TaxTMI 
TaxTMI 
2025 (6) TMI 1644
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....nt Year 2020-21 is rejected. 3. The brief facts of the case are as under : 3.1. The petitioner has filed the Return of Income declaring total income of Rs. 1,37,73,200/- for Assessment Year 2020-21 on 30.10.2020. It is the case of the petitioner that the petitioner was appointed at Bangladesh in 'Square Pharmaceutical Limited' as Executive Vice President and Scientific Affairs from 16.06.2019 and the petitioner earned Rs. 42,46,561/- (Indian currency) on which tax was paid in Bangladesh as per the certificates dated 27.10.2019 and 28.10.2019 issued by the Deputy Commissioner of Income Tax, Taxes Zone-II, Dhaka. 3.2. It is the case of the petitioner that as per Article 16 of the Double Taxation Avoidance Agreement (DTAA) between Bangladesh and India, the petitioner was entitled to credit of Rs. 13,03,772/- on the tax payable on the amount of salary which was offered for tax by the petitioner as per the aforesaid certificates. The Return of Income filed by the petitioner was processed and intimation under Section 143(1) of the Act was issued on 24.12.2021 by the CPC, Bangalore. However, the petitioner did not file Form no. 67 as required by Rule 128(1) of the Income Tax Rule....
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.... in [2024] 169 taxmann.com 222 (Gujarat). (3) In the case of Shri Visha Oswal Tap. Shantibhuvan Upashray and Derasar v. Commissioner of Income-Tax (Exemptions) reported in [2024] 167 taxmann.com 170 (Gujarat). (4) In the case of Shri 108 Parshwanath Bhakti Vihar Jain Trust v. Commissioner of Income Tax (Exemption) reported in [2024] 166 taxmann.com 732 (Gujarat). (5) In the case of Nileshkumar Uttamchand Rathod v. Office of the Principal Commissioner of Income Tax reported in [2024] 160 taxmann.com 345 (Gujarat). (6) In the case of Chintan Navnitlal Parikh (HUF) v. Deputy Secretary (OT and WT) Central Board of Direct Taxes reported in [2023] 154 taxmann.com 544 (Gujarat). (7) In the case of Sarvodaya Charitable Trust v. Income Tax Officer (Exemption) reported in [2021] 125 taxmann.com 75 (Gujarat). (8) In the case of Pankaj Kailash Agarwal v. Assistant Commissioner of Income-Tax reported in [2024] 161 taxmann.com 383 (Bombay). 5. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the petitioner failed to show any genuine cause which has resulted into any hardship to the pet....
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....specified for furnishing such return of income" 7. As held by this Court in various judgments while considering the late filing Form 10IC, Form 10B as required under various provisions of the Act for claiming deduction under Chapter-VI, that the filing of form for claiming benefit under the provisions of the Act is procedural, the case of Sitaldas K. Motwani v. Director General of Income Tax (International Taxation) reported in [2010] 187 Taxman 44 {=323 ITR 223 (Bombay)} as well as the case of Bombay Mercantile Co-op. Bank Ltd., v. CBDT reported in [2010] 195 Taxman 106 {=332 ITR 87(Bombay)} were followed. Similarly in case of Pankaj Kailash Agarwal v. Assistant Commissioner of Income Tax reported in [2024] 464 ITR 65 (Bombay), the Hon'ble Bombay High Court has held as under :- "10. On the issue of genuine hardship, relying on R. K. Madhani Prakash Engineers (Supra), Mr. Sarda submitted that while considering this aspect of genuine hardship, the authorities are expected to bear in mind that ordinarily applicant applying for condonation of delay does not stand to benefit by lodging its claim late. Moreso, when applicant is claiming the deductions under Section 80IC of t....
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....y the applicant, applying for condonation of delay, does not stand to benefit by lodging erroneous returns. Refusing to condone the 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 non-deliberate action. There is no presumption that a delay in correcting an error or responding to a notice of invalid return received under Section 139(9) of the Act 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 authority should be justice-oriented so as to advance cause of justice. If the case of an applicant is genuine, mere delay should not defeat the claim. We find support for this view in Sitaldas K. Motwani v. Dire....
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....e in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund." (p.187) 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 12-10-1993. 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 bare 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 the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justic....
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....the Return of Income in view of the provisions contained in Section 139 of the said Act read alongwith Income Tax Rules, 1962 and in particular the report in the prescribed Forms of Return of Income then in vogue which required an assessee to attach the TDS Certificates for the refund being claimed. The explanation furnished is that on account of shifting of registered office, it is possible that TDS Certificates which may have been addressed to the earlier office, got misplaced. There is nothing counterfeit or bogus in the explanation offered. It cannot be said that the petitioner has obtained any undue advantage out of delay in filing of Income Tax Returns. As observed in case of Sitaldas K. Motwani (supra), there is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. It cannot be said that in this case the petitioner has benefited by resorting to delay. In any case when substantial justice and technical consideration are pitted against each other, the cause of substantial justice deserves to prevail without in any manner doing violence to the language of the Act. 21. We find that the impugned order dated....
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....ing defeated. As against this, when the delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. Similar issue came to be considered in R. K. Madhani Prakash Engineers (Supra), where paragraph 8 reads as under : "8 Further it is recorded in the impugned order that petitioner has failed in proving the genuine hardship. In this regard, we would refer to the judgment of a Division Bench of this court in the case of Sitaldas K. Motwani Vs. Director General of Income Tax (International Taxation) & Ors.,(2009 Scc Online Bom 2195) where the court has discussed the phrase "genuine hardship" used in Section 119(2)(b) of the Act. The court has held that the phrase "genuine hardship" should be construed liberally particularly when the legislature had conferred the power to condone the delay to enable the authorities to do substantive justice to the parties by disposing the matter on merits. While considering this aspect of genuine hardship, the authorities are expected to bear in mind that ordinarily applicant applying for condonation of delay does not stand to benefit by lodging its claim late. More so, in the case....
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....tate is expected to deal with the citizens, who in their anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, even though the monies were not actually required to be paid by them and thereafter seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the plea of limitation in such a situation to avoid return of the amounts. Section sit of the Act vests ample power in the Board to render justice in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund. 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 bare in mind that ordinarily the applicant....
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.... Member (IT&R), Central Board of Direct Taxes" and is signed by one Virender Singh, Additional Commissioner of Income Tax (ITA Cell), CBDT, New Delhi. If a personal hearing has been granted by the Member (IT&R), the order should have been passed by him. Mr. Sharma states there could be file notings. If that is so, that has not been made available to Petitioner. 12. In the circumstances, on these two grounds alone, we quash and set aside the impugned order dated 5th December 2023 and remand the matter to CBDT. The Member/Members shall within three weeks from the date this order is uploaded make available to Petitioner all Field Reports/ documents/ instructions received by the CBDT from the Field Authorities and within two weeks of receiving the same, Petitioner shall file, if advised, further submissions in support of their application for condonation of delay. 13. Thereafter, an order shall be written, passed and that order shall be authored and signed by the Member of CBDT, who has given a personal hearing and when we say this, it is not the Member holding the same designation. The same individual who gave a personal hearing, shall write and sign the order. All r....