# Cell Com Teleservices Pvt. Ltd v. Union Of India & Ors

- **Citation:** (2025) 7 ILRA 613
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-07-17
- **Case number:** Writ Tax No. 278 of 2024
- **Bench:** Shekhar B. Saraf, Praveen Kumar Giri
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/cell-com-teleservices-pvt-ltd-v-union-of-india-ors-53616
- **Pages:** 21

## Headnote

Mr. Manu Ghildyal

Issue for Consideration
The dispute revolves around the interpretation
of "genuine hardship" in the context of the
petitioner seeking to avail the beneficial
concessional tax rate under section 115BAA.
Principal Commissioner of Income Tax(PCIT)
rejected
the
petitioner's
application
for
condonation of delay in filing Form 10-IC for the
Assessment year 2020-21, concluding that the
company was not facing "genuine hardship".

Headnotes
Tax matter-Income Tax Act,1961-Section
119(2)(b)-Rejection
of
Delay
Condonation-The delay was attributed to
the unavailability of the person handling
tax matters due to severe personal
difficulties, including the death of the
family members-The Court quashed the
PCIT order and allowing the petitioner to
file
Form10-IC
and
receive
the
consequential relief.

Held
The court held that the "genuine hardship" must
be construed liberally to ensure an assessee's
substantive right to a beneficial tax provision is
not defeated by a mere procedural lapse-The
requirement to file Form 10-IC prior to the ITR
is not mandatory if genuine hardship is
established for the delay-Impugned order
quashed.(Para 18 to 21) (E-6)

Case law Cited
B.M. Malani Vs Commr. of Income Tax & Anr
(2008) 10 SCC 617; Gujarat Electric Co. Ltd. Vs
CIT [2002] 255 ITR 396; K.S. Bilawala Ors. Vs
Principal Commr. of Income Tax 17, Mumbai &
Ors (Writ Petition (1) No. 32261 of 2023);
Sitaldas K Motwani Vs Dir. Gen. of Income Tax
& Ors (2009) SCC OnLine Bom 2195); R/Special
Civil Application No. 3445 of 2024; Deepak
Pragjibhai Gondaliya Vs Principal Commr. of
Income Tax Vododara 1; Sitaldas K Motwani Vs
Dir. Gen. of Income Tax (International Taxation)
[2010]
187
Taxman
44{=323
ITR
223
(Bombay)}; Bombay Mercantile Co-op. Bank
Ltd., Vs CBDT [2010] 195 Taxman 106{=332
ITR 87 (Bom.); Pankaj Kailash Agarwal Vs Asst.
Commr. of Income Tax [2024] 464 ITR 65
(Bombay); Principal Commr. of Income Tax Vs
Wipro Ltd 446 ITR 1 (SC); MRF Ltd Vs Central
Board of Direct Taxes, New Delhi; Pankaj
Kailash Agarwal Vs Asst. Commr. of Income Tax
& Ors ;2024 SCC OnLine Bom 1025-referred to.
614 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Income Tax Act, 1961
List of Keywords
Principal
Commissioner
of
Income
Tax,
Assessment year; Tax liability; MAT; Income tax
return; Circular No. 9/2015; Range Head;
Genuine
Hardship;
Tax
evasion;
Refund;
Assesee;
Concessional
rate
of
Tax;
Consequential relief.
Case Arising From
Tax matter- WRIT TAX No. - 278 of 2024
From the Judgment and Order dated 17.07.2025
of the High Court of Judicature at Allahabad.
CELL COM TELESERVICES PRIVATE
LIMITED Vs UNION OF INDIA & ORS.

Appearances for Parties
Adv. for Petitioner:
 Mr. Rahul Agarwal, Advocate
Adv. for Respondent:
Mr. Manu Ghildyal, Advocate

## Text

_Characters 0–39,723 of 79,406. This is a partial read: ask again with offset=39723 for what follows._

7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
613
and it had also been irrigated in any of the
fasli year of 1378, 1379 and 1380 fasli but
the same has not been proved and thus, the
impugned order are liable to be set aside.
The land is neither irrigated nor is capable
of yielding two crops and two crops were
not yielded in any of the 1378 fasli, 1379
fasli and 1380 fasli. All these evidence
have been ignored by the respondent Nos.1
and 2.

36. On overall consideration of facts
and circumstances of the entire record, it is
evident that the impugned orders suffer
from apparent illegality and are liable to be
set aside, therefore, they are hereby set
aside. The writ petition succeeds and is
allowed.

37. No order as to costs.
----------
(2025) 7 ILRA 613
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2025
BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE PRAVEEN KUMAR GIRI, J.

Writ Tax No. 278 of 2024

Cell Com Teleservices Pvt. Ltd.
 ...Petitioner
Versus
Union Of India & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Rahul Agarwal

Counsel for the Respondents:
Mr. Manu Ghildyal

Issue for Consideration
The dispute revolves around the interpretation
of "genuine hardship" in the context of the
petitioner seeking to avail the beneficial
concessional tax rate under section 115BAA.
Principal Commissioner of Income Tax(PCIT)
rejected
the
petitioner's
application
for
condonation of delay in filing Form 10-IC for the
Assessment year 2020-21, concluding that the
company was not facing "genuine hardship".

