TaxTMI 
TaxTMI 
2023 (7) TMI 1405
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....ted as 04.05.2020], for the sole reason of non-filing of a valid sec.139(1) return. It further emerges that the assessee had very well instituted it's writ petition 4832 of 2021 before the hon'ble jurisdictional high court. Their lordships order dated 23.08.2022 has disposed of the same vide following directions : "11. We have heard the submissions made by learned counsel for the parties and with their able assistance perused the papers and proceedings. 12. It is not in dispute that petitioner having been a joint venture partner of Sanghvi Premise Pvt. Ltd. was involved in the housing project named Sanghvi Nakshatra at Nasik. It is also not disputed by the respondents that Sanghvi Premises Pvt. Ltd. has been allowed the deductions under Section 80 IB (10) of the Act for the AYs 2010-11 to 2013-14. Admittedly, the petitioner has also been allowed deduction under Section 80 IB (10) for the said project for the AYs 2010-11, 2012-13 and 2013-14. It is only in respect of the AY 2011-12 that the return of income came to be filed on 30th September, 2012 after a delay of 365 days. For the said assessment year, the petitioner has claimed deduction of Rs. 31,06,990/- under ....
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....ated by the applicant, Mr. Panchal had attended various other limitation matters before 30.03.2012 such as returns of income for AY 2011-12 and filing of belated returns for AY 2010-11 of other clients of B. S. Mart but he filed the return of income of the applicant for AY 2011-12 afterwards on 30.09.2012 only. iii. As claimed, the application for condonation of delay u/s 119(2)(b) has been filed quite late as the applicant's Chartered Accountants - M/s B. S. Mart have never advised about filing the petition u/s 119(2)(b) of the Act and said that the delay in filing of the return will not stand in the way of deduction u/s 80 IB(10) of the Act. In this respect, it is submitted that the applicant would have enjoyed the benefits based on the advice of its Chartered Accountants such as preparation of audit reports, filing of returns of income in time for other assessment years etc. Then, it cannot shift its responsibility cast upon by the law of land to its Chartered Accountant when their advice, as claimed, did not result in its favour. iv. The applicant appears to be well aware of the position of law in respect of the dealing with the petitions for condonation of de....
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....efault occurred due to some reason is not enough to establish the claim of genuine hardship. Further, the applicant has referred to the judgments, where the condonation of delay was granted by the Hon'ble Courts considering the reasonable cause and genuine hardship. In this respect, it is submitted that :- a. In the case of Mr. Laddulal Sharma in writ petition No. 9350/2019 order dated 14.01.2020 [Hon'ble High Court of Madhya Pradesh] - The application of the assessee for condonation of delay u/s 119(2)(b) of the Act, was allowed as the illness and hospitalization of the wife of the assessee, which lead to the delay, was considered a reasonable and genuine cause of delay in filing of return of income and a case of genuine hardship to the assessee. Here the delay caused is directly related to the assessee. But, in the present case, the poor health of the son of the representative CA is held to be the main cause of delay, which is not directly related to the applicant. b. Surendranagar District Co-operative Bank Ltd. (2019) 311 CTR 0091 (Hon'ble High Court of Gujrat)- In this case, the assessee had made out a case of genuine hardship for admitting the claim....
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....when their advice as claimed, does not result in it favour. Moreover, the CIT(A) has dismissed the appeal filed by the applicant against the assessment and, at present, the matter is sub-judice before the ITAT (as intimated by the applicant). ix. The Hon'ble High Court of Delhi vide its decision dated 12.03.2018 in case of M/s B. U. Bhandari Nandgude Patil Associates (on application for condonation of delay u/s 119 (2)(b) of the Act and order passed by the CBDT on 08.02.2017) has dwelled upon "reasonable cause". The Hon'ble Court has regarded the findings of the CBDT with respect to reasonable cause, genuine hardship & diligence as lucid and cogent and has affirmed the following w.r.t. reasonable cause :- "10. In determining whether genuine hardship is caused to the assessee one has to see whether the delay in filing of return was due to a reasonable cause or not. In this case, delay is attributed ti(sic to) the Auditor. However, in such a case on has to see whether the Auditor had a reasonable for cause for delay and whether the assessee pursued the matter due to diligence to get his audit done in time. 11. On the question whether the auditor had a reaso....
