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TMI Blog2018 (1) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... isbelieve the case of the petitioner that the default was due to the circumstances beyond his control. Thus, both the conditions (i) and (ii) of clause (c) of subsection (2) of section 119 of the said Act were fulfilled in the facts of the case. Considering the findings recorded, the Board has not considered the question whether it is desirable or expedient to relax the requirement for avoiding genuine hardship. For this limited purpose, the application will have to be remanded to the Board (first respondent) for reconsideration. - WRIT PETITION NO. 8022 OF 2012 - - - Dated:- 8-12-2017 - A.S.OKA AND A.K. MENON, JJ. Mr. Mihir Naniwadekar with Mr. Rohan Deshpande for the petitioner Mr. Sham V. Walve for the respondents. ORAL JUDGMENT: (Per A.S.Oka, J.) By this petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the order dated 18th April 2012 passed by the Under Secretary (ITA 1) on application made by the petitioner under sub section (2) of section 119 of the Income Tax Act, 1961 (for short the said Act ). This petition pertains to the assessment year 2007 08. The petitioner filed return of income electronicall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in all Gujarat Police Stations asking general public to come forward and notify if Kevalchand is seen and found by anybody. Whenever, any information was received we tried to contact the concerned person but all these efforts proved unsuccessful. Ultimately we received death certificate of my beloved brother Kevalchand in first week of Nov 2007. We continued our efforts to find his belongs/ his remains till river dried in Jan/ Feb 08. Due to this unfortunate accident our entire family were in state of shock and till date we have not been able to find him, his belongs or his remains. This was a calamity on our family, as the responsible person in the family I had to devote my maximum time and energy in search of my elder brother Kevalchand and bring back life of my nephew and my sister in law to normalcy. 3. As I was engrossed in persist of this sad affair, I could not give attention to other matters. The completing and handing over of books of accounts for purpose of tax audit was delayed and reprimanded or back burner and remained to be done and the audit u/s 44AB could be done and certificate could be obtained only on 20/02/2008. As a result the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He submitted that requirement of section 80AC is to file a return under sub section (1) of section 139 within the dates stipulated therein. He submitted that there is a power vested in the Board to relax any such requirement subject to conditions specified in subclauses (i) and (ii) of clause (c) of sub section (2) of section 119 of the said Act provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. He submitted that both the conditions in sub clauses (i) and (ii) were satisfied in the facts of the case. He submitted that the return was filed immediately after audit under section 44AB was carried out and, thus, the return was filed as expeditiously as possible. 4. The learned counsel appearing for the respondents opposed the petition. He submitted that by exercise of power under clause (c) sub section (2) of section 119, the obligation under section 80AC cannot be dispensed with. Secondly, he urged that clause (c) does not permit the Board to relax the conditions incorporated in the statute. He submitted that in the facts of the case, nothing prevented the petitioner from filing return within the stipul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cified in such provision for claiming deduction thereunder, subject to the following conditions, namely : (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee ; and (ii) the assessee had complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed : Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. 6. In this case, the petitioner claimed deduction under section 80IB which is subject to the provisions of section 80AC. Section 80AC of the said Act reads thus: Section 80AC Deduction not to be allowed unless return furnished. Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80 IA or section 80 IAB or section 80 IB or section 80 IC or section 80 ID or section 80 IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch requirement before the completion of assessment in relation to the previous year in which such deduction is claimed. As far as the second condition is concerned, the date of assessment order is 31st December 2009. It records that the return was filed by the petitioner electronically on 26th February 2008. Hence, the said condition is complied with. 8. Once we find that there was a power vested in the Board to relax the requirements for claiming deduction under section 80AC the question is whether the petitioner has established that the default in complying with the requirement was due to the circumstances beyond the control of the petitioner. 9. We have carefully perused the application made by the petitioner. We have already quoted the paragraphs 2 and 3 of the said application. It is noted that the car by which the petitioner's elder brother was travelling was swept away in a river due to flood. The incident happened on 25th September 2007. The last date for filing the return was 31st October 2007. He has stated that though the driver and one more person could be rescued, no other person could be rescued. The petitioner had to rush the spot where search operation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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