Headnotes
Tax matter-Income Tax Act,1961-Section
119(2)(b)-Rejection
of
Delay
Condonation-The delay was attributed to
the unavailability of the person handling
tax matters due to severe personal
difficulties, including the death of the
family members-The Court quashed the
PCIT order and allowing the petitioner to
file
Form10-IC
and
receive
the
consequential relief.

Held
The court held that the "genuine hardship" must
be construed liberally to ensure an assessee's
substantive right to a beneficial tax provision is
not defeated by a mere procedural lapse-The
requirement to file Form 10-IC prior to the ITR
is not mandatory if genuine hardship is
established for the delay-Impugned order
quashed.(Para 18 to 21) (E-6)

Case law Cited
B.M. Malani Vs Commr. of Income Tax & Anr
(2008) 10 SCC 617; Gujarat Electric Co. Ltd. Vs
CIT [2002] 255 ITR 396; K.S. Bilawala Ors. Vs
Principal Commr. of Income Tax 17, Mumbai &
Ors (Writ Petition (1) No. 32261 of 2023);
Sitaldas K Motwani Vs Dir. Gen. of Income Tax
& Ors (2009) SCC OnLine Bom 2195); R/Special
Civil Application No. 3445 of 2024; Deepak
Pragjibhai Gondaliya Vs Principal Commr. of
Income Tax Vododara 1; Sitaldas K Motwani Vs
Dir. Gen. of Income Tax (International Taxation)
[2010]
187
Taxman
44{=323
ITR
223
(Bombay)}; Bombay Mercantile Co-op. Bank
Ltd., Vs CBDT [2010] 195 Taxman 106{=332
ITR 87 (Bom.); Pankaj Kailash Agarwal Vs Asst.
Commr. of Income Tax [2024] 464 ITR 65
(Bombay); Principal Commr. of Income Tax Vs
Wipro Ltd 446 ITR 1 (SC); MRF Ltd Vs Central
Board of Direct Taxes, New Delhi; Pankaj
Kailash Agarwal Vs Asst. Commr. of Income Tax
& Ors ;2024 SCC OnLine Bom 1025-referred to.
614 INDIAN LAW REPORTS ALLAHABAD SERIES
List of Acts
Income Tax Act, 1961
List of Keywords
Principal
Commissioner
of
Income
Tax,
Assessment year; Tax liability; MAT; Income tax
return; Circular No. 9/2015; Range Head;
Genuine
Hardship;
Tax
evasion;
Refund;
Assesee;
Concessional
rate
of
Tax;
Consequential relief.
Case Arising From
Tax matter- WRIT TAX No. - 278 of 2024
From the Judgment and Order dated 17.07.2025
of the High Court of Judicature at Allahabad.
CELL COM TELESERVICES PRIVATE
LIMITED Vs UNION OF INDIA & ORS.

Appearances for Parties
Adv. for Petitioner:
 Mr. Rahul Agarwal, Advocate
Adv. for Respondent:
Mr. Manu Ghildyal, Advocate

(Delivered by Hon'ble Praveen Kumar
Giri, J.)

1. Heard learned counsel appearing for
both the parties.

2. The present writ petition has been filed
with the following prayer:

"1) Issue a writ, order or direction
in the nature of Certiorari quashing the order
dated 30.01.2024 passed by the Principal
Commissioner of Income Tax, Ghaziabad
(Annexure-1 to the writ petition);

(ii) Issue a writ, order or direction in
the nature of Mandamus directing the Principal
Commissioner of Income Tax, Ghaziabad to
condone the delay in filing Form 10-IC for AY
2020-21 and allow the petitioner to file the
same;

(iii) Issue a writ, order or direction
in the nature of Mandamus directing the
respondent no. 4 to extend consequential
rel58ief by recomputing the tax liability of the
petitioner for AY 2020-21."

3. The brief facts of the case are as under:

i. The petitioner is challenging the
order dated 30.01.2024, passed by the Principal
Commissioner of Income Tax, Ghaziabad
rejecting the application of condonation of
delay filed by the petitioner for condoning the
delay in filing Form 10-IC for assessment year
2020-21. The relevant portion of the impugned
order dated 30.01.2024 is being quoted below:

"The assessee company filed a
Petition u/s 119(2)(b) of the Income Tax Act
1961 dated 29.12.2023 through its director,
which was received in the office on 29.12.2023,
requesting for condonation of delay, in-filing
Form No.10-IC for the A.Y. 2020-21. The
assessee company has stated that it had
prepared the Form No. 10-IC for filing at the
I.T. Portal, but due to the technical glitches it
could not submit at the time of filing of ITR."

