TaxTMI 
TaxTMI 
2021 (3) TMI 1088
X X X X Extracts X X X X
X X X X Extracts X X X X
....x Act, 1961 (briefly 'the Act' hereinafter). 4. Challenge made in both the writ petitions is to the orders dated 19.02.2020 passed by the Commissioner of Income Tax (Exemptions), Mumbai declining to condone the delay in filing Form No.10B of the Act for the assessment year 2018-2019. 5. Since facts are identical in both the petitions, for the sake of convenience we may refer to the facts pleaded in Writ Petition No.1061 of 2020. 6. It is stated that for the assessment year 2018-19, petitioner filed return of income on 25.07.2018 declaring nil income. Form No.10B was obtained on 15.08.2018 from the auditor. It is stated instead of uploading Form No.10B in the income tax portal, petitioner uploaded Form No.10BB because of mistake of the chartered accountant and accountant. 7. Centralized Processing Centre (CPC) of the Income Tax Department informed the petitioner vide letter dated 26.07.2019 about proposed adjustment in the income tax return for the assessment year 2018-19. Subsequently, petitioner received an intimation / order dated 17.10.2019 from the CPC under section 143(1) of the Act raising a demand of Rs. 1,46,01,489.00 as payable by the petitioner for the assessm....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he action of the Commissioner in rejecting the application of the petitioner for condonation of delay in filing Form No.10B. Circular of the CBDT is binding on all lower authorities. There is thus no infirmity in the impugned order. Writ petition should be dismissed. 15. While Dr. Shivaram, learned senior counsel for the petitioner submits that approach of the Commissioner of Income Tax (Exemptions) is too technical, Mr. Walve, learned standing counsel revenue however justifies the approach adopted by the Commissioner. Referring to section 119(2)(b), Dr. Shivaram submits that this Court in Sitaldas K. Motwani Vs. Director General of Income Tax, 323 ITR 223 had observed that the phrase 'genuine hardship' appearing in section 119(2)(b) should be construed liberally. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred because the other side cannot claim to have a vested right in injustice being done on account of a non-deliberate delay. He submits that in a number of judgments this Court had remanded the proceedings back to the Commissioner. 16. Submissions made by learned counsel for the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....other relief under the Act after the expiry of the period specified under the Act for making such application or claim and deal with the same on merit in accordance with law. Thus, in an appropriate case CBDT can pass a general order or a special order; by such an order it can authorize any income tax authority not being a Commissioner (Appeals) which would include Commissioner of Income Tax (Exemptions); to admit an application or claim for any exemption etc. after expiry of the period specified under the Act; and to deal with the same on merit in accordance with law. 20. Having noticed the above, we may now examine Circular No.2 / 2020 dated 03.01.2020 issued by the CBDT. The subject of the circular is condonation of delay under section 119(2)(b) of the Act in filing of Form No.10B for the assessment year 2018-19 and subsequent years. Referring to the earlier circulars issued by the CBDT, it was noticed that the delay in filing Form No.10B for the assessment year 2016-17 and assessment year 2017-18 in all such cases where the audit report for the previous year had been obtained before filing of return of income and had been furnished subsequent to the filing of the return of inc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 10B was delayed in e-filing. The assessee has requested for condonation of delay in filing Form No.10B. 2. On perusal of application for condonation of delay of assessee as well as relevant provisions of the Income Tax Act, 1961 (the Act), Circulars & Notifications, it is observed that the power u/s. 119(2)(b) of the Act lies with the CBDT. However, for the condonation of delay u/s.119(2)(b) of the Income-tax Act, 1961 in filing of Form No.10B for A.Y.2018-19 and subsequent years, has been delegated to the Commissioner of Income-tax (Exemptions), vide Circular No.02/2020 in F.No.197/55/2018-ITA-I dated 03rd January, 2020. The relevant excerpts from the circulars is reproduced as under: "5. In addition to the above, it has also been decided by the CBDT that where there is delay of upto 365 days in filing Form No.10B for Assessment Year 2018-19 or for any subsequent Assessment Years, the Commissioners of Incometax are hereby authorized to admit such belated applications of condonation of delay u/s.119(2) of the Act and decide on merits." 3. As per para 5 of the above Circular dated 03.01.2020, it is very clear that the delay of upto 365 days in filing of Form No.10B for....