Trust For Reaching The Unreached Through Trustee,Nimittaben N Bhatt v. Commissioner Of Income Tax (Exemptions), Ahmedabad

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 8977 of 2020With R/SPECIAL CIVIL APPLICATION NO. 9370 of 2020With R/SPECIAL CIVIL APPLICATION NO. 9760 of 2020 ================================================================ TRUST FOR REACHING THE UNREACHED THROUGH TRUSTEE,NIMITTABEN N BHATT Versus COMMISSIONER OF INCOME TAX (EXEMPTIONS), AHMEDABAD ================================================================ Appearance:MR. HARDIK V VORA(7123) for the Petitioner(s) No. 1MRS. MAUNA M BHATT(174) for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAandHONOURABLE MR. JUSTICE ILESH J. VORA Date : 22/12/2020 COMMON ORAL ORDER (PER : HONOURABLE MR. JUSTICE ILESH J. VORA) 1.As the issues raised in all the captioned writ-applicationsare the same, those were heard analogously and are beingdisposed of by this common judgment and order. 2.For the sake of convenience, the Special Civil ApplicationNo.8977 of 2020 is treated as the lead matter. 3.By this writ-application under Article 226 of theConstitution of India, the writ-applicant, a public charitabletrust, has prayed for the following reliefs : “(a)A writ of certiorari or any other writ, order or directionin the nature of certiorari quashing the order dated26.08.2019 rejecting application for condonation of delayu/s.119(2)(b) of the Act; (b)A writ of mandamus or any other writ, order ordirection in the nature of mandamus directing therespondent to allow filing of Form 10 belatedly; (c)Pass any other order(s) as this Hon'ble Court maydeem fit and more appropriate in order to grant interim reliefto the petitioner; (d)Any other and further relief deemed just and proper begranted in the interest of justice; (e)To provide for the cost of this petition.” 2.The facts giving rise to this writ-application may besummarised as under : 3.The writ-applicant is a public charitable trust. Thewrit-applicant seeks to challenge the order passed by therespondent dated 26[th] August 2019 under Section 119(2)(b) ofthe Income Tax Act, 1961 (for short, ‘the Act 1961’), rejecting theapplication filed by the writ-applicant for condonation of delay infiling the Form no.10 of the Act 1961 for the Assessment Year2014-15. 4.It is the case of the writ-applicant that being a publiccharitable trust, it is registered with the Charity Commissioneras well as with the Income Tax authorities under Section 12A ofthe Act 1961 past more than 30 years. The books of accounts ofthe writ-applicant are being audited regularly and the return ofincome is also filed without any issues. 5.The auditor of the writ-applicant filed the audit report inthe Form no.10B under Section 12A(b) of the Act 1961 on 1[st]September 2014. The writ-applicant had also filed the return ofincome for the Assessment Year 2014-15 on 27[th] September2014. However, as there was some defect, the writ-applicantfiled a revised return of income for the Assessment Year 2014-15on 22[nd] November 2014, declaring the total income NIL andclaiming refund of Rs.1,92,850=00 after declaring exemption ofRs.73,43,699=00 under Section 11(1) of the Act 1961 andRs.17,50,000=00 under Section 11(2) of the Act 1961. Thedocument was required to be confirmed by the writ-applicantusing the online account. Unfortunately, the trustees of the trustfailed to confirm the same and, as a result, the audit report didnot get e-filed along with the return of income. 6.It is the case of the writ-applicant that the return of incomewas processed under Section 143(1) of the Act on 14[th] January2016 by the respondent, rejecting the benefit of exemption to thewrit-applicant and a demand notice for Rs.2,17,210=00 came tobe issued. The notice referred to above stated the reason fordemand on account of non e-filing of the Form no.10 along withthe return of income and suggested that the same may be filedwith a request to condone the delay. 7.It is the case of the writ-applicant that the aforesaid noticeultimately brought the fact to their knowledge as regards the none-filing of the Form no.10 of the Act 1961 along with the returnof income. 8.On receipt of the demand notice referred to above, thewrit-applicant e-filed the Form no.10 claiming exemption underSection 11(2) of the Act 1961 for Rs.17,50,000=00 and requestedto condone the delay in filing the Form no.10 vide letter dated11[th] February 2019 addressed to the respondent. 9.It is the case of the writ-applicant that the respondentissued a notice dated 2[nd] April 2019, to show-cause why theapplication for condonation under Section 119(2)(b) of the Act1961 filed by the writ-applicant should not be rejected as nogenuine hardship had been shown which prevented it from filingthe Form no.10. 10.On 9[th] April 2019, the writ-applicant replied to theshow-cause notice issued by the respondent, explaining theentire chain of events and requested to condone the delay.However, the application ultimately came to be rejected videorder dated 19[th] August 2019. 11.It appears from the materials on record that relying on theCircular No.273 dated 3[rd] June 1980 issued by the CentralBoard of Direct Taxes as the writ-applicant could not fulfil theconditions mentioned in the said Circular, vide order dated 26[th]August 2019, the application for condonation of delay came to berejected. 