Ming Sheng Xuan Limited Company vs Principal Chief Commissioner Of ...
2021 Latest Caselaw 858 Cal

     44
03.02.2021
 Ct. No.23
     pg.
                      IN THE HIGH COURT AT CALCUTTA
                     CONSTITUTIONAL WRIT JURISDICTION
                              APPELLATE SIDE
                           (Via Video Conference)

                                 WPA 748 of 2021

                       Ming Sheng Xuan Limited Company
                                        Vs.
                   Principal Chief Commissioner of Income Tax
                          (International Taxation) & Ors.


                    Mr. Abhratosh Majumdar, Sr. Advocate
                    Mr. Avra Mazumder
                               ... For the petitioner

                    Mr. Dhiraj Trivedi
                    Mr. Radhamohan Ray
                                ... For the Income Tax Authorities


                    The petitioner made two separate applications

             under Section 119(2)(b) of the Income Tax Act, 1961

             (hereinafter referred to as the "said Act") for condoning the

             delay and accepting the return for the assessment years

             2015-16 and 2016-17. The petitioner says that the return

             for the assessment year 2016-17 has been accepted by

             condoning the delay. However, the delay in filing the return

             for the assessment year 2015-16 has not been condoned

             and, as such, the petitioner's return has not been

             accepted. The petitioner further says that the authorities

             ought to have considered the petitioner's case in a more

             lenient and justice-oriented manner instead of a highly

             pedantic approach by refusing to condone the delay and

             accept the return. The petitioner also says that the basic

             object of Section 119(2)(b) of the said Act will be frustrated

             if a stringent view is taken by the authorities. The
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petitioner says that since the order passed under the

provision of Section 119(2)(b) does not come within the

ambit of the orders specified in Section 245 of the said Act,

the said order is also not appealable. The petitioner, as

such, has approached this Court invoking the writ

jurisdiction. The petitioner says that the authorities may be

directed    to   consider   the   petitioner's   application   for

condoning the delay and accepting the return for the

assessment year 2015-16 in a lenient and justice-oriented

approach.

        The petitioner relies upon the judgments delivered

in Bombay Mercantile Co-op. Bank Ltd. v. Central

Board of Direct Taxes, reported in [2010] 195 Taxman

106 (Bombay) and Cosme Matias Menezes (P.) Ltd. v.

Commissioner of Income-tax, Goa, reported in [2015] 60

taxmann.com 233 (Bombay) in support of its argument.

        On behalf of the respondents, it is submitted that

the petitioner has pleaded ignorance of law as the main

cause of delay in filing the return. This contention is the

sheet-anchor for the petitioner's prayer to condone the

delay. The ignorance of law, according to the respondents,

cannot be a ground for condoning the delay in filing the

return. The respondents pray for dismissal of the writ

petition.

After considering the submissions made on behalf

of the parties and the materials on record, I find that the

ratio of the two judgments cited by the petitioner are

applicable in the instant case.

In the facts and circumstances, I am of the view

that the department ought to have taken a justice-oriented

approach instead of taking a highly pedantic approach in

refusing to condone the delay on the part of the petitioner

in filing the return for the assessment year 2015-16. The

order dated 25th August, 2020 passed by the Principal

Chief Commissioner of Income Tax (International Taxation),

being the respondent no.1, in respect of the assessment

year 2015-16 is set aside.

The Principal Chief Commissioner of Income Tax

(International Taxation), being the respondent no.1, is

directed to reconsider the petitioner's application made for

condoning the delay and accepting the return for the

assessment year 2015-16. The petitioner should

communicate this order to the Principal Chief

Commissioner of Income Tax (International Taxation),

immediately. The Principal Chief Commissioner of Income

Tax (International Taxation), being the respondent no.1,

should decide the matter within a period of two months

from the date of being approached.

Needless to mention, I have not gone into the

merits of the matter, save and except to the extent as

recorded hereinabove which is only for the purpose of

deciding the instant writ petition.

Nothing further remains to be adjudicated in this

writ petition. The same is disposed of accordingly without

any order as to costs.

Since I have not called for any affidavits, allegations

made in the writ petition are deemed to have not been

admitted.

Urgent photostat certified copy of this order, if

applied for, is to be given to the parties, upon compliance

of necessary formalities.

(Arindam Mukherjee, J.)