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TMI Blog2022 (5) TMI 1180X X X X Extracts X X X X X X X X Extracts X X X X ..... ication filed by the writ-applicant is hereby allowed. - R/SPECIAL CIVIL APPLICATION NO. 13536 OF 2021 - - - Dated:- 5-4-2022 - HONOURABLE MR. JUSTICE J.B.PARDIWALA AND HONOURABLE MS. JUSTICE NISHA M. THAKORE MR SN DIVATIA FOR THE PETITIONER MR MR BHATT, SENIOR ADVOCATE FOR M R BHATT CO. FOR THE RESPONDENT ORDER PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA 1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:- 10(a) To issue a writ of certiorari or in the nature of certiorari or any other appropriate writ, orders or directions quashing and setting aside the impugned order dt.17-6-2021 passed u/s.119(2) (b) of the Act [Annexure A] rejecting the application for condonation of delay in filing of Form No.10B for A.Y.2014-15 as well as the orders passed in consequence to the impugned order. (b) To issue a writ of mandamus or in the nature of mandamus or any other appropriate writ, orders or directions to the Respondent condoning the delay in filing the Form No.10B for A.Y.2014-15 and allow all consequential reliefs, allowances, deductions exemptions as permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0B for A.Y.2014-15. 3. The respondent has filed reply stating as under:- 3. At the outset, I humbly submit that the petitioner has challenged the order dated 17.06.2021 rendered by the respondent Commissioner of Income Tax (Exemptions), Ahmedabad in exercise of powers conferred under Section 119(2) (b) of the Income Tax Act, 1961 (herein after referred to as the Act ) whereby the petitioner s application for condoning the delay caused in filing the Form 10B for the Assessment Year 2014-2015 came to be rejected on the ground that the sole reason of technical problem cannot be said to be sufficient ground for condoning huge delay of six (6) years. Furthermore, the reasons of technical problem and no support from software stated by the petitioner are self serving inasmuch as the petitioner did file its audit report within time for the subsequent assessment years. I submit such delay in filing Form 10B was due to inaction and lethargic approach on part of the petitioner. The powers under Section 119(2)(b) of the Act has been exercised diligently and judiciously after providing an opportunity of hearing to the petitioner and considering the material available on record. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal dated 19/12/2018 wherein it was clearly mentioned that rectification rights has been available with the Assessing Officer, then why petitioner has not filed rectification application before the Assessing Officer, in spite of that the petitioner has reiterated the same facts on 10/07/2019. Only registration granted u/s.12AA does not confer any right of entitlement of benefit under sections 11, 12 and 13 of the Act. Form No.10B is also mandatory to claim exemptions u/s.11 and 12 of the Act. Further, audit report u/s.12A(1)(b) has to be filed by a charitable or religious trust or institutions has been granted registration u/s.12A of the Act. 4. We have heard Mr. S.N. Devetia, the learned counsel appearing for the writ-applicant and Mr. M.R. Bhatt, the learned senior counsel appearing for the revenue. 5. We should look into the position of law as regards the subject matter of this writ-application : (i) In Artist Tree Pvt. Ltd. vs. Central Board of Direct Taxes and others, (2014) 369 ITR 691 (Bombay) . The relevant paragraphs 11 to 14 and 23 of the said judgment are quoted below for ready reference: 11. The expression 'genuine hardship' came up for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits. 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 bear 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 an 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 the merits after hearing the parties. 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 a vested right in injustice being done because of a nondeliberate 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 the cause of justice. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re routinely exercised without considering its desirability and expedience to do so for avoiding genuine hardship. In the present case, however, considering special facts, we are of the opinion that the Commissioner ought to have exercised such powers. It is true that the Appellate Commissioner recorded that the petitioner did not remain present in the appellate proceedings. However that by itself would not take away the petitioner's case for genuine hardship nor contrary to what is vehemently contended before us by the counsel for the Revenue, convince us to hold that filing of revised return beyond limitation lacked bona fides. (iii) In the case of State of Jharkhand and others vs. Ambay Cements and another, (2005 Sales Tax Cases Vol.129) . The relevant extract of the said judgment is quoted from the Head Note below for ready reference: An exception or an exempting provision in a taxing statute should be construed strictly. If the condition under which an exemption is granted stands changed on account of any subsequent event the exemption would not operate. (see paras 23 and 24) Whenever the statute prescribes that a particular act is to be done in a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es: 119. (1) the Board may, from time to time, issue such orders, instructions and directions to other income- tax authorities as it may deem fit for the proper administration of this Act, and such authorities and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: xxx xxx xxx (2) Without prejudice to the generality of the foregoing power:- (a) xxx xxx xxx (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorize any income-tax authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law: 7. We may also refer to a decision of the Karnataka High Court in the case of Dr. (Smt.) Sujatha Ramesh vs. Central Board of Direct Taxes, New Delhi, (2017)87 taxmann.com 228 (Karnataka) , wherein the Court has observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon the facts of the each case, where such a time period or the merit of the claim deserves such exercise of discretion in favour of the assessee under Section 119(2)(b) of the Act or not and therefore, no straight jacket formula or guidelines can be laid down in this regard. However, such orders passed by the Central Board of Direct Taxes being a quasi-judicial order is always open to judicial review by the higher constitutional courts. If the good conscience of the Courts is pricked, even though such orders rejecting the claims on the bar of limitation may appear to be prima facie tenable, the Courts may exercise their jurisdiction to set aside such orders and allow the claims on merits, setting aside the bar of limitation. 14. The present case is one of such nature, where the Court finds that the substantial conditions for claiming the exemption from capital gain tax stood satisfied and the prescribed investment was made by the assessee in the Bonds of the National Highways Authority, for the minimum lock-in period of three years also is an undisputed fact, and therefore, the delay in making such investment of six months deserved to be condoned, in view of the fact that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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