12.Being dissatisfied with the order referred to above passedby the respondent, the writ-applicant is here before this Courtwith the present writ-application. SUBMISSIONS ON BEHALF OF THE WRIT-APPLICANT : 13.Mr.H.V.Vora, the learned counsel appearing for thewrit-applicant vehemently submitted that the impugned orderpassed by the respondent is patently errorneous in law.According to Mr.Vora, the respondent ought to have appreciatedthat it was a bonafide mistake on the part of the trustees whobelieved that it was the auditor who was obliged to upload all therequired documents without any follow-up action on their part.Mr.Vora would submit that it was only after the exemption wasdisallowed and demand was raised that the issue came to theknowledge of the writ-applicant. It is argued that the delay in filing the Form no.10 was caused due to the factors beyond thecontrol of the writ-applicant. 14.It is also pointed out that the writ-applicant filed the Formno.10 immediately upon having come to know that it could notbe filed in accordance with law. 15.Mr.Vora would submit that the respondent ought to haveadopted a liberal approach for the purpose of condoning therather than adopting a highly pedantic approach. 16.Mr.Vora, in support of his above noted submissions, hasplaced reliance on the following decisions : (1) Shri Chandraprabhuji Maharaj Jain vs. DCIT(Exemptions)-II, Chennai (Tax Appeal No.517 of 2019);(Exemptions)-II, Chennai (Tax Appeal No.517 of 2019); (2) G.V.Infosutions (P.) Ltd. vs. Dy. CIT, Circle 10(2), reportedin (2019) 261 taxmann.com 482 (Delhi). 17.In such circumstances referred to above, Mr.Vora praysthat there being merit in his writ-application, the same may beallowed and the impugned order be quashed and set-aside. SUBMISSIONS ON BEHALF OF THE RESPONDENT : 18.On the other hand, this writ-application has beenvehemently opposed by Ms.Mauna Bhatt, the learned senior 16.Mr.Vora, in support of his above noted submissions, hasplaced reliance on the following decisions : (1) Shri Chandraprabhuji Maharaj Jain vs. DCIT(Exemptions)-II, Chennai (Tax Appeal No.517 of 2019);(Exemptions)-II, Chennai (Tax Appeal No.517 of 2019); (2) G.V.Infosutions (P.) Ltd. vs. Dy. CIT, Circle 10(2), reportedin (2019) 261 taxmann.com 482 (Delhi). 17.In such circumstances referred to above, Mr.Vora praysthat there being merit in his writ-application, the same may beallowed and the impugned order be quashed and set-aside. SUBMISSIONS ON BEHALF OF THE RESPONDENT : 18.On the other hand, this writ-application has beenvehemently opposed by Ms.Mauna Bhatt, the learned senior standing counsel appearing for the Revenue. Ms.Bhatt wouldsubmit that no error, not to speak of any error of law, could besaid to have been committed by the respondent in passing theimpugned order. 19.Ms.Bhatt would submit that although the eturn of incomefor the Assessment Year 2014-15 was filed, yet thewrit-applicant failed to e-file the Form no.10 along with thereturn. It is argued that the respondent has thought fit, inexercise of his discretion, not to condone the delay and suchdiscretion cannot be said to have been exercised arbitrarily orunjudiciously. 20.Ms.Bhatt would submit that in the case on hand, theCommissioner has recorded cogent reasons while declining tocondone the delay. She would submit that the facts of thepresent case and the facts involved in the decision of the MadrasHigh Court and the Delhi High Court upon which reliance isplaced on behalf of the writ-applicant are distinct. She wouldsubmit that the powers should be exercised cautiously with duecare and circumspection and not in a routine manner only toextend the limitation provided by the Act. Ms.Bhatt hasexpressed a strong apprehension about a difficulty that mayarise if ultimately the impugned order is quashed and the Formno.10 is ordered to be taken on record. According to her, as perthe proviso to Section 142(2) of the Act, no notice can be servedon the assessee after the expiry of six months from the end ofthe financial year in which the return is furnished. She wouldsubmit that the said date has elapsed. Similarly, according to Ms.Bhatt, no notice under Section 142(1) of the Act can beissued as the time limit for passing the assessment order underSection 143(3) of the Act has also expired. She would argue thateven after the writ-applicant is allowed to file the Form no.10along with the return of income, the veracity thereof is requiredto be ascertained. It will also have to be ascertained, whether thewrit-applicant is eligible to the benefits/exemption under Section11 of the Act. She would submit that the time limit as aforesaidhas expired. 21.In the last, Ms.Bhatt submitted that if ultimately thisCourt is convinced that sufficient cause has been assigned bythe writ-applicant for the purpose of condonation of delay, thenthis Court may clarify that despite the time period havingexpired, it shall be open for the department to issue notice underSection 143(2) of the Act or Section 142(1) of the Act, as the casemay be. 22.In such circumstances referred to above, Ms.Bhatt praysthat there being no merit in this writ-application, the same maybe rejected. ANALYSIS : 24.Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the onlyquestion that falls for our consideration is, whether therespondent committed any error in passing the impugned order. 25.For the purpose of seeking condonation of delay, thewrit-applicant moved an application filed under Section 119(2) ofthe Act addressed to the Principal Commissioner of Income Tax(Exemption), Ahmedabad, stating as under : “Sub: Request for condonation of delay under section 119(2)(b) in filing form No.10 (Rule 17(2) of the I.T. Act 1961 for AY 2014-15. 