ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)

1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Mr. Parimalsinh Parmar for the petitioner and learned Senior Standing Counsel Mr. Maunil Yajnik for the respondent.

2. Rule, returnable forthwith. Learned Senior Standing Counsel Mr. Maunil Yajnik, waives service of notice of rule for and on behalf of the respondent.

3. Since a short issue is involved, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing, for final disposal.

4. By way of the present petition, the petitioner has assailed the order dated 03.01.2024 passed by the Respondent under section 119(2)(b) of The Income Tax Act, 1961 (hereinafter referred to as "the Act" for the short) rejecting the application moved by the Petitioner for condonation of delay in filing Form 10-IC for the Assessment Year 2022-23 (hereinafter referred to as "year under consideration").

5. The brief facts giving rise to the filing of the present petition are as under:

5.1 The petitioner company was incorporated on 10.12.2019 and is engaged in "Healthcare & Lifesciences" industry. The petitioner has been recognized as "start-up" by the Department for Promotion of Industry and Internal Trade vide Certificate No. DIPP80620 dated 28.05.2021. The petitioner, thereafter, moved an application in August 2021 before the Inter-Ministerial Board of Certification (hereinafter referred to as "the Board") for getting a certificate of eligible business, as Act) as envisaged under section 80-IAC of the Act.

5.2 Books of accounts of the petitioner for the year under consideration have been audited and Tax Audit Report was duly uploaded on 28.09.2022.

5.3 The Board, during its 66th meeting held on 07.10.2022, decided applications filed by various start-ups (including the petitioner) for getting requisite certificate. However, application filed by the petitioner was rejected solely on the count that Director of the petitioner has majority shareholding in the Herald groups of company. The said decision was communicated to the petitioner vide email dated 21.10.2022.

5.4 After the decision of the Board, the petitioner took opinion of professionals in the field as regards further course of action. Based on such advice, the petitioner initiated efforts for gathering funds for payment of tax for the year under consideration. Eventually, self-assessment tax under section 140A of the Act aggregating to Rs.1,39,77,790/- was paid by the petitioner in four installments during the period between 20.12.2022 and 30.12.2022. The petitioner, in order to avail benefit envisaged under section 115BAA of the Act (i.e. computation of "tax" at "22%" as against "normal tax rate"), electronically filed the prescribed form i.e. Form 10-IC (application for exercise of option under sub-section 5 of section 115BAA of the Act) on 30.12.2022. The petitioner, on the very same day (i.e. 30.12.2022), filed return of income for the year under consideration whereby tax liability was computed by availing benefit envisaged under section 115BAA of the Act.

5.5 The return of income for the year under consideration was processed vide intimation under section 143(1) of the Act dated 26.06.2023 as per which, benefit of section 115BAA of the Act was denied i.e. tax was computed at normal rate.

5.6 The petitioner, vide letters dated 25.10.2023, 21.12.2023 and 25.12.2023, pointed out the facts in relation to the application filed under section 119(2)(b) of the Act for the year under consideration, and requested to condone the delay in filing FORM 10-IC. However, vide order dated 03.01.2024, passed under section 119(2)(b) of the Act, the application of the petitioner has been rejected on the ground that the petitioner’s case cannot be considered as a case of genuine hardship.

6. Learned Senior Counsel Mr. Tushar Hemani appearing for learned advocate Mr. Parimalsinh Parmar for the petitioner submitted that there was a "re