2. The petition of the assessee
company
was
forwarded
to
the
Addl.
Commissioner of Income Tax Range-2(1),
Ghaziabad vide letter dated 04.01.2024 for his
comments and report. Vide letter dated
17.01.2024 Addl.CIT Range-2(1), Ghaziabad
has forwarded report of the JAO Concerned.
The Assessing Officer in his report stated that
the assessee company has submitted that the
person in charge of Income Tax matters. Sh.
Anupam Sharma and his family members were
suffering from COVID-19 during the year under
consideration.
On
perusal
of
documents
submitted by the assessee company, it appears
that its claim is correct and genuine. Therefore,
the application for condonation of delay in
filing of Form 10-IC may be accepted.

3. Different view has been taken by
the Range Head, Ghaziabad and stated. that the
assessee company did not file Form No. 10-IC
at the time of filing ITR, which is required to be
filed on or before the due date of filing return of
Income u/s 139(1) of I.T. Act, 1961 and such
7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
615
option once exercised shall apply to subsequent
year. But the assessee did not file the same
within the specified date. The assessee company
has claimed that due to some technical problem
of the I.T. Portal, it could not file the Form 10IC within due date. However, the assessee
company did not file any evidence with regard
to technical problem/glitches of I.T. Portal. The
assessee company does not fulfil the 3rd
condition laid down in the circular no. 6/2022
dated
17.03.2022,
which
is
reproduced
hereunder,

"Form 10-IC is filed electronically
on or before 30.06.2022 or 3 months from the
end of the month in which this circular is
issued, whichever is later."

Therefore, it is recommended that
the condonation application filed by the
assessee company may not be considered..

4. On perusal of records and the
reports of the authorities below, it is noted that
assessee company was not in genuine hardship
and therefore, the condonation application filed
by
the
assessee
company
may
not
be
considered/condoned.

5. The assessee company does not
satisfy the conditions for condonation of delay
u/s 119(2)(b) as stipulated in Circular No.
9/2015
[F.No
312/22/2015-OT]
dated
09.06.2015. Hence, the request for condonation
of delay is hereby rejected"

ii. The petitioner-company filed its
income tax return under Section 139(1) for the
assessment year 2020-21 on 25th November
2020. The total income declared was Rs.
38,91,260/-. The petitioner had filed its return
of income availing the benefit of the newly
introduced Section 115BAA of the Income Tax
Act, 1961 (hereinafter referred to as 'the Act')
by which a concessional rate of 22% was
applied to the total income of an assessee and
the
Minimum
Alternate Tax (hereinafter
referred to as 'MAT') regime was made
inapplicable. The provision of Section 115BAA
of the Act is produced hereinbelow:

"Section 115BAA of The Income
Tax Act, 1961:

(1)
Notwithstanding
anything
contained in this Act but subject to the
provisions of this Chapter, other than those
mentioned under section 115BA and section
115BAB, the income-tax payable in respect of
the total income of a person, being a domestic
company, for any previous year relevant to the
assessment year beginning on or after the 1st
day of April, 2020, shall, at the option of such
person, be computed at the rate of twenty-two
per cent., if the conditions contained in subsection (2) are satisfied:

Provided that where the person fails
to satisfy the conditions contained in subsection (2) in any previous year, the option
shall become invalid in respect of the
assessment year relevant to that previous year
and subsequent assessment years and other
provisions of the Act shall apply, as if the
option had not been exercised for the
assessment year relevant to that previous year
and subsequent assessment years.

(2) For the purposes of sub-section
(1), the total income of the company shall be
computed,-

(i) without any deduction under the
provisions of section 10AA or clause (iia) of
sub-section (1) of section 32 or section 32AD or
section 33AB or section 33ABA or sub-clause
(ii) or sub-clause (iia) or sub-clause (iii) of subsection (1) or sub-section (2AA) or sub-section
(2AB) of section 35 or section 35AD or section
35CCC or section 35CCD or under any
provisions of [Chapter VI-A other than the
provisions of Section 80JJAA or section 80M];

(ii) without set off of any loss carried
forward or depreciation from any earlier
assessment year, if such loss or depreciation is
attributable to any of the deductions referred to
in clause (i);

(iii) without set off of any loss or
allowance for unabsorbed depreciation deemed
616 INDIAN LAW REPORTS ALLAHABAD SERIES
so under section 72A, if such loss or
depreciation is attributable to any of the
deductions referred to in clause (i); and

(iv) by claiming the depreciation, if
any, under any provision of section 32, except
clause (iia) of sub-section (1) of the said
section, determined in such manner as may be
prescribed.

(3)
The
loss
and
depreciation
referred to in clause (ii) and clause (iii) of subsection (2) shall be deemed to have been given
full effect to and no further deduction for such
loss or depreciation shall be allowed for any
subsequent year:

Provided that where there is a
depreciation allowance in respect of a block of
asset which has not been given full effect to
prior to the assessment year beginning on the
1st
day
of
April,
2020,
corresponding
adjustment shall be made to the written down
value of such block of assets as on the 1st day of
April, 2019 in the prescribed manner, if the
option under sub-section (5) is exercised for a
previous year relevant to the assessment year
beginning on the 1st day of April, 2020.

(4) In case of a person, having a Unit
in the International Financial Services Centre,
as referred to in sub-section (1A) of section
80LA, which has exercised option under subsection (5), the conditions contained in subsection (2) shall be modified to the extent that
the deduction under section 80LA shall be
available to such Unit subject to fulfilment of
the conditions contained in the said section.