22.In such circumstances referred to above, Ms.Bhatt praysthat there being no merit in this writ-application, the same maybe rejected. ANALYSIS : 24.Having heard the learned counsel appearing for the partiesand having gone through the materials on record, the onlyquestion that falls for our consideration is, whether therespondent committed any error in passing the impugned order. 25.For the purpose of seeking condonation of delay, thewrit-applicant moved an application filed under Section 119(2) ofthe Act addressed to the Principal Commissioner of Income Tax(Exemption), Ahmedabad, stating as under : “Sub: Request for condonation of delay under section 119(2)(b) in filing form No.10 (Rule 17(2) of the I.T. Act 1961 for AY 2014-15. Ref : Trust for Reaching the Unreached (PAN : ) ) Dear Sir, With reference to above referred subject, and under theinstruction of our client, TRUST FOR REACHING THEUNREACHED we would like to state that : The object of the Trust ic charitable in nature sinceincorporation of the trust in the year 1987. The Trust isrunning various educational and health centers for providinghelp to the needy and poor persons. Moreover the trust isalso carrying out the welfare activities to ensure betterlivelihood for the poor disable and weaker section of thesociety. We would like to state that the assessee has filedreturn of income for the relevant assessment year declaring NIL total income and claiming refund of Rs.1,92,845/- videacknowledgement no.370510010270914 dated 27.09.2014. We would like to state that as per the provisions of thesection 11(2) of the I.T. Act 1961 – Accumulation and Settinga part of the trust income for specific purpose, the assesseehas set apart the income of the trust in the the forms ormodes specified in section 11(5) “Where 85% of the incomeof charitable trust as referred above is not applied tocharitable or religious purposes in India during the previousyear but is accumulated or set apart, either in whole or inpart, for application to charitable or religious purposes inIndia, such income so accumulated or set apart will notattract tax liability. We would like to state that the assesseehas set apart Rs.17,50,000/- for the relevant assessmentyear and has also utilized it in the subsequent years itself.However the assessee has genuinely skipped to file Form 10as per the provisions of the I.T. Act 1961 as the assesseeduring the period was massively involved in the activities ofcharitable, religious and educational purpose within the cityas well as in the outskirts of the city. We would also like tostate that in order to improve the conditions of the poor andthe uneducated sector of the society, the Trust along withthe Trustees themselves and the entire staff of the trustincluding the accounts and administration team wereinvolved in such activities. We would like to state that theassessee had genuinely faced hardships and the intentionof the assessee was not deliberate and malafide for notfiling the form Form 10 as per the provisions of the I.T. Act1961. However after coming to know the facts the assessee has filed Form 10 as per the provisions of the Act 1961 forthe relevant assessment year on 11.02.2019. We areenclosing herewith the copy of Form 10 filed for your kindperusal. has filed Form 10 as per the provisions of the Act 1961 forthe relevant assessment year on 11.02.2019. We areenclosing herewith the copy of Form 10 filed for your kindperusal. We would like to state that the income declared by theassessee while filing the return of income is correct and therefund claimed is also correct and genuine as well as thedelay in filing the form 10 is also due to genuine hardships.We would further like to state that the income of theassessee is not assessable in the hands of any other personunder any other provisions of the Act 1961 and the refundhas arisen as a result of excess of tax deducted at source asper the provisions of the Act 1961. We would like to statethat if the permission for filing the Form 10 is not granted byyour goodselves then it will rise to high demand resultinginto shortfall of funds for achieving the objects of the trustand development of the society also. Considering all these facts we would like to request you toaccept the Form 10 and condone the delay in filing of Form10 for AY 2014-15 and grant us the permission for filing thesame.” 26.The respondent, however, declined to condone the delayand rejected the said application by the impugned order dated26[th] August 2019 (Annexure-D to the writ-application),assigning the following reasons in the impugned order : “-ORDER U/S.119(2)(b) OF THE INCOMETAX ACT, 1961 The applicant, Trust for Reaching the Unreached, Vadodarahas filed an application dated 11.2.2019, for condonation ofdelay in filing the form No.10 of the I.T. Act, 1961 for theA.Y. 2014-15. In its application it is stated that the trust isestablished since 1987 and is running various educationaland health centres for providing help to the needy and poorpersons. Moreover the trust is also carrying out the welfareactivities to ensure better livelihood for the poor, disabledand weaker section of the society. It has further submittedthat the return for A.Y. 2014-15 was filed on 27.9.2014 videacknowledgement no.370510010270914 claiming refund ofRs.1,92,845/-. During the A.Y. 2014-15, it had accumulatedan amount of Rs.17,50,000/- and has also utilized it in thesubsequent year itself. As the Trust was massively involvedin the activities of charitable, religious and educationalpurpose within the city as well as in the outskirts of the city,it genuinely skipped to file Form 10 as per the provisions ofthe Act. After coming to know the facts the assessee filedForm 10 on 11.2.2019. It has further submitted that therewas neither malafide intention nor any deliberate act in thelapse. In view of the said reasons it has requested tocondone the delay vide its application under consideration. 