A Non-Resident Indian can be excused from filing delays under specific provisions when genuine hardship due to exceptional circumstances like a pandemic is shown.

JUDGMENT :

PRANAV TRIVEDI, J.

1. Heard learned advocate Mr.Vijay Patel for the petitioner and learned Senior Standing Counsel Mr. Varun Patel for the respondent.

2. Rule returnable forthwith. Learned Senior Standing Counsel Mr.Varun Patel, waives service of notice of rule for and on behalf of the respondent. Having regard to the controversy involved in this petition, with the consent of the learned advocates for the respective parties, the matter is taken up for final hearing.

3. By this petition under Articles 226/227 of the Constitution of India, the petitioner prays for quashing and setting aside the order dated 16.06.2025 passed under Sec.119(2)(b) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’ for short) for the Assessment Year 2021-22.

4. The brief facts leading to filing of the present writ petition are as under:

4.1 The petitioner is an individual and a Non-Resident Indian (N.R.I) residing permanently in Nairobi since the year 1965. During the Assessment Year 2021-22, the petitioner had sold the residential plot No.79 at Gulmohar Residential Enclave on 21.05.2020. The plot was jointly owned by the petitioner and his wife. The consideration for sale of the plot was Rs.1,12,87,500/-. It was during this year that the petitioner earned income by way of long term capital gain and also by way of interest.

4.2 It is the case of the petitioner that the purchaser of the property deducted tax at source of Rs.12,91,290/- from the amount of consideration and deposited the same with the Income Tax Department on 31.03.2020 and also filed the TDS return.

4.3 It is the case of the petitioner that the tax deducted at source is reflected in Form 26AS in the Assessment Year 2020-21 instead of Assessment Year 2021-22.

4.4 It is further the case of the petitioner that the transactions took place on 21.05.2020 and the petitioner left India on 23.06.2020. That was the COVID period and due to travel restrictions, the petitioner could not visit India for the purpose of filing of Return of Income. It was under these circumstances that the petitioner was unable to file original Return of Income for the Assessment Year 2021-22 within due date as prescribed under Sec.139(5) of the Act.

4.5 It was in this context that the petitioner preferred an application under Sec.119(b) of the Act praying for condoning the delay caused in filing of Return of Income for the Assessment Year 2021-22. The application was filed on 28.11.2024. During the course of hearing, the respondent issued notice to file written submission as well as an opportunity of personal hearing was granted to the petitioner. The petitioner filed its reply on 24.12.2024. However, by way of order dated 16.06.2025, the application of the petitioner came to be rejected which is now impugned in the present writ petition.

5. Mr.Vijay Patel, learned advocate for the petitioner has submitted that there was genuine hardship on the part of the petitioner, and therefore, the impugned order dated 16.06.2025 is perverse. The case of the petitioner clearly falls within the ambit of four corners of Sec.119 of the Act. The petitioner could not file his Return of Income due to genuine hardship caused by COVID-19 pandemic. Even this Court, in catena of decisions has allowed the application preferred by the assessee under Sec.119(2)(b) of the Act which were related to filing of Return of Income during the COVID-19 pandemic. In wake of such submissions, Mr.Patel, learned advocate for the petitioner, has requested to allow the present writ petition.

6. Per Contra, Mr.Varun Patel learned Senior Standing Counsel for the respondent, would controvert the fact that the issue has arisen during the COVID-19 pandemic. However, it was contended that the impugned order is passed in accordance with the jurisdiction vested under Sec.119(2)(b) of the Act. It was submitted by Mr.Patel, learned Senior Standing Counsel that the petitioner is not able to prove genuine hardship and that inconvenience cannot be equated w