JUDGMENT : (BHARGAV D. KARIA, J.) 1. Heard learned advocate Mr.Chintan Dave appearing for petitioner and learned Senior Standing Counsel Mr.Varun K. Patel appearing for the respondent. 2. Having regard to the controversy involved in this petition, which is in a narrow compass, with the consent of learned advocates for the respective parties, the matter is taken up for final hearing. 3. Rule returnable forthwith. Learned Senior standing Counsel Mr.Varun K.Patel waives service of notice of rule on behalf of the respondent. 4. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 12th June, 2024 passed by the respondent under Section 119(2) (b) of the Income Tax Act, 1961 (for short “the Act”) whereby, the prayer of the petitioner to condone the delay in filing the return of Income for the Assessment Year 2022- 23 is rejected by the respondent on the ground that the petitioner was unable to demonstrate any genuine hardship for not filing the return of income to claim the refund of Rs.23,68,373/-. 5.1 The brief facts of the case are that the petitioner is a senior citizen who sold open N.A plot bearing Survey No. 2411, admeasuring 2324.61 sq.mtrs. on 24th February,2022 for total consideration of Rs.1,31,00,000/-. The buyer of the said plot had deducted tax at source under Section 195 of the Act of Rs.31,33,520/-. 5.2 The petitioner was required to file return of income for the Assessment Year 2022-23 on or before 31st July, 2022. 5.3 However, it is the case of the petitioner that the petitioner normally who is residing at U.S.A and therefore, the petitioner could not file the return of income before the due date. It is also the case of the petitioner that the petitioner was suffering from Cardiac problem and therefore, when he visited India in the month of December, 2022 for medical check up, the petitioner and his uncle one Mr.Ishvarbhai Patel, aged about 85 years, both were suffering from severe leg pain and were advised for knee replacement by the Doctor. The petitioner therefore, visited India during period from 7.12.2022 to 31.1.2023 i.e. about two months. The petitioner was suffering from various medical ailments and his uncle was also required to be operated and the petitioner therefore, could not file the return of Income even during his brief visit in India. The petitioner therefore, visited India during period from 7.12.2022 to 31.1.2023 i.e. about two months. The petitioner was suffering from various medical ailments and his uncle was also required to be operated and the petitioner therefore, could not file the return of Income even during his brief visit in India. Copies of the medical certificates showing the ailment being suffered by the petitioner and his uncle are placed on record. 5.4 It is case of the petitioner that the petitioner had missed to file his return of income claiming the refund but, when his brother-in-law had drawn his attention, the petitioner gathered the requisite documents and filed the return of income belatedly after delay of 380 days. The petitioner accordingly preferred an application under Section 119(2) (b)of the Act before the respondent to condone the delay in filing of return of income for the Assessment Year 2022-23 on 11.8.2023 describing the aforesaid facts in support of his prayer. 5.5 The respondent thereafter provided an opportunity of hearing to the petitioner by communication dated 29.3.2024 which was responded by the petitioner by filing the reply dated 27.05.2024.The respondent however, by the impugned order dated 12.06.2024 rejected the application of the petitioner to condone the delay in filing the return for the Assessment Year 2022-23. 6. Being aggrieved, the petitioner has preferred this petition. 7. Learned advocate Mr.Chintan Dave for the petitioner submitted that the petitioner being a senior citizen had missed to file the return of income and considering the ailment suffered by the petitioner and his uncle respondent ought to have condoned the delay in filing the return which is only to claim the refund of the tax deducted at source only on the sole transactions entered into by the petitioner for sale of the land in India in the month of February, 2022. It was submitted that the petitioner has also given computation of the refund amount in the application preferred before the respondent. It was submitted that the petitioner has also given computation of the refund amount in the application preferred before the respondent. It was submitted that the respondent was required to consider the genuine difficulty in not filing the return by the petitioner as genuine hardship as held by the various Courts to take a liberal approach while exercising the jurisdiction under Section 119(2)(b) of the Act, as the petitioner even otherwise would not be entitled to any interest on the amount of refund if the delay is condoned by the respondent to process the return of income filed by the petitioner with a delay of 380 days. In support of his submissions, learned advocate for the petitioner has relied upon the following decisions :- (1) Chintan Navnitlal Parikh Vs. Deputy Secretary (OT and WT) Central Board of Direct Taxes reported in [2023] 154 taxmann.com.544 (Gujarat). (2) Sitaldas K.Motwani Vs. Director General of Income-tax(International Taxation), New Delhi reported in [2010] 187 Taxman 44 (Bombay). (3) Nirzari Amitbhai Mehta Vs. PR. Commissioner of Income Tax-1 Or his successor. 