2.The assessee trust was issued letter dated 2.4.2019to show cause as to why the application for condonationshould not be rejected as no genuine hardships is shownwhich prevented it from filing Form 10 on time. It wasrequested to file the reply on 15.4.2019. The AR of the assessee on 15.4.2019 filed written submission to theshow-cause letter in Dak. In its reply it has reiterated thefacts mentioned in the original application. Additionally itstated that the work of filing of Income Tax Return and otherrelated forms were entrusted to a Tax consultant who didnot file Form 10 due to ignorance. If condonation is notgranted then it will lead to high demand resulting intoshortfall of funds for achieving the objects of the trust anddevelopment of the society also. 2.The assessee trust was issued letter dated 2.4.2019to show cause as to why the application for condonationshould not be rejected as no genuine hardships is shownwhich prevented it from filing Form 10 on time. It wasrequested to file the reply on 15.4.2019. The AR of the assessee on 15.4.2019 filed written submission to theshow-cause letter in Dak. In its reply it has reiterated thefacts mentioned in the original application. Additionally itstated that the work of filing of Income Tax Return and otherrelated forms were entrusted to a Tax consultant who didnot file Form 10 due to ignorance. If condonation is notgranted then it will lead to high demand resulting intoshortfall of funds for achieving the objects of the trust anddevelopment of the society also. 3.On going through the records it has been noticed thatthe application has been filed by CNK & Associates LLP,Chartered Accountants, Vadodara for the assessee Trustand also the submission filed in Dak on 15.4.2019 incompliance to the notice issued by this office. However, nosuch authorization for and on behalf of the assessee Trusthas been filed in favour of CNK Associates LLP, CharteredAccountants. Thus, technically also the petition does notsurvive for consideration as the above said CA firm has notbeen authorized by the assessee to act in the matter underconsideration. 4.Without prejudice to the above, on merits theapplication of the assessee Trust is decided on merits asunder. From the details available on record it is seen thatreturn of income for A.Y. 2014-15 was filed on 27.9.2014which turned out defective. Thereafter, it filed revised returnon 22.11.2014 which is processed u/s 143(1) on 14.1.2016resulting into demand of Rs.2,17,210/-. After receipt ofrecovery letter dated 26.12.2018, the assessee e-filed Form 10 for claiming exemption u/s 11(2) of the Act forRs.17,50,000/- on 11.2.2019 which is after 37 months fromthe processing of Return of Income. The assessee in its replyfiled on 15.4.2019 has failed to prove genuine hardship onaccount of which it could not file Form no.10 on time. Asstated by them, the trust is running various educational andhealth centres for providing help to the needy and poorpersons since its inception i.e. from 1987, means trust isvery old and well aware about the legal provisions of I.T.Act. This was not the new provision which came to beimplemented first time in the year under consideration. 5.The assessee's contention that the income tax workwas handed over to a Tax Consultant who was not havingexposure in the area of work and he had not filed the Form10, is found unsubstantiated. No such details and evidenceshave been placed on record to support said contention.Further it cannot be the reasonable cause to accept thecondonation petition for such a huge period of almost 5years. Moreover, the assessee has not submitted anydetails and evidences showing that the provisions of section11(5) r.w.s. 11(2) are fully complied with more particularlythe investment of accumulated funds was in specifiedmodes only. Thus compliance of the provisions of section11(5) are not proved by the assessee. Even no details of theutilization of accumulated funds for the specified objectshave been placed on record by the assessee. In this regardCBDT has issued a circular no.273 dated 3.6.1980 wherebysome of the following conditions are to be fulfilled by theassessee for condonation of delay. (b)That the failure to give notice to the Income-Tax Officerunder section 11(2) of the Act and investment of the moneyin the prescribed securities was due only to oversight. (c)That the trustees or the settler have not been benefitedby such failure directly or indirectly. (d)That the trust agrees to deposit its funds in theprescribed securities prior to the issue of the Governmentsanction extending the time under section 11(2); and (b)That the failure to give notice to the Income-Tax Officerunder section 11(2) of the Act and investment of the moneyin the prescribed securities was due only to oversight. (c)That the trustees or the settler have not been benefitedby such failure directly or indirectly. (d)That the trust agrees to deposit its funds in theprescribed securities prior to the issue of the Governmentsanction extending the time under section 11(2); and The assessee has not given such particulars and evidencesto show that above conditions are duly fulfilled. Thus thepre-conditions of said circular does not get fulfilled. 