardship, Respondent No.1 was not expected to consider a solitary ground so as to whether the petitioner was prevented by any substantial cause from filing return within due time. Other factors detailed hereinbelow ought to have been taken into account.
14. The Apex Court, in the case of B.M. Malani v. CIT [2008] 10 SCC 617, has explained the term "genuine" in following words:
"16. The term 'genuine' as per the New Collins Concise English Dictionary is defined as under: 'Genuine' means not fake or counterfeit, real, not pretending (not bogus or merely a ruse).
17. **
18. The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well-known principle, namely, a person cannot take advantage of his own wrong, may also have to be borne in mind..." (p. 624).
The Gujarat High Court in the case of Gujarat Electric Co. Ltd. (supra) was pleased to hold as under: " '... The Board was not justified in rejecting the claim for refund on the ground that a case of genuine hardship was not made out by the petitioner and delay in claiming the relief was not satisfactorily explained, more particularly when the returns could not be filed in time due to the ill health of the officer who was looking after the taxation matters of the petitioner..." (p. 737).
The Madras High Court in the case of R. Seshammal (P.) Ltd. (supra), was pleased to observe as under:
"This is hardly the manner in which the State is expected to deal with the citizens, who in their anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, even though the monies were not actually required to be paid by them and thereafter, seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the authorities concerned. The State is not entitled to plead the hypertechnical plea of limitation in such a situation to avoid return of the amounts. Section 119 of the Act vests ample power in the Board to render justice in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund" (p.187)
15. The phrase "genuine hardship" used in section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12-10-1993. The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matters on merit. The expression "genuine" has received a liberal meaning in view of the law laid down by the Apex Court referred to hereinabove and while considering this aspect, the authorities are expected to bare in mind that ordinarily the applicant, applying for condonation of delay does not stand to benefit by lodging its claim late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. The approach of the authorities should be justice oriented so as to advance cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund.
16. Whether the refund claim is correct and genuine, the authority must satisfy itself that the applicant has a prima facie correct and genuine claim, does not mean that the authority should examine the merits of the refund claim closely and come to a conclusion that the applicant's claim is bound to succeed. This would amount to prejudging the case on merits. All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. At this stage, the authority is not expected to go deep into the niceties of law. While determining whether refund claim is correct and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.
17. Having said so, turning to the facts of the matter giving rise to the present petition, we are satisfied that respondent No. 1 did not consider the prayer for condonation of delay in its proper perspective. As such, it needs consideration afresh."
10. This was followed by this Court in Artist Tree (P.) Ltd. v. Central Board of Direct Taxes [2014] 52 taxmann.com 152 (Bombay.), relied upon by Mr. Walve, where paragraph nos. 19, 21 and 23 read as under
"19. The circumstance that the accounts were duly audited way back on 14 September 1997, is not a circumstance that can be held against the petitioner. This circumstance, 8 pton the contrary adds force to the explanation furnished by the petitioner that the delay in filing of returns was only on account of misplacement or the TDS Certificates, which the petitioner was advised, has to be necessarily filed alongwith the Return of Income in view of the provisions contained in Section 139 of the said Act read alongwith Income-tax Rules, 1962 and in particular the report in the prescribed Forms of Return of Income then in vogue which required an assessee to attach the TDS Certificates for the refund being claimed. The explanation furnished is that on account of shifting of registered office, it is possible that TDS Certificates which may have been addressed to the earlier office, got misplaced. There is nothing counterfeit or bogus in the explanation offered. It cannot be said that the petitioner has obtained any undue advantage out of delay in filing of Income-tax Returns. As observed in case of Sitaldas K. Motwani (supra), there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. It cannot be said that in this case the petitioner has benefited by resorting to delay. In any case when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to prevail without in any manner doing violence to the language of the Act.
21. We find that the impugned order dated 16 May 2006 of the CBDT also seeks to reject the application for condonation of delay on account of delay from the date of filing the Return of Income, i.e., 14 September 1999 upto 30 April 2002. This was not the ground mentioned in notice dated February 2006 given to the petitioner by the CBDT for rejecting the application for condonation of delay. Thus the petitioner had no occasion to meet the same. It appears to be an afterthought. However, as pointed out in paragraph 20 hereinabove, the delay in filing of an application if not coupled with some rights being created in favour of others, should not by itself lead to rejection of the application. This is of course upon the Court being satisfied that there were good and sufficient reasons for the delay on the part of the applicant.
23. In light of the aforesaid discussion, we are of the opinion that an acceptable explanation was offered by the petitioner and a case of genuine hardship was made out. The refusal by the CBDT to condone the delay was a result of adoption of an unduly restrictive approach. The CBDT appears to have proceeded on the basis that the delay was deliberate, when from explanation offered by the petitioner, it is clear that the delay was neither deliberate, nor on account of culpable negligence or any mala fides. Therefore, the impugned order dated 16 May 2006 made by the CBDT refusing to condone the delay in filing the Return of Income for the Assessment Year 1997-98 is liable to set aside. Consistent with the provisions of Section 119(2)(6) of the said Act, the concerned I.T.O. or the Assessing Officer would have to consider the Return of Income and deal with the same on merits and in accordance with law."
