1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPT No. 73 of 2024 1 - Earthmet Resources Private Limited, A Company Within The Meaning Of The Companies Act, 2013, Having Its Registered Offfice At F-2, Hira Arcade, Near New Bus Stand, Pandri, Raipur (C.G.) 2 - Mr. Somnath Agrawal S/o Lt. Shri Murari Lal Agrawal, Aged About 45 Years Having Office At, Village- Kapasda, Dharsiwa, Tilda, P.O. Dharsiwa, Raipur, Chhattisgarh. ... Petitioner(s) versus 1 - Union Of India Through The Secretary, Ministry Of Finance, Department Of Revenue, Having Its Office At The Central Secretariat, North Block, New Delhi- 110001 2 - Central Board Of Direct Taxes, Through Its Chairman, Having His Office At, The North Block, Central Secretariat, New Delhi- 110001. 3 - Income Tax Officer, Ward -3(1), Raipur, Having His Office At, Central Revenue Building, Civil Lines, Raipur, Chhattisgarh- 492001. --- Respondent(s) For Petitioners : Mr. Ankit Singhal, Advocate For Union of India/Respondent No.1 : Mr. Ramakant Mishra, DSG along with Mr. Abhishek Banjare, CGC For Respondents No.2 & 3 : Mr. Ajay Kumrani, Advocate Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 24.04.2026 1) By way of this petition, the petitioners have sought following reliefs:- 2 “10.1 That, this Hon'ble Court may kindly be pleased to pass any appropriate writ, order or direction in the nature of Mandamus commanding the respondents to withdraw, recall, cancel and/or rescind the purported orders dated October 3, 2023 and/or November 28, 2023 and to grant relief to the petitioner company under Section 119(2)(c) of the Act by allowing the petitioners to exercise the option under Section 115BAB of the Income Tax Act, 1961 and/or accepting the revised return for the assessment year 2020-21 allowing exercise of the option under section 115BAB; 10.2 That, this Hon'ble Court may kindly be pleased to pass any appropriate writ, order or direction in the nature of Certiorari commanding the respondents to transmit and certify the records relating to the purported orders dated October 3, 2023 and/or November 28, 2023 and all the purported proceedings initiated thereunder and/or relating thereto and/or in pursuance thereof so that the same may be set aside and/or quashed and conscionable justice is rendered; 10.3 Costs of and incidental to this application be paid by the respondents; 10.4 Any other relief or relief(s) which this Hon'ble Court may deem fit and proper in view of the facts and circumstances of the case, may also kindly be granted.” 2) Learned counsel appearing for the petitioners would submit that Petitioner No.1 is a company registered under the Companies Act, 1956 and 2013. He would further submit that the petitioners were entitled for benefit provided under Section 115 BAB of the Income Tax Act, 1961 (for short ‘the Act of 1961’) as the Company was incorporated after 01.10.2019. Mr. Singhal would contend that the portal of the department remained open uptil 15.02.2021 but the petitioners failed to opt for such relaxation during said period and thereafter, an application under Section 119(2)(b) of the Act of 1961 was moved for condonation of delay which was rejected vide order dated 03.10.2023. He would submit that the Revenue passed an order 3 under Section 154 of the Act of 1961 on 28.11.2023 assessing the amount of tax Rs.3,57,206/-. He would further submit that in absence of relaxation as per Section 115 BAB of the Act of 1961, the tax amount payable by the petitioners was Rs.6,63,490/-. He would contend that sufficient grounds were raised by the petitioners in the application for condonation of delay. It is also argued that the order impugned was passed during period of Covid Outburst. He would pray to set aside the impugned order dated 03.10.2023 and rectification order dated 28.11.2023. 3) On the other hand, learned counsels appearing for the respondents would oppose the submissions. They would submit that the petitioners failed to opt to get benefit under Section 115 BAB of the Act of 1961 within prescribed period when portal was open. They would further submit that thereafter, an application for condonation of delay was moved under Section 119(2)(b) of the Act of 1961 but sufficient reasons were not assigned, therefore, the authority concerned rejected said application. It is also contended that thereafter, rectification order for assessment year 2022-23 was passed by the authority concerned on 28.11.2023. They would submit that this petition deserves to be dismissed. 4) Heard the learned counsel on either side and perused the material available on record. Before, I proceed further it would be relevant to extract section 119(2)(b) of the Act, which reads as follows: "(b) the Board may, considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise any income-tax authority, not being a Joint Commissioner (Appeals) or a Commissioner 4 (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on the merits in accordance with law." 5) Section 119(2)(b) vests power in the Board to admit an application or claim for any exemption, deduction, refund or any other relief under the Act after the period specified under the said Act, for making such application or claim, if it is considered by the Board to be desirable or expedient so to do for avoiding genuine hardship in any case or class of cases. 