6.In view of the above and after having considered thefacts and in exercise of the powers conferred on me u/s119(2)(b) of the Act, I hereby reject the application forcondonation of delay in filing the Form No.10 for the A.Y.2014-15.” 27.Mr.Vora, the learned counsel is right in his submissionthat a fair and dispassionate view of the facts ought to havepersuaded the respondent, who possesses wide discretion in thematter under Section 119 of the Act, to condone the delay andallow the assessee to avail the said exemption under Section 12of the Act being a public charitable trust. 28.We should look into the position of law as regards thesubject matter of this writ-application : (i)In Artist Tree Pvt. Ltd. vs. Central Board of Direct Taxesand others, (2014) 369 ITR 691 (Bombay). The relevantparagraphs 11 to 14 and 23 of the said judgment are quotedbelow for ready reference : “11. The expression 'genuine hardship' came up forconsideration of the Supreme Court in the case ofB.M.Malani (supra), wherein, by reference to New CollinsConcise English Dictionary, the Supreme Court accepted theposition that "genuine" means not fake or counterfeit, real,not pretending (not bogus or merely a ruse). Further, agenuine hardship would, inter alia, mean a genuinedifficulty. The ingredients of genuine hardship, must bedetermined keeping in view the dictionary meaning thereofand legal conspectus attending thereto. For the saidpurpose, another well known principle, namely, that aperson cannot take advantage of his own wrong, may alsohave to be borne in mind. Compulsion to pay any unjustdues per se would cause hardship. But a question as towhether the default in payment of the amount was due tocircumstances beyond the control of the assessee, alsobears consideration. 12. In the case of R. Seshammal (supra), the Madras HighCourt was pleased to observe as under (page 187 of 237ITR): “This is hardly the manner in which the State isexpected to deal with the citizens, who in their anxietyto comply with all the requirements of the Act paymonies as advance tax to the State, even though themonies were not actually required to be paid by themand there after seek refund of the monies so paid bymistake after the proceedings under the Act aredropped by the authorities concerned. The State is notentitled to plead the hyper technical plea of limitationin such a situation to avoid return of the amounts.Section 119 of the Act vests ample power in the Boardto render justice in such a situation. The Board hasacted arbitrarily in rejecting the petitioner's request forrefund.” 13. In the case of Sitaldas Motwani (supra), this court hasheld that the expression "genuine hardship" used in section119(2)(b) of the said Act should be construed liberally,particularly in matters of entertaining of applicationsseeking condonation of delay. This court was pleased toobserve as under (page 228 of 323 ITR): “The phrase 'genuine hardship' used in section 119(2)(b) should have been construed liberally even whenthe petitioner has complied with all the conditionsmentioned in Circular dated October 12, 1993. TheLegislature has conferred the power to condone delayto enable the authorities to do substantive justice tothe parties by disposing of the matters on the merits.The expression 'genuine' has received a liberal 13. In the case of Sitaldas Motwani (supra), this court hasheld that the expression "genuine hardship" used in section119(2)(b) of the said Act should be construed liberally,particularly in matters of entertaining of applicationsseeking condonation of delay. This court was pleased toobserve as under (page 228 of 323 ITR): “The phrase 'genuine hardship' used in section 119(2)(b) should have been construed liberally even whenthe petitioner has complied with all the conditionsmentioned in Circular dated October 12, 1993. TheLegislature has conferred the power to condone delayto enable the authorities to do substantive justice tothe parties by disposing of the matters on the merits.The expression 'genuine' has received a liberal meaning in view of the law laid down by the apexcourt referred to hereinabove and while consideringthis aspect, the authorities are expected to bear inmind that ordinarily the applicant, applying forcondonation of delay does not stand to benefit bylodging its claim late. Refusing to condone delay canresult in a meritorious matter being thrown out at thevery threshold an cause of justice being defeated. Asagainst this, when delay is condoned the highest thatcan happen is that a cause would be decided on themerits after hearing the parties. When substantialjustice and technical considerations are pitted againsteach other, the cause of substantial justice deserves tobe preferred for the other side cannot claim to have avested right in injustice being done because of a non-deliberate delay. There is no presumption that delay isoccasioned deliberately, or on account of culpablenegligence, or on account of mala fides. A litigant doesnot stand to benefit by resorting to delay. In fact heruns a serious risk. The approach of the authoritiesshould be justice oriented so as to advance the causeof justice. If refund is legitimately due to the applicant,mere delay should not defeat the claim for refund.” 14. In the case of Bombay Mercantile Co-operative Bank Ltd.