8. On the other hand, learned Senior Standing Counsel Mr.Varun K.Patel for the respondent submitted that the power of condonation of delay has been delegated by the CBDT vide Circular No.9/2015 dated 9.6.2015 where, one of basic conditions, as per the said Circular is that the authority concerned is required to examine whether the case of the petitioner falls under “genuine hardship on merits” or not ? It was submitted that the respondent after considering the facts of the case as well as the documents placed before him, has come to the conclusion that there is no case of genuine hardship demonstrated by the petitioner and it is a sheer case of negligence for not filing the return of Income within the due date which was 31.7.2022 which was further extended to 7.11.2022. It was pointed out that the period of visit for medical check up of the petitioner was from 7.12.2022 to 31.01.2023 which is much beyond the due date of filing of the return and therefore, the reason given as “genuine hardship” for not filing the return by the petitioner is mere excuse which has rightly not been considered by the respondent to exercise the jurisdiction to condone the delay in filing the return of income by the petitioner. 8.1 It was submitted that as per the impugned order passed by the respondent, the petitioner failed to provide any reason much less any proper reason for genuine hardship for not filing the return of income for the year under consideration. It was pointed out that now the facility of filing the return of income is available online and the petitioner was not required to come to India to gather the details to file the return of income to claim the refund. 8.2 It was therefore, submitted that no interference is required to be made while exercising the extra-ordinary jurisdiction under Article 227 of the Constitution of India as in the facts of the case, there is no case made out by the petitioner to condone the delay under Section 119(2)(b) of the Act. 9. Having considered the rival submissions made by learned advocates for both the sides and in view of the settled legal position on this issue to condone the delay to file the return of income, we are of the opinion that the respondent ought to have taken into consideration the age of the petitioner as well as his medical condition, so as to condone the delay in filing the return of income so as to enable the petitioner to claim the refund of the tax deducted at source on the sole transactions of sale of the immovable property during the previous year to the relevant Assessment Year. It is also not in dispute that the petitioner was not required to file return of income as the petitioner was residing out of India for the sale transaction of the N.A. plot during the year under consideration. In such circumstances, when the petitioner has shown his difficulties bonafidely, honestly for not filing the return of income within the due date, the respondent was required to exercise the jurisdiction vested in him by Section 119(2)(b) of the Act in the facts of the case, liberally so as to enable the petitioner to get the refund as the said amount of refund belongs to the petitioner but for filing the return of income by the petitioner within the due date. It is also true that the petitioner is not entitled to any interest in view of the Circular No.9 of 2015 issued by the Central Board of Direct Taxes and the petitioner therefore, cannot be deprived of the amount of refund to which the petitioner is otherwise entitled to had the petitioner filed the return of income within the due date prescribed under the Act. 10. In view of the forgoing reasons the petition succeeds and is accordingly allowed. The impugned order dated 12.6.2024 passed by the respondent is hereby quashed and set aside. The matter is remanded back to the respondent to pass appropriate order to condone delay of 380 days in filing the return of income by the petitioner. Such exercise shall be completed within a period of 12 weeks from the date of receipt of the copy of this order. Rule is made absolute to the aforesaid extent. No order as to costs.