Explanation. - For the purposes of
this sub-section, the term "Unit" shall have the
same meaning as assigned to it in clause (zc) of
section 2 of the Special Economic Zones Act,
2005.

(5) Nothing contained in this section
shall apply unless the option is exercised by the
person in the prescribed manner on or before
the due date specified under sub-section (1) of
section 139 for furnishing the returns of income
for any previous year relevant to the assessment
year commencing on or after the 1st day of
April, 2020 and such option once exercised
shall apply to subsequent assessment years:

Provided that in case of a person,
where the option exercised by it under section
115BAB has been rendered invalid due to
violation of conditions contained in sub-clause
(ii) or sub-clause (iii) of clause (a), or clause
(b) of sub-section (2) of said section, such
person may exercise option under this section:

Provided further that once the
option has been exercised for any previous
year, it cannot be subsequently withdrawn for
the same or any other previous year."

iii. The petitioner has made this
declaration in its return of income, as well as
the statutorily required Form 3CD (audit
report), which the petitioner was required to
file, however, along with the return of income,
the petitioner did not file the newly introduced
Form 10-IC.

iv. On 24.12.2021, the Centralized
Processing Center issued an intimation order
under Section 143(1) of the Act, wherein a
demand of Rs. 45,89,490/- was raised against
the petitioner for the assessment year 2020-21.
The relevant portion of intimation order dated
24.12.2021 is being quoted below:

" स्थायी खाता संख्याः AACCC1688D ।
भनधावरण
विवः
2020-21
।
पत्र
सन्दिव
संख्याः
CPC/2021/A6/187513353
।
पावती
संः
747236681251120

भनधावरण विव 2020-21 के भलए
आपके केस में मांग भनधावररत की गई है

मााँग
की
राभशः
रू
45,89,490
मांग सन्दिव संॅं: 2021202037030813732C

ITRफामव का रकार भस्थभत
सूचना आदेश की भदनांक
7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
617

ITR6 मूल Private Company
24/12/2021

फाइभलंग की भदनांक

25/11/2020

भनयत भदनांक भवस्ताररत भनयत भदनााँक

15/02/2021 15/02/2021

आयकर भववरणी का भववरण

राभश (रू में)

क्र.सं.

भववरण

ररपोभटिंग
शीिव

करदाता द्वारा
रदान भकया
गया

धारा
143(1) की
गणना
के
अनुसार

01

आय
का
भववरण

कुल
आय

38,91,260

38,91,260

02

कर का
भववरण

राहत के
बाद कर
दाभयत्व

8,90,321

42,06,089

03

ब्याज
और
देय
शुपक

कुल
ब्याज
और
शुपक
(और)

0

9,48,482

04

पूवव
संदत्त
कर

कुल
िुगतान
भकया
गया कर
(अभग्रम
कर
टी
डी एस
टी
सी
9,17.028

5,65,078

एस स्वमूपयांकन
कर)

05

देय कर

कुल देय
राभश

0

45,89,490

एन साईंराज

सहायक आयकर भनदेशक, सी.पी.सी.

बेंगलुरु"

v. Notification No. 06/2022 dated
17.03.2022 had permitted assessee to file Form
10-IC by 30.06.2022. The petitioner was unable
to file Form 10-IC due to unavailability of Shri
Anupam Sharma, the person handling income
tax matters of the petitioner as due to severe
health conditions of his mother and elder
daughter and their subsequent deaths, he was
unable to focus on work and as a result Form
10-IC could not be filed even before the
extended date, i.e., 30.06.2022.

vi. In the application for delay
condonation dated 29.12.2023, the petitioner
has stated that it only came to know about the
non-filing of Form 10-IC when a demand of Rs.
45,89,490/- was found on the portal. It was
pleaded that the non-filing of Form 10-IC was
not intentional but due to personal difficulties of
the staff member and that non-filing of Form
10-IC was a procedural error and could be
rectified.

vii. Vide order dated 30.01.2024, the
Principal
Commissioner
of
Income
Tax,
Ghaziabad rejected the application for delay
condonation filed by the petitioner on grounds
that the assessee company was not in genuine
618 INDIAN LAW REPORTS ALLAHABAD SERIES
hardship. The same was done on the report of
the Range Head, Ghaziabad who recorded in his
report that the petitioner had failed to establish
technical glitches suffered by him while
uploading Form 10-IC. It is alleged that prior to
passing of the order dated 30.01.2024, no
opportunity of personal hearing was provided to
the petitioner.

viii. The Principal Commissioner of
Income Tax, Ghaziabad has recorded a specific
finding that the Assessing Officer, in his report
on petitioner's application, had stated that based
on the documentary evidence attached to the
application, the claim is correct and genuine.
Despite a specific finding by the assessing
authority that the case of the petitioner seems to
be genuine, the Principal Commissioner of
Income Tax, Ghaziabad, placing reliance on the
report of the Range Head, Ghaziabad has
rejected the application of the petitioner.