(supra), this court again observed that it is well settled thatin matters of condonation of delay highly pedantic approachshould be eschewed and a justice-oriented should beadopted. It also observed that a party should not be made tosuffer on account of technicalities. 23. In the light of the aforesaid discussion, we are of theopinion that an acceptable explanation was offered by thepetitioner and a case of genuine hardship was made out.The refusal by the Central Board of Direct Taxes to condonethe delay was a result of adoption of an unduly restrictiveapproach. The Central Board of Direct Taxes appears tohave proceeded on the basis that the delay was deliberate,when from the explanation offered by the petitioner, it isclear that the delay was neither deliberate nor on account ofculpable negligence or any mala fides. Therefore, theimpugned order dated May 16, 2006, made by the CentralBoard of Direct Taxes refusing to condone the delay in filingthe return of income for the assessment year 1997-98 isliable to be set aside.” (ii)In Jay Vijay Express Carriers vs. Commissioner of IncomeTax-III, (2013) 34 taxmann.com.61 (Gujarat), in relevantparagraph 16 of the said judgment, this Court held as under : “16. In our opinion, in the present case, there would begenuine hardship, if the time limit is not extended asotherwise, the entire claim of Rs.17,84,323/- would bedestroyed. The petitioner would neither get deduction in theassessment year 2005-06 nor in the year 2008- 09 as perthen prevailing Section 40(a)(ia) of the Act. In our opinion,the petitioner was neither lethargic nor lacking in bona fidesin making the claim beyond the period of limitation, whichshould have a relevance to the desirability and expedience (ii)In Jay Vijay Express Carriers vs. Commissioner of IncomeTax-III, (2013) 34 taxmann.com.61 (Gujarat), in relevantparagraph 16 of the said judgment, this Court held as under : “16. In our opinion, in the present case, there would begenuine hardship, if the time limit is not extended asotherwise, the entire claim of Rs.17,84,323/- would bedestroyed. The petitioner would neither get deduction in theassessment year 2005-06 nor in the year 2008- 09 as perthen prevailing Section 40(a)(ia) of the Act. In our opinion,the petitioner was neither lethargic nor lacking in bona fidesin making the claim beyond the period of limitation, whichshould have a relevance to the desirability and expedience for exercising such power. Before proceeding further we maycaution that undoubtedly such powers are not to beexercised in routine manner to extend limitation provided bythe Act for various stages. We are conscious that suchroutine exercise of powers would neither be expedient nordesirable, since the entire machinery of tax calculation,processing of assessment and further recoveries or refunds,would get thrown out of gear, if such powers are routinelyexercised without considering its desirability andexpedience to do so for avoiding genuine hardship. In thepresent case, however, considering special facts, we are ofthe opinion that the Commissioner ought to have exercisedsuch powers. It is true that the Appellate Commissionerrecorded that the petitioner did not remain present in theappellate proceedings. However that by itself would nottake away the petitioner's case for genuine hardship norcontrary to what is vehemently contended before us by thecounsel for the Revenue, convince us to hold that filing ofrevised return beyond limitation lacked bona fides.” (iii)In the case of State of Jharkhand and others vs. AmbayCements and another, (2005 Sales Tax Cases Vol.129). Therelevant extract of the said judgment is quoted from the HeadNote below for ready reference : “An exception or an exempting provision in a taxing statuteshould be construed strictly. If the condition under which anexemption is granted stands changed on account of anysubsequent event the exemption would not operate. (seeparas 23 and 24) Whenever the statute prescribes that a particular act is to bedone in a particular manner and also lays down that failureto comply with the said requirement leads to severeconsequences, such requirement would be mandatory. If thestatute provide that a particular thing should be done, itshould be done in the manner prescribed and not in anyother way (see para 26).” (iv)In the case of B.M.Malani vs. Commissioner of Income Taxand another, (2008) 219 CTR 313), the Court observed : “8. The term 'genuine' as per the New Collins ConciseEnglish Dictionary is defined as under : “'Genuine' means not fake or counterfeit, real, notpretending (not bogus or merely a ruse).” For interpretation of the aforementioned provision, theprinciple of purposive construction should be resorted to.Levy of interest although is statutory in nature, inter alia forrecompensating the Revenue from loss suffered bynon-deposit of tax by the assessee within the time specifiedtherefor. The said principle should also be applied for thepurpose of determining as to whether any hardship hadbeen caused or not. A genuine hardship would, inter alia,mean a genuine difficulty. That per se would not lead to aconclusion that a person having large assets would never bein difficulty as he can sell those assets and pay the amountof interest levied. “'Genuine' means not fake or counterfeit, real, notpretending (not bogus or merely a ruse).” For interpretation of the aforementioned provision, theprinciple of purposive construction should be resorted to.Levy of interest although is statutory in