HIGH COURT OF BOMBAY
Sitaldas K. Motwani
DGIT (Int'l Taxation)
Writ Petition No. 1749 of 2009December 15, 2009
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15. The phrase "genuine hardship" used in Section119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12 the October,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 malafides. 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.18. In the result, we set aside the impugned order and remit the matter back to the respondent No.1 for consideration afresh, with the direction to decide the question of hardship as well as that of correctness and genuineness of the refund claim in the light of the observations made hereinabove. All other rival contentions on merits are kept open. Rule is made absolute in terms of this order with no order as to
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