ix. The report of the Range Head,
Ghaziabad, which was adverse to the petitioner
and on the basis of which the order impugned
has been passed was not made available to the
petitioner before the order impugned was
passed. The petitioner had no opportunity to
review it and thereafter controvert its contents.

x.
The
Circular
No.
9/2015
[F.No.312/22/2015-OT]
dated
09.06.2015
provides for guidelines on conditions and
procedure to be followed in cases where
application has been filed under Section
119(2)(b) of the Act.

xi. Clause 5 of the Circular No.
9/2015
[F.No.312/22/2015-OT]
dated
09.06.2015 is extracted below:

"5.
The
powers
of
acceptance/rejection of the application within
the
monetary
limits
delegated
to
the
Pr.CCIT/CCSIT/Pr.CsIT/CIT in case of such
claims will be subject to following conditions:

a. At the time of considering the case
under Section 119(2)(b), it shall be ensured that
the income/loss declared and/or refund claimed
is correct and genuine and also that the case is
of genuine hardship on merits.

b. The Pr.CCIT/CCIT/Pr.CIT/CIT
dealing with the case shall be empowered to
direct the jurisdictional assessing officer to
make necessary inquiries or scrutinize the case
in accordance with the provisions of the Act to
ascertain the correctness of the claim."

xii. No reasons have been accorded
for rejection of the application on grounds of
lack of genuine hardship on the part of the
petitioner when the circumstances explained by
the petitioner have not been dealt with by the
Principal
Commissioner
of
Income
Tax,
Ghaziabad, in the impugned order dated
30.01.2024.

xiii. The order impugned dated
30.01.2024 does not record that the affidavit
submitted by Mr. Anupam Sharma attesting to
the deaths in his family and consequent
personal difficulties were falsehoods, only set
up to justify the application for condonation of
delay submitted by the petitioner. Due to delay
in filing Form 10-IC an additional demand of
Rs. 45,89,490/- was raised against the petitioner
for the assessment year 2020-21.

xiv. Relevant clause 9 of the Circular
No.
9/2015
[F.No.312/22/2015-01]
dated
09.06.2015 is extracted below:

"9. The Board reserves the power to
examine any grievance arising out of an order
passed or not passed by the authorities
mentioned in para 2 above and issue suitable
directions to them for proper implementation of
this Circular. However, no review of or appeal
against the orders of such authorities would be
entertained by the Board."

4. Learned counsel for the petitioner
submits that the Principal Commissioner of
Income Tax, Ghaziabad, arbitrarily rejected the
petitioner's application for condonation of delay
in filing Form 10-IC, concluding a lack of
"genuine hardship." The petitioner submitted
the proof, including a detailed affidavit,
7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
619
demonstrating that the delay had occurred due
to subsequent deaths of Shri Anupam Sharma's
mother
and
elder
daughter,
the
person
responsible for the petitioner's tax compliance.
To
disregard
such
well-substantiated
circumstance as not constituting genuine
hardship represents an unjust exercise of
discretionary power.

5. He further submits that the impugned
order is fundamentally incorrect due to a clear
violation of the principles of natural justice. The
Principal Commissioner passed the order
without giving any opportunity of hearing to the
petitioner. Further, the adverse report from the
Range Head, Ghaziabad which served as the
sole basis for the rejection, was never disclosed
to
the
petitioner,
thereby
depriving
the
petitioner of any opportunity to review or refute
the allegations made against it.

6. Learned counsel for the petitioner
further argues that the Principal Commissioner
has not used his discretion under Section
119(2)(b) of the Act correctly. This section is
for
ensuring
justice
by
allowing
delay
condonation
applications
when
there
are
genuine hardship, however, the Commissioner
took a very narrow view and ignored the clear
human reasons for the delay. The non-filing of
Form 10-IC was an unintended procedural
oversight, not a deliberate act of tax evasion.
The petitioner had clearly signified its intention
to opt for the beneficial Section 115BAA of the
Act by including it in its original income tax
return and audit report (Form 3CD). The
subsequent
substantial
demand
of
Rs.
45,89,490/- is a direct consequence of this
technical lapse. The delay had occurred due to
the unavoidable personal circumstances and
there is no indication that the petitioner has
sought any advantage by late filing. The
respondent authority was not justified in
denying such benefit by not condoning the
delay in filing such form which is procedural in
nature.

7. Learned counsel for the petitioner
further submits that the Principal Commissioner
has ignored the Assessing Officerâ€TMs report,
who, after reviewing the documentary evidence,
deemed the petitioner's claim "correct and
genuine." The impugned order fails to provide
any cogent reasons for rejecting the finding and
for concluding a lack of genuine hardship
despite the detailed report in favour of the
petitioner.

