The court held that genuine hardship due to pandemic restrictions justified the condonation of delay in filing the return of income under Section 119(2)(b) of the Income Tax Act.

JUDGMENT :

BHARGAV D. KARIA, J.

1. Heard learned advocate Mr. Anand B.Gogia for the petitioner and learned Senior Standing Counsel Mr. Varun K. Patel for the respondent.

2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 03.03.2023 passed by the Commissioner of Income Tax, Ahmedabad, rejecting the application dated 15.07.2022 filed by the petitioner under section 119(2)(b) of the Income Tax Act, 1961 (For short “the Act”) for condonation of delay in filing the return of income for the Assessment Year 2020-2021 and credit of tax deducted at source of Rs. 5,24,532/- and refund of TDS of Rs.5,07,790/-.

3. Brief facts of the case are that the petitioner is a non-resident Indian staying at United States of America. The petitioner travelled to India during the period from 13.12.2019 to 08.01.2020. The petitioner sold property being N.A. Land of Plot No.12, land admeasuring about 168.33 sq. mtrs, Plot No.21 land admeasuring 204.35 sq. mtrs and Plot No.22 land admeasuring 204.35 sq. mtrs situated at Village Vajdi (Virda) District and Sub- District Rajkot, for a consideration of Rs.1,90,00,000/- to M/s. Ashutosh Builders on 14.08.2019 during the financial year 2019-2020.

4. The above purchaser of the property deducted TDS of Rs. 5,09,600/- from the amount of sale consideration and deposited the same with the Income Tax department on 11.06.2022 and filed TDS return and hence credit of the same was reflected in the Form No. 26 AS for the Assessment Year2020-2021 after 11.06.2022.

5. The petitioner therefore, could not file the return for Assessment Year 2020- 2021 relevant to Financial year 2019-2020 as there was no credit of TDS reflected in Form 26 AS which was deducted by the purchaser of the property. It is the case of the petitioner that the petitioner could not travel to India due to Covid-19 pandemic situation from 13.05.2020 onwards as the petitioner was not having a valid VISA during the said period.

6. It is also the case of the petitioner that mother of the petitioner Smt. Hemlataben Rasiklal Chandrani passed away on 18.05.2022 in India and therefore, the petitioner could come to India only on 31.05.2022. The petitioner therefore, could not file the return within the prescribed time limit for the Assessment Year 2020-2021. The petitioner accordingly filed the application to condone the delay in filing the return for Assessment Year 2020-2021 under section 119(2)(b) of the Act so as to claim the refund of Rs. 5,07,790/-.

7. During the course of proceedings under section 119(2)(b) of the Act, notice dated 10.01.2023 was issued to provide an opportunity of hearing to the petitioner. The petitioner filed the written submissions and documentary evidence in response to the notice vide reply dated 17.01.2023 through email.

8. The respondent thereafter considering the submissions of the petitioner rejected the application to condone the delay for filing the return of income for Assessment Year 2020-2021 observing as under:

“5. The contention of the assessee is not found tenable. The assessee has submitted that he has sold property in financial year 2019-20 and buyer has deducted TDS. He has also submitted that bank has deducted TDS on interest income. The assessee was well aware that TDS has been deducted on sale transaction of property and on interest income earned from the Bank. The assessee was in possession of sale deed, wherein details of TDS was available. However, the assessee has not filed return of income in time. The assessee with his application as well as during proceedings has not submitted any proof, which proves that the assessee had followed with the buyer in respect of TDS credit. Further the assessee has also not submitted relevant details in respect of sale transaction and supporting evidence in respect of calculation of capital gain. The assessee has also not submitted details of determination of indexed cost, which establish the correctness of income determinati