JUDGMENT :

K.R. Shriram, J.

1. Petitioner is a joint venture between M/s R. K. Madhani & Co. and M/s Prakash Engineers & Infraprojects Private Limited. Petitioner was engaged in executing the projects launched by the Municipal Corporation of Greater Mumbai (MCGM).

2. During the assessment year 2016-2017, petitioner paid tax amounting to Rs.91,38,083/- which is also reflected in Form 26AS. Petitioner filed its return of income belatedly on 30th November 2016 under Section 139(4) of the Income Tax Act 1961 (the Act). The due date for filing the income tax return was 30th September 2016. The time to file income tax return had been extended upto 17th October 2016. Hence there was delay of 43 days in filing the return of income.

3. By a letter dated 19th July 2019, petitioner requested respondent no.3, Commissioner of Income Tax-22, to condone the delay in filing the return of income for A.Y.-2016-2017. Documents were submitted in support of their contention. Petitioner explained to respondent no.3 that the delay was due to the concerned person who was entrusted with the work of filing of return being indisposed due to medical reasons. There was also certain other reasons. As there was no response, petitioner by a letter dated 14th August 2019 once again addressed communication to respondent no.3 informing that the return of income filed by petitioner was being shown as invalid since petitioner inadvertently filed the Return of Income as AOP instead of firm. Petitioner requested for rectifying the mistake and filed revised return on 13th August 2019. Respondent no.4 by a letter dated 11th February 2020 sought for various details to which petitioner responded vide letter dated 12th March 2020. Petitioner also requested the delay be condoned and sought refund of Rs.82,13,340/-. Petitioner alongwith letter also submitted income tax return under Section 119(2)(b) of the Act and also sought condonation of delay in filing the return. Respondent no.5 by letter dated 28th May 2020 sought for certain clarifications on petitioner’s application which was provided.

4. By letter dated 26th June 2020, respondent no.5 informed petitioner to submit written submissions on or before 17th September 2020 and if, petitioner wished to be heard in person, an opportunity will be provided to petitioner after the lock down measures due to Covid-19 pandemic situation came to an end. Petitioner by its letter dated 8th July 2020 submitted their written submission and once again prayed for condonation of delay.

5. Petitioner thereafter, received the impugned order dated 24th December 2020 rejecting petitioner’s request for condonation of delay.

6. Before we proceed further, we should note that pursuant to Circular F No.312/22/2015-OT dated 9th June 2015 issued by CBDT, application / claim for amount exceeding Rs. 50 lakhs shall be considered by the Board. We say this because the last sentence in the impugned order dated 24th December 2020 reads; “ This order is passed with the approval of the Member ( TPS & Systems), CBDT.” There is nothing to indicate that Board has considered petitioner’s application. We also find that copy of the impugned order dated 24th December 2020 is sent to, (a) the Principal Chief Commissioner of Income Tax, Mumbai, (b) Principal Commissioner of Income Tax-21, Mumbai, (c) Director of Income Tax, Centralized Processing Cell, Bengaluru, (d) the applicant and (e) the Guard File but it is not sent to the Member on whose approval the said order is supposed to have been passed. In our view, this means the Member has not passed the order but has been passed by the Director. On this ground alone, this order has to be quashed and set aside.

7. Further in paragraph 6 of the impugned order it is stated that the field authorities at Mumbai have also stated that the reasons attributable to the delay in filing of the ROI to one of the partners being abroad was not supported by any evidence. It is unacceptable. Principles of natural justice would require pe