8. Learned counsel for the petitioner relied
upon the judgment passed by Hon'ble Supreme
Court as well as various judgments of the
Honâ€TMble High Courts in support of his
aforesaid contentions. The judgments which are
relied upon by the learned counsel are as under:

i. The Hon'ble Apex Court in
B.M.Malani v. Commissioner of Income Tax
and Anr (2008) 10 SCC 617 observed as under:

"16. The term genuine' as per the
New Collins Concise English Dictionary is
defined as under: "Genuine means not fake or
counterfeit, real, not pretending (not bogus or
merely a ruse)"

17.
For
interpretation
of
the
aforementioned provision, the principle of
purposive construction should be resorted to.
Lavy of interest although is statutory in nature,
inter alia for re-compensating the revenue from
loss suffered by non-deposit of tax by the
assessee within the time specified therefor. The
said principle should also be applied for the
purpose of determining as to whether any
hardship had been caused or not. A genuine
hardship would, inter alia, mean a genuine
difficulty. That per se would not lead to a
conclusion that a person having large assets
would never be in difficulty as he can sell those
assets and pay the amount of interest levied.

18. The ingredients of genuine
hardship must be determined keeping in view
the dictionary meaning thereof and the legal
conspectus attending thereto. For the said
purpose, another well-known principle, namely,
a person cannot take advantage of his own
wrong, may also have to be borne in mind. The
said principle, it is conceded, has not been
applied by the courts below in this case, but we
620 INDIAN LAW REPORTS ALLAHABAD SERIES
may take note of a few precedents operating in
the field to highlight the aforementioned
proposition of law. [See Priyanka Overseas Pvt.
Ltd. & Anr. v. Union of India & ors. 1991
Suppl. (1) SCC 102, para 39, Union of India &
ors. v. Major General Madan Lal Yadav (Retd.)
(1996) 4 SCC 127 at 142, paras 28 and 29,
Ashok Kapil v. Sana Ullah (dead) ors. (1996) 6
SCC 342 at 345, para 7, Sushil Kumar v.
Rakesh Kumar (2003) 8 SCC 673 at 692, para
65, first sentence, Kusheshwar Prasad Singh v.
State of Bibar ors. (2007) 11 sec 447, paras 13,
14 and 16).

19. Thus, the said principle, in our
opinion, should be applied even in a case of this
nature. A statutory authority despite receipt of
such a request could have kept mum. It should
have taken some action. It should have
responded to the prayer of the appellant.
However, another principle should also be
borne in mind, namely, that a statutory
authority must act within the four corners of the
statute. Indisputably, the Commissioner has the
discretion not to accede to the request of the
assessee, but that discretion must be judiciously
exercised. He has to arrive at a satisfaction that
the three conditions laid down therein have
been fulfilled before passing an order waiving
interest."

ii. The Hon'ble Gujarat High Court
in Gujarat Electric Co. Ltd. v. CIT [2002] 255
ITR 396 held that the word "genuine
hardship" in Section 119 must be construed
liberally and granted the benefit of refund to the
petitioner where return could not be filed due to
illness of the person in-charge of filing the
returns.

iii. The Hon'ble High Court of
Judicature at Bombay in K.S. Bilawala Ors. v.
Principal Commissioner of Income Tax 17,
Mumbai &Ors (Writ Petition (1) No. 32261 of
2023) has held as under:

"Therefore,
the
phrase
genuine
hardship' used in Section 119(2)(b) of the Act
should be considered liberally. Respondent
should keep in mind, while considering an
application of this nature, that the power to
condone the delay has been conferred to enable
the authorities to do substantial justice to the
parties by disposing the matters on merits.
While considering these aspects, the authorities
are expected to bear in mind that no applicant
stand to benefit by lodging delayed returns.
Refusing to condone the delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated.
As against this, when the delay is condoned, the
highest that can happen is that a cаÐ1⁄2зР̧
would be decided on merits after hearing the
parties."

iv. The Hon'ble High Court of
Judicature at Bombay in Sitaldas K Motwani
vs. Director General of Income Tax and others
(2009 SCC OnLine Bom 2195) held as under:

"The Legislature has conferred the
power to condone delay to enable the
authorities to do substantive justice to the
parties by disposing of the matters on merit.
The expression "genuine" has received a liberal
meaning in view of the law laid down by the
Apex Court referred to bereinabove and while
considering this aspect, the authorities are
expected to keep in mind that ordinarily the
applicant, applying for condonation of delay
does not stand to benefit by lodging its claim
late. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated.
As against this, when delay is condoned, the
authorities can decide the case on merits after
hearing the parties. When substantial justice
and technical considerations are pitted against
each other, cause of substantial justice deserves
to be preferred for the other side cannot claim
to have vested right in injustice being done
because of a non-deliberate delay. There is no
presumption
that
delay
is
occasioned
deliberately, or on account of culpable
negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to
delay."

v. Learned counsel for the petitioner
has also relied upon a judgment of the High
7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
621
Court of Gujarat at Ahmedabad in R/Special
Civil Application No. 3445 of 2024; Deepak
Pragjibhai
Gondaliya
vs.
Principal
Commissioner of Income Tax Vododara 1,
decided on 10.06.2025. Paragraph Nos. 7 and 8
of the judgment are quoted below:

