TaxTMI 
TaxTMI 
2023 (6) TMI 1287
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....oking to the issue involved in the present petition, learned counsel appearing for the parties jointly requested that this petition be disposed of finally at admission stage. Hence, Rule. Learned Standing Counsel Mr. Dev D. Patel waives service of notice of Rule for the respondent. 3. The brief facts leading to filing of the present petition are as under: 3.1. It is the case of the petitioner that petitioner is an individual engaged in providing professional services and also trading in shares. She filed her return under Section 44ADA of the Income Tax Act, 1961 (hereinafter referred to as the 'Act' for short) declaring total income of Rs. 12,61,150/- and total loss of Rs. 39,55,031/-. It is further stated that the Central Processing Centre (CPC) found the return defective and issued a notice under Section 139(9) of the Act. The petitioner was asked to remove the defect in her return of income within 15 days from the receipt of the notice. The said notice was issued on 18.02.2020. 3.2. It is stated that the petitioner was unable to remove the defect within stipulated period given by the CPC and therefore an order dated 07.07.2020 came to be passed under Section 139(9) of the Act....
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....er on 12.10.2021, whereby, the application submitted by the petitioner for condonation of delay came to be dismissed. The petitioner has, therefore, preferred the present petition challenging the said order. 4. Learned advocate Mr. Tej Shah appearing for the petitioner would mainly contend that petitioner has shown genuine hardship caused to the petitioner and pointed out that the petitioner could not rectify the mistake of the return as suggested by the CPC within stipulated period, in spite of that, the respondent authority has rejected the application for condonation of delay submitted by the petitioner. It is submitted that the respondent authority is empowered to condone the delay in view of the provisions contained in Section 119(2)(b) of the Act. It is also contended that PCIT-1 in fact had condoned the delay after considering the same grounds mentioned by the petitioner in the application for condonation of delay submitted before the said authority. However, the said order was withdrawn on the ground that the said authority did not have jurisdiction to entertain the application. The fact remains that the same grounds were considered by another authority, in spite of that,....
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....ile revised return. However, the petitioner once again pointed out to the CPC that because of certain technical aspect, revised return could not be uploaded on the Portal. The petitioner, thereafter, made an application before the concerned authority i.e. PCIT-5, Ahmedabad and requested to condone the delay in filing the return of income. The said application was forwarded to PCIT-1 and thereafter PCIT-1 passed an order in favour of the petitioner by condoning the delay in filing the return and the same was treated as valid. The said order was passed on 07.09.2021. However, when the said authority i.e. PCIT-1 realized that the said authority is not having jurisdiction to pass the order, the same was withdrawn on 27.09.2021. Thereafter, the respondent passed the impugned order on 12.10.2021, by which, the application of petitioner for condonation of delay came to be dismissed on the ground that petitioner has failed to show genuine hardship. 8. We have perused the application submitted by the petitioner before the respondent authority. Copy of the said application is placed on record at page 79 of the compilation. Similar application is placed on record at page 81 of the compilatio....
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....he Act for making such application. After hearing any such application post the expiry of period specified, the authority may deal with the same on merits in accordance with the law. It is avowed purpose of the provision in section 119(2)(b) to avoid genuine hardship in the classes of cases as is expressly mentioned. 5.6 The words in the section, "if it considers it desirable or expedient to do so for avoiding genuine hardship" give wide power on the Board and obligates the authority concerned dealing with the request for acceptance of the applicant etc.. to consider the relevant facts and reasons which may have been advanced for condoning the delay. The object is to help the assessee who for good and valid reasons are prevented from moving an application for any purpose within the time stipulated under the Act. In other words, their applications may have witnessed delay for several meritorious reasons. It is true that merit of the case of the assessee could be simultaneously considered by the authority exercising powers under section 119(2)(b) of the Act, however, the dominant purpose to be achieved is to condone the delay and therefore, it is the grounds offered explaining the....
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.... 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 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 cause of justice. If refund is legitimately due to the applicant, mere delay should not defeat the claim for refund." 10. In the aforesaid decision, it clearly indicates that the power under Section 119(2) (b) of the Act while ascertaining the 'genuine hardship' is to be construed liberally for the reason that the authorities can do substantive justice of disposing ....