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....s taken. b. More than 7 years from the date of ROI was filed. 8. In view of the above, the petition/application dated 11.10.2019 of M/s Bhatewara Associates, seeking condonation of delay of 365 days (12 months) u/s 119 (2) (b) in filing its Return of Income for A. Y. 2012-12 is rejected." 14. It is observed from the afore-quoted decision that the CBDT has rejected the explanation with respect to the delay caused due to the health condition of the son of the income tax consultant of the petitioner. The income tax consultant has on page 80 to 81 of the petition sworn or an affidavit the reasons due to which the return of the petitioner for the year remained to be filed by 30th September, 2011 and was filed only on 30th September, 2012. The said reasons of the paragraphs 3 and 4 are quoted as under :- "3) That for the reasons mentioned here below besides due to oversight the said Return remained to be filed and finally it is filed on 30.09.2012. My son, Master Rushikesh, aged 15 years is unfortunately born handicapped and requires constant attention on some of the serious occasions that develop periodically. I state on oath that right from first wee....
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....hrase should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12th October, 1993. Paragraph 16 of the said decision of this Court is usefully quoted as under :- "15. The phrase "genuine hardship" used in Section 119(2)(b) should have been construed liberally even when the petitioner has complied with all the conditions mentioned in Circular dated 12th October, 1993. The Legislature has conferred the power to condone delay to enable the authorities to do substantive justice to the parties by disposing of the matters on merit. 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 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 th....
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....ly elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice - that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realised that: "1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. 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. 3. 'Every day's delay must be explained' does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. 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 non- deliberate delay. 5. There is no presump....
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....due to genuine hardship that should not be denied on technicalities. As hold by this Court in the case of Sitaldas K. Motwani vs. Director General of Income Tax and Others (supra), the word "genuine" has to be given a liberal meaning in view of the law laid down by the Supreme Court in the case of B. M. Malani Vs. Commissioner of Income Tax and Another, (2008) 306 ITR 196 (SC). Paragraph 13 of the decision of this Court in Sitaldas K. Motwani vs. Director General of Income Tax and Others (supra) is usefully quoted as under :- "13. The apex court, in the case of B.M. Malani Vs. CIT, (2008) 306 ITR 196 (SC); (2008) 10 SCC 617, has explained the term "genuine" in the following words (page 207) : "The term 'genuine' as per the New Collins Concise English Dictionary is defined mere a ruse)'... The ingredients of genuine hardship must be determined keeping in view the dictionary meaning thereof and the legal conspectus attending thereto. For the said purpose, another well known principle, namely, a person cannot take advantage of his own wrong, may also have to be born in mind." 19. In this case, there is no doubt that the petitioner as well as its joint ventur....
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....) through the petitioner. In our view, substantial injustice would be caused to the petitioner if the order dated 7th May, 2021 is not set aside. This is clearly a case falling within the phrase "genuine hardship". As mentioned above. Technical consideration above cannot come in the way of substantial justice. It is neither an allegation of malafide nor an allegation that the delay has been deliberate. We do not find that the omission to file petitioner's return by the income tax consultant to be an act of negligence. Any person in his situation would have been mentally disturbed. The very fact that not only the petitioner's ITR was not filed in time, there were also 28 others whose return filing was delayed beyond the due date. The authorities should refrain from over analysis which leads to paralysis of justice. We are, therefore, of the view that the impugned order dated 7th May 2021 deserves to be set aside and is hereby set aside. 22. The income tax authority to act accordingly and consider the claim for deduction under Section 80 IB(10) for AY 2011-12 made by the petitioner in accordance with law, as if there was no delay in filing the return. The authorities under t....