8. It will be also useful to reproduce paragraphs 11 and 12 of EBR Enterprises v. Union of India [2018] 89 taxmann.com 194/2017(12) TMI 425, which read as under:
"11. Coming back to the impugned Order, the Commissioner has observed there are binding decisions which require each and every day's delay to be explained. The Commissioner has made a reference to a decision of the Apex Court in the case of Collector, Land Acquisition v. Mst. Katiji & Others. However, the Commissioner has ignored the ratio of the said decision. In paragraph 4 of the said decision, the Apex Court has held thus:
"4. And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk."
12. In view of the law laid down by the Apex Court, it was not necessary for the petitioner to have explained each and every day's delay. On the contrary, the Apex Court held that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice is to be preferred. The Apex Court also held there is no presumption that delay is intentional and deliberate, as normally a litigant does not stand to benefit by resorting to delay. As stated earlier, in the application dated 20th March, 2014 seeking invocation of the power under section 264, the delay has been adequately explained."
9. Therefore, the commissioner having been conferred the power to condone the delay to do substantial justice to parties by disposing the matter on merits should have, considering the facts and circumstances of the case, in particular that it took a long time for the CIT(A) to dispose petitioner's appeal, ought to have condoned the delay.
10. On the second part of the impugned order that intimation under section 143(1) of the Act is not an assessment order, this court in Smita Rohit Gupta v. Pr. CIT [2024] 158 taxmann.com 157/| 2023] 459 ITR 369/2023 SCC online Bom 1861 held in paragraphs 6 to 10 as under:
"6. Mr. Manwani relying upon judgment of the Hon'ble Apex Court in ACIT v Rajesh Jhaveri Stock Brokers (P) Ltd. (161 taxmann 316 (SC) submitted that since Petitioner had filed returns under section 139 and that was processed under section 143(1) of the Act, that processing order will not be an order and, therefore, Respondent No. 1 was justified in not entertaining application under section 264 of the Act.
7. In our view, judgment of the Hon'ble Apex Court in Rajesh Jhaveri (supra) will not be applicable to the facts and circumstances of the case because that was a case where the Court was considering the provisions of Section 147 for reopening the assessment. The Court was considering whether the question of change of opinion would arise when an order under section 143(1) (a) of the Act had been passed.
8. The provisions of Section 264 and the power available to the Commissioner to exercise under section 264 of the Act came up for consideration before the Division Bench of this Court in Hindustan Diamond Company Pvt. Ltd. v. CIT [(2003) 175 Taxation 91 (Bom)]. The Division Bench was pleased to observe that exercise of power under section 264 was not subject to the power of the Assessing Officer to make adjustment under section 143(1) of the Act. The Court held that power of the Commissioner under section 264 is rather wide and even the errors committed could be rectified. Paragraph 6 of the Hindustan Diamond Company Pvt. Ltd. (supra) reads as under:
"6. Having heard the Counsel on both sides, we are of the opinion that the Commissioner was not justified in rejecting the revision application of the assessee. As rightly contended by Mr.Inamdar, Section 264 confers wide jurisdiction on the Commissioner. Proceedings under section 264 are intended to meet the situation faced by an aggrieved assessee who is unable to approach the appellate authority for relief and has no other alternate remedy available under the Act. In the light of the decision of the Apex Court in the case of Bharat Earth Movers (supra), the provision for Leave Encashment being a current liability the assessee is entitled for deduction of that amount. The Assessing Officer had accepted the return, ignoring the request of the assessee for deduction of the above amount. Therefore, the relief which was not granted by the Assessing Officer could be granted by the Commissioner under section 264. Before allowing such deduction if any further enquiry was required to be done, the Commissioner could have either himself enquired or directed the Assessing Officer to do the needful. However, the Commissioner has dave ithe herise enquir under section 264 besasse of amendment to section 143(1) by Finance Act, 1999. Powers of the Assessing Officer to make prima facie adjustments under section 143(1), done away with by Finance Act, 1999 (with effect from 1st June, 1999) does not in any way effect the right of the Commissioner under section 265 of the Act to grant relief to the assessee if available to the assessee as per the decision of the Apex Court. Exercise of powers under section 264 is not subject to the power of the Assessing Officer to make adjustments under section 143(1) of the Income-tax Act. Therefore, relief can be granted to the assessee under section 264 even if the power of adjustment under section 143(1) is taken away from the Assessing Officer." (emphasis supplied)
9. Section 264 of the Act also came up for consideration before the Hon'ble Delhi High Court in Vijay Gupta v CIT Delhi-III [2016] 68 taxmann.com 131 (Delhi) where paragraph 35 reads as under:
"35. From the various judicial pronouncements, it is settled that the powers conferred under section 264 of the Act are very wide. The Commissioner is bound to apply his mind to the question whether the petitioner was taxable on that income. Since section 264 uses the expression "any order", it would imply that the section does not limit the power to correct errors committed by the subordinate authorities but could even be exercised where errors are committed by assessees. It would even cover situations where the assessee because of an error has not put forth a legitimate claim at the time of filing the return and the error is subsequently discovered and is raised for the first time in an application under section 264." (emphasis supplied).”
9. Adopting the above reasoning and considering the facts of the case, the impugned order passed by dated 20th March, 2020 passed by the respondent under Section 264 of the Act is hereby quashed and set aside and the delay in preferring the revision application is ordered to be condoned and the matter is remanded back to the respondent to decide the same on merits after giving opportunity of hearing to the petitioner. Rule is made absolute to the aforesaid extent. No orders as to cost.
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