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28-06-2019, Ramupillai Kuppuraj, Section 264, 139(5), 154, HIGH COURT OF MADRAS

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5 days 19 hours ago #10045 by amit
Section - 264, 139(5), 154, 5, 80HH
Order Date - 28-06-2019
Favouring - Assessee
Appellant - Ramupillai Kuppuraj
Respondent - ITO
Justice - M.SUNDAR
Citation - 719Taxpundit141
Appeal No. - W.M.P.Nos.8269, 8272 and 11243 of 2019
Asstt. Year - 2009-10



Mr.V.Srikanth, learned counsel on record for writ petitioner and Ms.Hema Muralikrishnan, learned Senior Standing Counsel for all three respondents were before this Court.

2 Though this matter was listed under the caption 'ADJOURNED ADMISSION', respondents had filed a counter affidavit and pleadings were complete. In this scenario, with the consent of learned counsel on both sides, i.e., learned counsel on record for writ petitioner and learned Revenue Counsel, the main writ petition itself was taken up and heard out.

3 A petition under section 264 of 'Income Tax Act, 1961' ('IT Act' for brevity) filed by the writ petitioner before third respondent, admittedly beyond a period of one year from the date of assessment was dismissed by the third respondent, refusing to condone the delay. The undisputed position before this Court is that this order of third respondent dated 17.01.2019 bearing reference F.No.CIT /IT / CHE / 113(264) / 2018-19 (hereinafter referred to as 'impugned order' for brevity, clarity and convenience) does not deal with the merits of the matter. (To be noted, in the writ petition and affidavit in the prayer portion, the date of impugned order has been mentioned as 17.02.2019. This court is informed that this is a typographical error and that the correct date of the impugned order is17.01.2019). It is also not in dispute that third respondent has powers to condone the delay under proviso to sub-section (3) of section 264 of IT Act and that there is no cap in this regard. In other words, there is no restriction regarding the length of delay that can be condoned by the third respondent. As third respondent has not said anything in the impugned order on the merits of Section 264 petition / application filed by the writ petitioner, the entire writ petition assailing the impugned order made by the third respondent now turns on condonation of delay aspect of the matter.

4 Further undisputed dates and events which admittedly form part of records before third respondent (which are necessary for the disposal of the instant writ petition) are as follows :

(a) Writ petitioner is a non resident seafarer serving outside India;

(b) Relevant assessment year is 2009-10 (hereinafter 'said AY' for brevity);

(c) Writ petitioner was employed in a foreign ship which goes by the name 'Bow Kiso' flying Panamanian Flag and was under contract of employment through a company which goes by the name 'Ships India Private Limited' which is an agent of said Vessel.

(d) Undisputedly, writ petitioner was a non resident seafarer prior to said AY as well as in the subsequent assessment years. Writ petitioner's income returns excluding the income received as non resident seafarer were accepted by respondent for assessment years other than said AY and tax due thereon has also been duly paid without any delay or default.

(e) For said AY, writ petitioner filed returns reporting an income of Rs.20,24,000.00 (Rs.20.24 lakhs for brevity). This included the income received from abroad and according to writ petitioner, this is to the tune of Rs.19,84,000.00 (Rs.19.84 lakhs). It is also the case of writ petitioner that this was owing to wrong advice of the auditor.

(f) The aforesaid return for the said AY was accepted and intimation dated 23.10.2010 under Section 143(1) of T Act was sent. (To be noted, one year from this date is the time limit of filing application / petition under section 264 of IT Act and the same elapsed on 22.10.2011). However, before expiry of this one year, to be precise, on 05.08.2011, writ petitioner filed a revised return, revising his return with regard to aforesaid Rs.19.84 lakhs which was erroneously included in said AY return though according to writ petition, it is the income received from abroad.

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