Writ Petition No.9350/2019 1 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Writ Petition No.9350/2019 Shri Laddulal Sharma v/s Principal Commissioner, Income Tax-1 Indore, dated 14.01.2020 Shri P.M Choudhary, learned senior counsel along with Shri Anand Prabhawalkar, learned counsel for petitioner. Ms. Veena Mandlik, learned counsel for respondent. petitioner before this Court, practicing advocate, has filed this present petition being aggrieved by order dated 15.03.2019 passed by Principal Commissioner, Income Tax I, Indore under Section 119(2)(b) of Income Tax Act, 1961 for Assessment Year 2015 16. petitioner's contention is that petitioner is advocate practicing before this Court and is regular income tax payee. subject matter of present writ petition relates to Assessment Year 2015 16 and at relevant point of time, petitioner was serving as Deputy Government Advocate for pleading cases of Government before High Court of Madhya Pradesh, Bench at Indore.. petitioner filed his return of income on 02.12.2015 for assessment year 2015 16 declaring income from salary received from State of Madhya Pradesh as well as income from other sources. due date for filing return for year under consideration was 07.09.2015 (the original date was 31.07.2015 and it was Writ Petition No.9350/2019 2 extended to 07.09.2015). return was filed belatedly by delay of 86 days. contention of petitioner is that there was delay of 86 days and Section 139 (4) of Income Tax Act, 1961 permits assessee to file return who has not filed return within prescribed due date. He is permitted to file return before expiry of one year from end of relevant Assessment Year or before completion of assessment, whichever is earlier. petitioner, as per computation of income, was entitled for refund of Rs.43,590/-. petitioner has further stated that procedure provided for filing electronic return is that after uploading return electronically, assessee is required to forward duly signed acknowledgment generated online to Central Processing Unit of Income Tax Department within 120 days from date of uploading of return and in present case, last date for filing acknowledgment was 01.04.2016. petitioner has further stated that his wife was critically ill and he could not submit acknowledgment to CPC, Banglore within prescribed limit but it was sent after delay of 335 days. CPC, Banglore has received said acknowledgment on 01.03.2017. petitioner's contention is that return was electronically uploaded well within statutory period prescribed for filing belated returns under Section 139(4) of Income Tax Act, 1961 but there was technical default of not sending acknowledgment to CPC, Banglore within 120 Writ Petition No.9350/2019 3 days from date of filing of such return. petitioner has further stated that to meet situation, petitioner has submitted application under Section 119(2)(b) of Income Tax Act, 1961 before Commissioner of Income Tax I on 07.11.2017 and categorically stated that he is 76 years of age and on account of illness of his wife, he was not able to send acknowledgment to CPC within stipulated time. It was also brought to notice of Commissioner that amount of Rs.43,586/- has been deducted as TDS from income received as salary by petitioner and he is entitled for refund. petitioner has filed filed Form 26AS reflecting TDS. petitioner has also placed reliance upon circular issued by CBDT dated 09.06.2015 and his contention is that Principal Commissioner was competent to condone delay as provided under circular where amount of claim is less than Rs.10,00,000/- for any one Assessment Year. petitioner's grievance is that Principal Commissioner has rejected prayer for condonation of delay vide order dated 15.03.2019 stating that no reasonable cause has been provided by petitioner for delay caused in sending ITR-V to CPC, Banglore. petitioner has prayed for following reliefs :- (A) Hon'ble Court may be pleased to issue writ of certiorari and / or any other appropriate writ, direction or order requiring respondents to certify to this Hon'ble Court all records of this case in which impugned order dated 15.03.2019 (Annexure-P/1) has been passed and after examining Writ Petition No.9350/2019 4 legality and / or propriety thereof, quash same. (B) Hon'ble Court may be pleased to issue writ of mandamus and / or any other appropriate writ, direction or order, directing respondent to exercise discretion contemplated u/s 119(2)(b) of Income Tax Act, 1961 and condone delay caused in sending acknowledgment to CPC, Banglore. (C) Any other appropriate writ, direction or order and grant such other appropriate relief which this Hon'ble Court may deem fit in facts and circumstances of case. (D) To award cost of this petition in favour of petitioner. reply has been filed by Income Tax Department and they have admitted in return that Commissioner does have power to condone delay, however, in present case, as reflected from order dated 15.03.2019, petitioner could not prove any circumstances showing genuine hardship in his case and accordingly, application for condonation of delay was rejected. respondent has further stated that scheme does provide for condonation of delay and same is not automatic, however, there has to be genuine and valid reason for condonation of delay. This Court has carefully gone through writ petition as well as reply filed by respondent. In present case, petitioner did submit his return keeping in view Section 139 (4) of Income Tax Act, 1961. return was filed electronically and CPC, Banglore Writ Petition No.9350/2019 5 received duly signed acknowledgment, which was generated online at time of filing of return on 01.03.2017. petitioner was required to submit acknowledgment to CPC, Banglore within 120 days from date of filing of return and on account of fact that petitioner's wife was critically ill, he could not submit acknowledgment to CPC, Banglore within 120 days from date of filing of such return. It is nobody's case that petitioner did not file return keeping in view Section 139 (4) of Income Tax Act, 1961. There was certainly delay and petitioner is aged about 78 years, his wife was critically ill, she was hospitalized for more than two months and he was running from pillar to post for treatment of his wife. Central Board of Direct Taxes, to cater to such contingency, has issued circular dated 09.06.2015 and discretion has been provided to Principal Commissioner to condone delay in such cases. petitioner did mention about illness of his wife, about hospitalization of his wife and in all fairness, delay should have been condoned. It is not case of evasion of income, it is not case where no income tax return was filed, it is only case, in which, Form No.V was not forwarded to CPC, Banglore in prescribed time. return for assessment year 2015 16 was filed on 02.12.2015 and Form No.V was received by CPC, Banglore on 01.03.2017. Reasonable cause was explained in application submitted by petitioner and Principal Commissioner has brushed aside factum of illness of wife of Writ Petition No.9350/2019 6 petitioner by stating that after discharge from hospital, assessee's wife has taken routine treatment and assessee was not prevented from filing return up to March, 2017 under Section 139 (4) of Income Tax Act, 1961. present case is certainly case of genuine hardship to assessee and discretion should have been exercised in favour of assessee. TDS, which assessee was claiming, was in respect of tax deducted at source by State of Madhya Pradesh, as assessee was Government Advocate, and therefore, order dated 15.03.2019 is hereby quashed. assessee's application dated 07.11.2017 for condonation of delay under Section 119(2)(b) of Income Tax Act, 1961 claiming refund of Rs.43,590/- in respect of Assessment Year 2015 16 is allowed. respondent is directed to process case of petitioner for refund, as claimed by assessee, ignoring delay. exercise of processing case and passing final order ignoring delay be concluded within period of three months from date of receipt of certified copy of this order. With aforesaid, present Writ Petition stands allowed. Certified copy, as per rules. (S.C. SHARMA) (SHAILENDRA SHUKLA) JUDGE JUDGE Ravi Digitally signed by Ravi Prakash Date: 2020.02.10 13:22:31 +05'30' Laddulal Sharma v. Principal Commissioner Income-tax-1