6) On a reading of section 119(2)(b) of the Act, in particular, the enabling words "may" employed , would suggest that power conferred is prima facie discretionary. However, if the object for which the power is conferred is for the purpose of effectuating a right, there may be a duty cast upon the donee of the power to exercise it for the benefit of those who have that right when required on their behalf if the conditions warranting exercise of such power are shown/found to exist. In other words, if the circumstances set out under section 119(2)(b) of the Act exist, a duty is cast on the Assessing Officer to exercise his power under section 119(2)(b) of the Act. It is trite law that vesting of power in an authority in imposition of duties on that authority to exercise that power in a manner which would advance the purpose for granting/vesting of such power. In other words, this court is of the view that the power under section 119(2)(b) though seemingly an enabling provision, conferring discretionary power, such power is coupled with a duty. I say so, for it is trite law that when a statute invests a public officer with authority to do an act in a specified set of circumstances, it 5 is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the courts will readily infer a duty to exercise power which is invested in ald of enforcement of a public right or private right of a citizen. 7) Keeping the above legal principles in mind, it appears that the enquiry to be made for exercise of power under section 119(2)(b) of the Act, is whether the admission of a claim for exemption, refund or other relief after expiry of the period specified for making such claim of exemption, refund or other relief is "desirable", or "expedient" to avoid "genuine hardship". In other words while exercising the power under section 119(2)(b) of the Act, the authority in the present case ought to have taken into account whether the request to admit the claim of option under section 115BAA of the Act, after the expiry of the period specified under sub section (2) of section 115BAA, is "desirable" or "expedient" to avoid "genuine hardship" 8) The expression "genuine hardship" had come up for consideration on more than one occasion before various courts, including this court and the apex court. It appears that it has been consistently held that the power conferred under section 119(2)(b) of the Act, ought to be exercised liberally provided circumstances set out therein exist. Here it may be relevant to keep in view the decision of the High Court of Bombay in the case of Pankaj Kailash Agarwal v. Asst. CIT, wherein it was held that no assessee would stand to benefit by lodging its claim 6 late. More so, where the assessee would get tax advantage/benefit. It was held that the fact that an assessee feels that he would be paying more tax if he does not get the advantage of deduction will certainly constitute "genuine hardship". The phrase "genuine hardship" used in section 119(2)(b) of the Act should be 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 of the matters on the merits. 9) In the circumstances this court is of the view that the respondent authority/Board has completely misdirected itself in not examining if the failure to consider the claim of option to discharge tax under section 115BAB on the ground of failure on the fact of the petitioners to file form 10-1D within the period stipulated under section 115BAB would cause "genuine hardship" to the petitioner- assessee and thus it is desirable as expedient to permit the petitioners to file form 10-ID in support of its option under section 115BAA and deal with the same on the merits. The facts narrated supra leave no room for doubt that the rejection of the petition under section 119(2)(b) to permit the petitioners to file form 10-ID in support of its exercise of option under section 115BAB of the Act would cause genuine hardship and it is desirable and expedient to permit the petitioners to file form 10-1D in support of its claim/option under section 115BAB of the Act and deal with such claim on the merits in accordance with law. 10) In view thereof, the impugned order dated 03.10.2023 and rectification order dated 28.11.2023 are hereby set aside. The delay caused in filing of Form 10-1D of the Act of 1961 is hereby condoned. 7 The respondent shall keep the portal open to enable the petitioners to upload form 10-ID within a period of four weeks from the date of receipt of a copy of this order and thereafter, the respondent shall proceed to deal with the claim of the petitioners under Section 115BAB of the Act of 1961 on the merits and in accordance with law. 11) With the aforesaid observation(s) and direction(s), this petition is disposed of. Sd/- (Rakesh Mohan Pandey) JUDGE Rekha