"7. As held by this Court in various
judgments while considering the late filing
Form 10-IC, Form 10B as required under
various provisions of the Act for claiming
deduction under Chapter-VI, that the filing of
form for claiming benefit under the provisions
of the Act is procedural, the case of Sitaldas K.
Motwani v. Director General of Income Tax
(International Taxation) reported in [2010]
187 Taxman 44 {=323 ITR 223 (Bombay)} as
well as the case of Bombay Mercantile Co-op.
Bank Ltd., v. CBDT reported in [2010] 195
Taxman 106 {=332 ITR 87(Bombay)} were
followed. Similarly in case of Pankaj Kailash
Agarwal v. Assistant Commissioner of Income
Tax reported in [2024] 464 ITR 65 (Bombay),
the Hon'ble Bombay High Court has held as
under :-

"10. On the issue of genuine
hardship, relying on R. K. Madhani Prakash
Engineers (Supra), Mr. Sarda submitted that
while considering this aspect of genuine
hardship, the authorities are expected to bear in
mind that ordinarily applicant applying for
condonation of delay does not stand to benefit
by lodging its claim late. Moreso, when
applicant is claiming the deductions under
Section 80IC of the Act. Mr. Sarda submitted
that CBDT has failed to understand that when
the delay is condoned, the highest that can
happen is that the cause would be decided on
merits after hearing the parties and the
approach of the CBDT should be justice
oriented so as to advance cause of justice.

11.
In
the
affidavit
in
reply,
respondents have only reiterated what was
stated in the impugned order and Mr. Rattesar
resubmitted the same.

12. We would agree with Mr. Sarda
that no assessee would stand to benefit by
lodging its claim late. Moreso, in case of the
nature at hand, where assessee would get tax
advantage/benefit by way of deductions under
Section 80IC of the Act. Of course, there cannot
be a straight jacket formula to determine what
is 'genuine hardship'. In our view, certainly the
fact that an assessee feels that he would be
paying more tax if he does not get the
advantage of deduction under Section 80IC of
the Act, that will be certainly a 'genuine
hardship'. It would be apposite to reproduce
paragraph 4 of judgment in K. S. Bilawala &
Ors. Vs. PCIT & Ors. (2024) 158 taxmann.com
658 (Bombay), which reads as under:

"4. There cannot be a straight jacket
formula to determine what is genuine hardship.
In our view, certainly the fact that an assessee
feels he has paid more tax than what he was
liable to pay will certainly cause hardship and
that will be certainly a 'genuine hardship'. This
Court in Optra Health Pvt. Ltd. v. Additional
Commissioner of Income Tax (HQ), Pune &
Ors. (Writ Petition No.15544 of 2023 dtd. 19 th
December 2023) in paragraphs No. 9 and 10
held as under:

9. While considering the genuine
hardship, the PCCIT was not expected to
consider a solitary ground as to whether the
assessee was prevented by any substantial
cause from filing the corrections within a due
time. Other factors also ought to have been
taken into account. The phrase "genuine
hardship" used in Section 119(2)(b) of the Act
should have been construed liberally. The
Legislature has conferred the power to condone
the delay to enable the authorities to do
substantial justice to the parties by disposing
the matters on merits. The expression 'genuine'
has received a liberal meaning in view of the
law laid down by the Apex Court and while
considering this aspect, the authorities are
expected to bear in mind that ordinarily the
applicant, applying for condonation of delay,
does not stand to benefit by lodging erroneous
returns. Refusing to condone the delay can
result in a meritorious matter being thrown out
at the very threshold and cause of justice being
defeated. As against this, when delay is
622 INDIAN LAW REPORTS ALLAHABAD SERIES
condoned, the highest that can happen is that a
cause would be decided on merits after hearing
the parties. When substantial justice and
technical considerations are pitted against each
other, cause of substantial justice deserves to be
preferred, for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate action. There is no
presumption that a delay in correcting an error
or responding to a notice of invalid return
received under Section 139(9) of the Act is
occasioned deliberately or on account of
culpable negligence or on account of malafides. A litigant does not stand to benefit by
resorting to delay. In fact, he runs a serious
risk. The approach of authority should be
justice-oriented so as to advance cause of
justice. If the case of an applicant is genuine,
mere delay should not defeat the claim. We find
support for this view in Sitaldas K. Motwani v.
Director General of Incometax (International
Taxation), New Delhi, relied upon by Mr.
Walve, where paragraph nos. 13 to 17 read as
under :

"13. Having heard both the parties,
we must observe that while considering the
genuine hardship, Respondent No. 1 was not
expected to consider a solitary ground so as to
whether the petitioner was prevented by any
substantial cause from filing return within due
time. Other factors detailed hereinbelow ought
to have been taken into account.

14. The Apex Court, in the case of
B.M. Malani v. CIT [2008] 10 SCC 617, has
explained the term "genuine" in following
words:

"16. The term 'genuine' as per the
New Collins Concise English Dictionary is
defined as under : 'Genuine' means not fake or
counterfeit, real, not pretending (not bogus or
merely a ruse)'.

17. ******

18. The ingredients of genuine
hardship must be determined keeping in view
the dictionary meaning thereof and the legal
conspectus attending thereto. For the said
purpose, another well-known principle, namely,
a person cannot take advantage of his own
wrong, may also have to be borne in mind....."
(p. 624).