nature, inter alia forrecompensating the Revenue from loss suffered bynon-deposit of tax by the assessee within the time specifiedtherefor. The said principle should also be applied for thepurpose of determining as to whether any hardship hadbeen caused or not. A genuine hardship would, inter alia,mean a genuine difficulty. That per se would not lead to aconclusion that a person having large assets would never bein difficulty as he can sell those assets and pay the amountof interest levied. The ingredients of genuine hardship must be determinedkeeping in view the dictionary meaning thereof and the legalconspectus attending thereto. For the said purpose, anotherwell-known principle, namely, a person cannot takeadvantage of his own wrong, may also have to be borne inmind. The said principle, it is conceded, has not beenapplied by the Courts below in this case, but we may takenote of a few precedents operating in the field to highlightthe aforementioned proposition of law. (See PriyankaOverseas (P) Ltd. & Anr. Vs. Union of India & Ors.1991Suppl.(1)SCC 102, para 39, Union of India & Ors. Vs.Maj.Gen.(Retd.) Madan Lal Yadav (1996)4 SCC 127 at 142,paras 28 and 29, Ashok Kapil Vs. Sana Ullah (dead) & Ors.(1996) 6 SCC 342 at 345, para 7, Sushil Kumar vs. RakeshKumar (2003) 8 SCC 673 at 692, para 65, first sentence,Kusheshwar Prasad Singh vs. State of Bihar & Ors. (2007)11 SCC 447, paras 13, 14 and 16).” 29.Section 119 of the Act is couched in very wide terms. Thesame is quoted below for ready reference : Instructions to subordinate authorities: “119. (1) the Board may, from time to time, issue suchorders, instructions and directions to other income- taxauthorities as it may deem fit for the proper administrationof this Act, and such authorities and all other personsemployed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: xxx xxx xxx (2) Without prejudice to the generality of the foregoingpower:- (a) xxx xxx xxx (b) the Board may, if it considers it desirable or expedient soto do for avoiding genuine hardship in any case or class ofcases, by general or special order, authorize any income-taxauthority, not being a Commissioner (Appeals) to admit anapplication or claim for any exemption, deduction, refund orany other relief under this Act after the expiry of the periodspecified by or under this Act for making such application orclaim and deal with the same on merits in accordance withlaw:” 30.We may also refer to a decision of the Karnataka HighCourt in the case of Dr. (Smt.) Sujatha Ramesh vs. CentralBoard of Direct Taxes, New Delhi, (2017)87 taxmann.com 228(Karnataka), wherein the Court has observed as under : “12. It is true that the so called reasons assigned by therespondent Central Board of Direct Taxes (CBDT) in theimpugned order, on the face of it, do not appear to bewhimsical or arbitrary reasons and it is equally true thatsuch investment could be made by assessee very wellbefore the cut off date also when she was physicallypresent in India or even when she had gone back to USA on20th February 2013. Nonetheless, the delay of six months in 30.We may also refer to a decision of the Karnataka HighCourt in the case of Dr. (Smt.) Sujatha Ramesh vs. CentralBoard of Direct Taxes, New Delhi, (2017)87 taxmann.com 228(Karnataka), wherein the Court has observed as under : “12. It is true that the so called reasons assigned by therespondent Central Board of Direct Taxes (CBDT) in theimpugned order, on the face of it, do not appear to bewhimsical or arbitrary reasons and it is equally true thatsuch investment could be made by assessee very wellbefore the cut off date also when she was physicallypresent in India or even when she had gone back to USA on20th February 2013. Nonetheless, the delay of six months in the circumstances in which it occurred, especially, in view ofthe fact that the investment condition was undisputably metby the assessee could have been condoned taking ajudicious and holistic view of the facts. The wide powers ofthe Central Board of Direct Taxes or other higher authoritiesof the Department to whom such powers can be delegatedunder Section 119 of the Act, need not always take only apro revenue approach in such matters. Their approach insuch cases should be equitious, balancing and judiciouswhich should reflect the application of mind to the facts ofthe case and before denying the genuine claim of theassessee on the grounds of mere delay in making suchclaim, something more than the user of innocuous terms asemployed in the present case, should be forthcoming.Technically, strictly and literally speaking, the Board mightbe justified in denying the exemption from capital gains taxby rejecting such condonation application, but an assessee,who substantially satisfies the condition for availing suchexemption should not be denied the same, merely on the barof limitation, especially, when the legislature has conferredwide discretionary powers to condone such delay on thehighest executive authority of the Central Board of DirectTaxes under the Act. 13. The general and wide powers given to the Board in thisregard, “if it considers it desirable or expedient so to do foravoiding genuine hardship in any case.....”, not only giveswide powers to the Board, but confers upon it a obligation toconsider facts relevant for condonation of delay as well asthe merit of the claim simultaneously. If the claim of exemption or other claim on merits is eminently a fit case formaking such claim, it should not normally be defeated onthe