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TMI Blog2023 (6) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... y that, in view of the genuine hardship faced due to lockdown in Ahmedabad city due to the corona pandemic, the assessee could not comply with the notice issued by the CPC, Bangalore within the stipulated period and by giving the said finding, the order was passed by the said authority in favour of the petitioner. As observed hereinabove, the said authority was not having jurisdiction to pass said order and therefore the same was withdrawn. Be that as it may, the fact remains the one of the authorities of the Revenue considered the case of the petitioner and thereby granted relief in favour of the petitioner. Thus, in view of the aforesaid facts and circumstances of the present case, the case of the petitioner deserves consideration. Hence, petition is allowed. - HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI AND HONOURABLE MR. JUSTICE DEVAN M. DESAI Appearance: For the Petitioner(s) No. 1 : Mr Tej Shah (5743) For the Respondent(s) No. 1 : Mr Dev D Patel For Mr. Varun K. Patel (3802) ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI) 1. This petition is filed under Article 226 of the Constitution of India, in which, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the return has been treated invalid and therefore petitioner was required to file revised return under Section 139(5) of the Act with correct details. 3.5. It is also stated that the petitioner filed another application to CPC in pursuant to the reply, wherein, she mentioned that while filing the revised return, there was an error shown on the portal that the acknowledgment number of the original return, which the petitioner has to mention in the revised return, is invalid. The petitioner has also requested to remove the tag of invalid return from the original return filed by the petitioner so that the revised return can be uploaded. Similar type of application was once again submitted. However, no response was received by the petitioner from the CPC. 3.6. The petitioner has further averred that petitioner thereafter filed an application before the PCIT-5, Ahmedabad and prayed that the delay in filing the return of income be condoned. The said application was submitted on 06.08.2020. Thereafter, in February, 2021, petitioner received a reply from the office of PCIT-5 that the jurisdiction to decide the said application was not with the said authority but the same is with C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by this Court in Special Civil Application No. 281 of 2022. Learned advocate, therefore, urged that the impugned order be quashed and set aside and thereby the respondent authority be directed to accept the original return of income or allow the petitioner to file fresh return or revised return of income for the Assessment Year 2019-2020. 6. On the other hand, learned advocate for the respondent has opposed this petition and referred the averments made in the affidavit-in-reply filed by the respondent, copy of which is placed on record at page 94 of the compilation. It is submitted that the CPC granted reasonable time to the petitioner to rectify the defects pointed out by the said authority. However, the petitioner has not made any effort to rectify such defects and thereafter application has been filed for condonation of delay before the respondent authority. It is submitted that when the petitioner has failed to point out genuine hardship, the respondent authority has rightly rejected the request made by the petitioner. Learned advocate, therefore, urged that present petition may not be entertained. 7. We have considered the submissions canvassed by learned advocates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndered in Special Civil Application No.281 of 2022, this Court has observed in para 4.2, 5, 5.4, 5.5, 5.6 and 6 as under: 4.2 Circular No. 9/2015 dated 9.6.2015 issued by the the Central Board of Direct Taxes was referred to and on that basis, it was submitted that the condonation could be considered only by exercising of powers under section 119(2)(b) of the Act in genuine cases. It was stated that decision of the respondent was based on two aspects namely merits of the genuine hardship and correctness of the claim. 5. Section 119(2)(b) of the Act reads as under, 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, authorise 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. xxx xxx xxx 5.4 In Sitaldas K. Motwani vs. Director General of Income Tax and others [(2009) SCC online 2195] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expected from the authorities. It is the substantive consideration and not the pedantic approach which should govern the decision under section 119(2)(b) of the Act. 10. In the case of ADCC Infocom (P.) Ltd (supra), the Bombay High Court has also considered similar type of issue and observed in para 8, 9, 10 and 11 as under: 8. The expression genuine hardship came up for consideration of the Supreme Court in case of B.M. Malani vs. Commissioner of Income Tax and another (2008) 306 ITR 196 (SC), wherein the Supreme Court accepted the position that genuine means not fake or counterfeit, real not pretending (not bogus or merely a ruse). Further, a genuine hardship would, inter alia, mean a genuine difficulty. 9. In case of Sitaldas K Motwani vs. Director General of Income Tax and others (2009) SCC OnLine Bom 2195 , this Court has held that the expression genuine hardship used in Section 119(2)(b) of the Act should be construed liberally, particularly, in matters of entertaining of applications seeking condonation of delay and this Court was pleased to observe as under: 15. The phrase genuine hardship used in Section 119(2)(b) should have been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ented approach and if a claim is legitimately due to an applicant even if a delay has occasional due to genuine hardship that should not be denied on technicalities. 11. This takes us to the order dated 24/03/2022 passed by respondent No. 1. Perusal of the order reveals that respondent No. 1 has not dealt with the reasons contained in the application for condonation of delay and the application was rejected without considering the affidavit of the Charted Accountant on the premise that since the account has been audited on 25/06/2020, there is no reason for delay in filing the return. Another reason, which has given that though the petitioner had incurred losses, it had distributed dividend of Rs. 302.93 lakhs. Holding that there is no financial hardship, respondent No. 1 rejected the application for condonation of delay. It appears that respondent No. 1 has lost sight of the provisions of Section 119(2)(b) of the Act, which speaks about genuine hardship and not the financial hardship. More so, the petitioner has filed affidavit of the Chartered Accountant describing difficulty during the relevant period and engagement, but that has not been considered at all. 11. Keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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