Decided on December 08,2017

Babulal Mohanraj Jain Appellant


A.S. Oka, J. - (1.) By this petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the order dated 18th April 2012 passed by the Under Secretary (ITA1) on application made by the petitioner under subsection (2) of section 119 of the Income Tax Act, 1961 (for short "the said Act"). This petition pertains to the assessment year 2007-08. The petitioner filed return of income electronically on 26th February 2008 on which an order of assessment under subsection (3) of section 143 of the said Act was passed on 31st December 2009. The petitioner made an application to the first respondent seeking relief under subsection (2) of section 119 of the said Act of condonation of delay in filing return of income which could not be filed within the time prescribed under subsection (1) of Section 139 of the said Act. In the said application, in paragraphs 2 and 3, the petitioner has stated thus: "2. Facts of the Tragedy are as under: My elder brother Kevalchand Jain (Sonigara) had gone to Palithana in Gujarat on pilgrimage, with his family relatives. When they were returning to Ahmedabad from Palithana on way back home by road, the tourist vehicle (Toyota Qualis) in which they were travelling was swept away as the driver of the tourist vehicle made a blunder of driving through the flooded bridge without railings on river Rangholi near village Ghanghli District Bhavnagar. The car swept away in the river by the force of the flooded river and only driver and one person out of the 7 passengers in the car could saved by rescue team as they were handing to trees on an island in the river Rangholi. The unfortunate accident happened at about 9.30 am on 25/09/2007. On hearing about about the unfortunate accident I rushed to the accident spot the same evening. The force of the flood water was such that the tourist vehicle could be lifted out of the river only after three days and the first body was found on that day, remaining bodies of our beloved relatives were recovered on fourth day of the tragedy by rescue and search team of above 350 people and search by helicopter two times in three days but my brother was not found. All except my brother Kevalchand Jain were found dead but my brother was not found. There was no trace of my brother or of any of his belongings on him at the time of accident. Thus we were hoping to find him alive and great amount of efforts were being made with the help of Govt machinery and local people to find him or his belongings. I went to the site of the accident from time to time with the hope that I would be able to find him. We made calls to the people in the near by talukas by putting banners on the highway, dhabas and transport offices and put an advertisement in Gujarat News Paper. The police department also put notices in all Gujarat Police Stations asking general public to come forward and notify if Kevalchand is seen and found by anybody. Whenever, any information was received we tried to contact the concerned person but all these efforts proved unsuccessful. Ultimately we received death certificate of my beloved brother Kevalchand in first week of Nov 2007. We continued our efforts to find his belongs/ his remains till river dried in Jan/ Feb 08. Due to this unfortunate accident our entire family were in state of shock and till date we have not been able to find him, his belongs or his remains. This was a calamity on our family, as the responsible person in the family I had to devote my maximum time and energy in search of my elder brother Kevalchand and bring back life of my nephew and my sister in law to normalcy. 3. As I was engrossed in persist of this sad affair, I could not give attention to other matters. The completing and handing over of books of accounts for purpose of tax audit was delayed and reprimanded or back burner and remained to be done and the audit u/s 44AB could be done and certificate could be obtained only on 20/02/2008. As a result the return of income for A.Y. 2007-08 could be filed only on 10/03/2008 resulting in filing return late beyond the time prescribed u/s 139(1). Copies relevant information is enclosed, like Police Panchanama, Talethis Certificate, copy of advertisement in a paper in Gujarat and copy of death certificate."
(2.) The petitioner invoked powers both under clauses (b) and (c) of subsection (2) of section 119 of the said Act. The said application was made by the petitioner on 4th January 2010. By the impugned order, the said application has been rejected. The application has been rejected on the ground that though showcausenotice based on the said application was issued to the petitioner and personal hearing was granted, no satisfactory answer could be given by the petitioner. The second ground on which the application is rejected is that clause (c) of subsection (2) of Section 119 cannot be applied as the said section does not permit relaxation on any requirement of a any section, particularly section 80AC of the said Act. The third reason given is that though the claim of the petitioner was that he was busy in searching his brother and, therefore, return of income could not be filed within the stipulated time, during the relevant period, the total income of business of the petitioner grew from Rs.1,35,73,197/ to Rs.1,46,46,720/. It was observed that this figure shows that the business activities of the petitioner were continued and were not adversely affected due to unfortunate event taken place in the financial year 200708. Further it was observed that the petitioner's deceased brother had no involvement in his business. It was also observed that to complete tax audit, the personal presence of the petitioner was not required.
(3.) The learned counsel appearing for the petitioner has taken us through section 119 of the said Act. He also invited our attention to section 80AC of the said Act. He submitted that there is a power vested in the Board to extend time to file return as provided in subsection (1) of section 139 of the said Act. He submitted that once the time to file return is extended, section 80AC can be invoked and applied as the return will be treated as filed within the time provided by law. In the alternative, he submitted that clause (c) of subsection (2) of section 119 will certainly apply to the facts of the case. He submitted that requirement of section 80AC is to file a return under subsection (1) of section 139 within the dates stipulated therein. He submitted that there is a power vested in the Board to relax any such requirement subject to conditions specified in subclauses (i) and (ii) of clause (c) of subsection (2) of section 119 of the said Act provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. He submitted that both the conditions in subclauses (i) and (ii) were satisfied in the facts of the case. He submitted that the return was filed immediately after audit under section 44AB was carried out and, thus, the return was filed as expeditiously as possible.;

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