bar of limitation, particularly, when the delay or the timeperiod for which condonation is sought is not abnormallylarge. It will of course depend upon the facts of the eachcase, where such a time period or the merit of the claimdeserves such exercise of discretion in favour of theassessee under Section 119(2)(b) of the Act or not andtherefore, no straight jacket formula or guidelines can belaid down in this regard. However, such orders passed bythe Central Board of Direct Taxes being a quasi-judicialorder is always open to judicial review by the higherconstitutional courts. If the good conscience of the Courts ispricked, even though such orders rejecting the claims on thebar of limitation may appear to be prima facie tenable, theCourts may exercise their jurisdiction to set aside suchorders and allow the claims on merits, setting aside the barof limitation. 14. The present case is one of such nature, where the Courtfinds that the substantial conditions for claiming theexemption from capital gain tax stood satisfied and theprescribed investment was made by the assessee in theBonds of the National Highways Authority, for the minimumlock-in period of three years also is an undisputed fact, andtherefore, the delay in making such investment of sixmonths deserved to be condoned, in view of the fact that,the assessee-petitioner, a Doctor by profession wastraveling from India to USA a long distance country whereshe normally resided and came to India not only to meet her 14. The present case is one of such nature, where the Courtfinds that the substantial conditions for claiming theexemption from capital gain tax stood satisfied and theprescribed investment was made by the assessee in theBonds of the National Highways Authority, for the minimumlock-in period of three years also is an undisputed fact, andtherefore, the delay in making such investment of sixmonths deserved to be condoned, in view of the fact that,the assessee-petitioner, a Doctor by profession wastraveling from India to USA a long distance country whereshe normally resided and came to India not only to meet her family members, but to sell the immoveable propertybelonging to her and sought to avail the genuine exemptionfrom such tax liability upon making the investment in theprescribed investment in the form of Bonds of Infrastructurewhich she did make in the National Highways Authority.” 31.We may also refer to and rely upon a decision of the DelhiHigh Court in the case of G.V.Infosutions Pvt. Ltd. vs. DeputyCommissioner of Income Tax, Circle 10(2) and others, reportedin (2019) 261 taxmann.com 482 (Delhi). We may quote therelevant observations thus : “8. The rejection of the petitioner's application under Section119(2)(b) is only on the ground that according to the ChiefCommissioner's opinion the plea of omission by the auditorwas not substantiated. This court has difficulty tounderstand what more plea or proof any assessee couldhave brought on record, to substantiate the inadvertence ofits advisor. The net result of the impugned order is in effectthat the petitioner's claim of inadvertent mistake is sought tobe characterised as not bonafide. The court is of the opinionthat an assessee has to take leave of its senses if itdeliberately wishes to forego a substantial amount as theassessee is ascribed to have in the circumstances of thiscase. "Bonafide" is to be understood in the context of thecircumstance of any case. Beyond a plea of the sort thepetitioner raises (concededly belatedly), there can notnecessarily be independent proof or material to establishthat the auditor in fact acted without diligence. The petitioner did not urge any other grounds such as illness ofsomeone etc., which could reasonably have beensubstantiated by independent material. In thecircumstances of the case, the petitioner, in our opinion, wasable to show bonafide reasons why the refund claim couldnot be made in time. 9. The statute or period of limitation prescribed in provisionsof law meant to attach finality, and in that sense arestatutes of repose; however, wherever the legislatureintends relief against hardship in cases where such statuteslead to hardships, the concerned authorities - includingRevenue Authorities have to construe them in a reasonablemanner. That was the effect and purport of this court'sdecision in Indglonal Investment & Finance Ltd. (supra).This court is of the opinion that a similar approach is to beadopted in the circumstances of the case.” 32.Having given our due consideration to all the relevantaspects of the matter, we are of the view that the approach in thecases of the present type should be equitious, balancing andjudicious. Technically, strictly and liberally speaking, therespondent might be justified in denying the exemption underSection 12 of the Act by rejecting such condonation application,but an assessee, a public charitable trust past 30 years whosubstantially satisfies the condition for availing such exemption,should not be denied the same merely on the bar of limitationespecially when the legislature has conferred wide discretionarypowers to condone such delay on the authorities concerned. 32.Having given our due consideration to all the relevantaspects of the matter, we are of the view that the approach in thecases of the present type should be equitious, balancing andjudicious. Technically, strictly and liberally speaking, therespondent might be justified in denying the exemption underSection 12 of the Act by rejecting such condonation applicatio