2024:BHC-OS:6536-DB Digitally s Si Hgn Ae Md B b Hy AVI 1/6 430-oswp-1689-2024.doc SHAMBHAVI NILESH NILESH SHIVGAN SHIVGAN Date:

2024.04.23

13 :44:13 IN THE HIGH COURT OF JUDICATURE AT BOMBAY +0530 ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1689 OF 2024 Al Jamia Mohammediyah Education Society 6/8A Hazarat Terrace Annexe, Sankli Street, Byculla, Mumbai 400 008.

…Petitioner PAN NO.AAATA5693D Versus

1. Commissioner Of Income Tax (Exemptions)

Mumbai,Room No.601, 6^th Floor, Cumballa Hill, MTNL Building, Peddar Road, Dr. Gopalrao Deshmukh Marg, Mumbai-400 026

2.

Union of India, Through the Secretary, Ministry of Finance, North Block, …Respondents New Delhi-110 001.

Mr. Sham V. Walve, with Mr. Tanzil Padvekar and Ms. Tejal Kharkar, for Petitioner.

Mr. Dinesh Gulabani, with Mr. Prathmesh Bhosle, for Respondent-

Revenue.

CORAM: K. R. SHRIRAM &

DR. NEELA GOKHALE, JJ.

DATED: 15^th APRIL 2024 ORAL JUDGMENT:- (Per K.R.Shriram, J.)

1. Rule. By consent, rule made returnable forthwith.

2. Petitioner, a charitable trust, which is registered under the Bombay Public Trusts Act, 1950 filed its return of income (“ROI”) for Assessment Year (“AY”) 2016-17 on 6^th September 2016 declaring income at ‘Nil” and claiming a refund of Rs.70,710/-. Petitioner’s accounts were audited and the audit report for AY 2016-17 was also filed. Along with the ROI, Petitioner had to file Form No.10B, which Petitioner did not file. It was filed only on 15^th February 2020, with a delay of about 1257 days.

3. Petitioner filed an application under Section 119(2)(b) of the Income Tax Act, 1961 (“the Act”) for condoning the delay in filing the Form 10B. By an order dated 25^th October 2023, the application for condonation of delay came to be rejected. It is this order, which is impugned in this Petition.

4. In the application, Petitioner explained the cause for delay on the Chartered Accountant/Auditor. According to Petitioner, when it sent Form No.10B to the Department for submission after filing the return, the Departmental staff refused to acknowledge the manual submission and Petitioner was told to file the same online. This explanation was rejected because Petitioner then should have immediately uploaded the Form 10B but waited till 15^th February 2020. Moreover, in view of non-filing of Form 10B, Petitioner’s returns were processed on 17^th March 2018 under Section 143(1) of the Act and Petitioner filed a rectification application only on 24^th January 2020, which was disposed on 18^th June 2020. Admittedly, the Form 10B was filed only on 15^th February 2020, i.e., after filing the rectification application. Respondent No.1 did not accept Petitioner’s explanation of ‘Oversight’ and ‘Inadvertent error’, etc. as ‘Sufficient Cause’ for condoning the delay. It is also observed in the impugned order that when Petitioner has been filing its returns and Form 10B for many years, Petitioner must be very well aware of the rules and regulations and, therefore, the delay cannot be condoned.

5. An affidavit in reply has been filed opposing the delay basically reiterating what is stated in the impugned order. Mr. Gulabani also made his submissions on the basis of the impugned order.

6. Admittedly, Petitioner is a charitable trust. Admittedly, Petitioner has been filing its returns and Form 10B for AY 2015-16, for AY 2017-18 to AY 2021-22 within the due dates. On this ground alone, in our view, delay condonation application should have been allowed because the failure to file returns for AY 2016-17 could be only due to human error. Even in the impugned order, there is no allegation of malafide. As held by the Gujarat High Court in Sarvodaya Charitable Trust v. Income Tax Officer (Exemption)¹, the approach in the cases of the present type should be equitious, balancing and judicious. Technically, strictly and liberally speaking, Respondent No.1 might be justified in denying the exemption by rejecting such condonation application, but an assessee, a public charitable trust with almost over thirty yea