The Gujarat High Court in the case
of Gujarat Electric Co. Ltd. (supra) was
pleased to hold as under:

"... The Board was not justified in
rejecting the claim for refund on the ground
that a case of genuine hardship was not made
out by the petitioner and delay in claiming the
relief was not satisfactorily explained, more
particularly when the returns could not be filed
in time due to the ill health of the officer who
was looking after the taxation matters of the
petitioner...." (p. 737).

The Madras High Court in the case
of R. Seshammal (P.) Ltd. (supra), was pleased
to observe as under:

"This is hardly the manner in which
the State is expected to deal with the citizens,
who in their anxiety to comply with all the
requirements of the Act pay monies as advance
tax to the State, even though the monies were
not actually required to be paid by them and
thereafter, seek refund of the monies so paid by
mistake after the proceedings under the Act are
dropped by the authorities concerned. The State
is not entitled to plead the hypertechnical plea
of limitation in such a situation to avoid return
of the amounts. Section 119 of the Act vests
ample power in the Board to render justice in
such a situation. The Board has acted
arbitrarily in rejecting the petitioner's request
for refund." (p.187)

15. The phrase "genuine hardship"
used in section 119(2)(b) should have been
construed liberally even when the petitioner has
complied with all the conditions mentioned in
Circular dated 12-10-1993. The Legislature has
conferred the power to condone delay to enable
the authorities to do substantive justice to the
parties by disposing of the matters on merit.
The expression "genuine" has received a liberal
7 All. Cell Com Teleservices Pvt. Ltd. Vs. Union Of India & Ors.
623
meaning in view of the law laid down by the
Apex Court referred to hereinabove and while
considering this aspect, the authorities are
expected to bare in mind that ordinarily the
applicant, applying for condonation of delay
does not stand to benefit by lodging its claim
late. Refusing to condone delay can result in a
meritorious matter being thrown out at the very
threshold and cause of justice being defeated.
As against this, when delay is condoned the
highest that can happen is that a cause would
be decided on merits after hearing the parties.
When
substantial
justice
and
technical
considerations are pitted against each other,
cause of substantial justice deserves to be
preferred for the other side cannot claim to
have vested right in injustice being done
because of a non-deliberate delay. There is no
presumption
that
delay
is
occasioned
deliberately, or on account of culpable
negligence, or on account of mala fides. A
litigant does not stand to benefit by resorting to
delay. In fact he runs a serious risk. The
approach
of
the
authorities
should
be
justiceoriented so as to advance cause of
justice. If refund is legitimately due to the
applicant, mere delay should not defeat the
claim for refund.

16. Whether the refund claim is
correct and genuine, the authority must satisfy
itself that the applicant has a prima facie
correct and genuine claim, does not mean that
the authority should examine the merits of the
refund claim closely and come to a conclusion
that the applicant's claim is bound to succeed.
This would amount to prejudging the case on
merits. All that the authority has to see is that
on the face of it the person applying for refund
after condonation of delay has a case which
needs consideration and which is not bound to
fail by virtue of some apparent defect. At this
stage, the authority is not expected to go deep
into the niceties of law. While determining
whether refund claim is correct and genuine,
the relevant consideration is whether on the
evidence led, it was possible to arrive at the
conclusion in question and not whether that
was the only conclusion which could be arrived
at on that evidence.

17. Having said so, turning to the
facts of the matter giving rise to the present
petition, we are satisfied that respondent No. 1
did not consider the prayer for condonation of
delay in its proper perspective. As such, it needs
consideration afresh."

10. This was followed by this Court
in Artist Tree (P.) Ltd. v. Central Board of
Direct Taxes, (2014) 52 taxmann.com 152
(Bombay) relied upon by Mr. Walve, where
paragraph nos. 19, 21 and 23 read as under :

"19. The circumstance that the
accounts were duly audited way back on 14
September 1997, is not a circumstance that can
be
held
against
the
petitioner.
This
circumstance, on the contrary adds force to the
explanation furnished by the petitioner that the
delay in filing of returns was only on account of
misplacement or the TDS Certificates, which
the petitioner was advised, has to be necessarily
filed alongwith the Return of Income in view of
the provisions contained in Section 139 of the
said Act read alongwith Income Tax Rules,
1962 and in particular the report in the
prescribed Forms of Return of Income then in
vogue which required an assessee to attach the
TDS Certificates for the refund being claimed.
The explanation furnished is that on account of
shifting of registered office, it is possible that
TDS Certificates which may have been
addressed to the earlier office, got misplaced.
There is nothing counterfeit or bogus in the
explanation offered. It cannot be said that the
petitioner has obtained any undue advantage
out of delay in filing of Income Tax Returns. As
observed in case of Sitaldas K. Motwani
(supra), there is no presumption that delay is
occasioned deliberately or on account of
culpable negligence or on account of mala
fides. It cannot be said that in this case the
petitioner has benefited by resorting to delay. In
any case when substantial justice and technical
consideration are pitted against each other, the
cause of substantial justice deserves to prevail
without in any manner doing violence to the
language of the Act.

21.