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TMI Blog2022 (8) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. 1.1 Rule returnable forthwith. Learned advocate for the respondent waives service of Rule. 1.2 Heard learned advocate Mr. Dhinal Shah for the petitioner and learned senior advocate Mr. M. R. Bhatt for M. R. Bhatt & Co. for the respondent. 2. The petitioner by filling the present petition under Article 226 of the Constitution has prayed to set aside order dated 30.11.2021. By the said order passed under section 119(2) (b) of the Income Tax Act, 1961, the Chief Commissioner of the Income Tax-1, Ahmadabad-respondent herein, rejected the application of the petitioner and refused to condone the delay occurred in filling the Return of Income Tax for the Assessment Year 2020-2021. The petitioner has also prayed to condone the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecame available from the derivative transactions undertakern in the individual capacity, it was found that the petitioner had suffered loss. This aspect was brought to the notice of the accountant. The chartered accountant was consulted and the Return was finalised on 8.3.2021, which was ultimately uploaded on 10.3.2021 and audit report was uploaded on 20.3.2021. 4. Learned advocate for the petitioner submitted that the respondent overlooked the reasons which were genuine for belated filling of Return of Income. It was submitted that the delay was for 23 days and the petitioner had no intention not to file the return but on account of the aforementioned circumstances, filling of Return got delayed. It was further submitted that the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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." 5.1 The Central Board of Direct Taxes has issued circular No. 9/2015 dated 9.6.2015 which contained the instructions to the sub-ordinate authorities in respect of condonation of delay for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f delay under section 5 of the Limitation Act may be justified in considering the merits of the case and consequences to the party for non-consideration of the case on merits, I do not think section 119(2)(b) is just an incorporation of Section 5 of the Limitation Act. What is stated in section 119(2)(b) is that if the Board considers it desirable or expedient for avoiding genuine hardship to the assessee, it should condone the delay. In other words, what the Board should consider is hardship to the party if delay is not condoned. The Board should condone the delay if failure to condone the delay cause genuine hardship to the assessee, no matter whether the delay in filling return is meticulously explained or no...." 5.4 In Sitaldas K. Mot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 delay which should overweigh with the authorities. 6. Adverting to the facts of the present case, the assessee explained by cogent reasons that the accountant who was handling the work to file Return etc. suffered Covid 19 vires and due to his indisposed health the completion of work was delayed resulting into delayed filling of return. The Chief Commissioner of Income Tax could no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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