JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. Anand B.Gogia for the petitioner and learned Senior Standing Counsel Mr. Varun K. Patel for the respondent. 2. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 03.03.2023 passed by the Commissioner of Income Tax, Ahmedabad, rejecting the application dated 15.07.2022 filed by the petitioner under section 119(2)(b) of the Income Tax Act, 1961 (For short “the Act”) for condonation of delay in filing the return of income for the Assessment Year 2020-2021 and credit of tax deducted at source of Rs. 5,24,532/- and refund of TDS of Rs.5,07,790/-. 3. Brief facts of the case are that the petitioner is a non-resident Indian staying at United States of America. The petitioner travelled to India during the period from 13.12.2019 to 08.01.2020. The petitioner sold property being N.A. Land of Plot No.12, land admeasuring about 168.33 sq. mtrs, Plot No.21 land admeasuring 204.35 sq. mtrs and Plot No.22 land admeasuring 204.35 sq. mtrs situated at Village Vajdi (Virda) District and Sub- District Rajkot, for a consideration of Rs.1,90,00,000/- to M/s. Ashutosh Builders on 14.08.2019 during the financial year 2019-2020. 4. The above purchaser of the property deducted TDS of Rs. 5,09,600/- from the amount of sale consideration and deposited the same with the Income Tax department on 11.06.2022 and filed TDS return and hence credit of the same was reflected in the Form No. 26 AS for the Assessment Year2020-2021 after 11.06.2022. 5. The petitioner therefore, could not file the return for Assessment Year 2020- 2021 relevant to Financial year 2019-2020 as there was no credit of TDS reflected in Form 26 AS which was deducted by the purchaser of the property. It is the case of the petitioner that the petitioner could not travel to India due to Covid-19 pandemic situation from 13.05.2020 onwards as the petitioner was not having a valid VISA during the said period. 6. It is also the case of the petitioner that mother of the petitioner Smt. Hemlataben Rasiklal Chandrani passed away on 18.05.2022 in India and therefore, the petitioner could come to India only on 31.05.2022. The petitioner therefore, could not file the return within the prescribed time limit for the Assessment Year 2020-2021. 6. It is also the case of the petitioner that mother of the petitioner Smt. Hemlataben Rasiklal Chandrani passed away on 18.05.2022 in India and therefore, the petitioner could come to India only on 31.05.2022. The petitioner therefore, could not file the return within the prescribed time limit for the Assessment Year 2020-2021. The petitioner accordingly filed the application to condone the delay in filing the return for Assessment Year 2020-2021 under section 119(2)(b) of the Act so as to claim the refund of Rs. 5,07,790/-. 7. During the course of proceedings under section 119(2)(b) of the Act, notice dated 10.01.2023 was issued to provide an opportunity of hearing to the petitioner. The petitioner filed the written submissions and documentary evidence in response to the notice vide reply dated 17.01.2023 through email. 8. The respondent thereafter considering the submissions of the petitioner rejected the application to condone the delay for filing the return of income for Assessment Year 2020-2021 observing as under: “5. The contention of the assessee is not found tenable. The assessee has submitted that he has sold property in financial year 2019-20 and buyer has deducted TDS. He has also submitted that bank has deducted TDS on interest income. The assessee was well aware that TDS has been deducted on sale transaction of property and on interest income earned from the Bank. The assessee was in possession of sale deed, wherein details of TDS was available. However, the assessee has not filed return of income in time. The assessee with his application as well as during proceedings has not submitted any proof, which proves that the assessee had followed with the buyer in respect of TDS credit. Further the assessee has also not submitted relevant details in respect of sale transaction and supporting evidence in respect of calculation of capital gain. The assessee has also not submitted details of determination of indexed cost, which establish the correctness of income determination. The assessee was specifically asked vide this office notice dtd. 10.01.2023 to file written submission or the documentary evidence, which he may rely in support of his application and also to prove genuine hardship due to which he did not file return of income before due date and also genuine hardship being caused to him if the delay is not condoned. 10.01.2023 to file written submission or the documentary evidence, which he may rely in support of his application and also to prove genuine hardship due to which he did not file return of income before due date and also genuine hardship being caused to him if the delay is not condoned. The assessee has submitted in response to this notice that he could not travel to India because of covid restrictions because he was not in possession of OCI card and India government had cancelled all visa and prohibited non citizens from entering India. Since the facility for filing, the return is available online, the assessee could have filed the return from anywhere in the world. The assessee was not required to come to India to gather details to file ITR. Thus, it is clear that the assessee could not provide any reason for genuine hardship in filing ITR for the AY 2020-21 and such reason mentioned as above does not make a ground for any kind of relief and cannot be treated as genuine cause/hardship. 6. Further, the assessed was specifically requested to prove with documentary evidences his claim regarding genuine hardship caused to him. However, he has not produced any cogent evidence in this regard. I am, therefore, satisfied that the assessee has failed to file the return of income for the year under consideration within the prescribed time limit without any valid reasons and also failed to establish with necessary documentary evidence the genuine hardship caused to him if the delay is not condoned. Therefore, this is not a fit case for condonation of the delay. Accordingly, the assessee's application U/s. 119(2)(b) of the Act for the AY 2020-21 is hereby rejected.” 9. Learned advocate Mr. Anand Gogia for the petitioner submitted that the petitioner has been prevented from sufficient cause and was having genuine hardship for not filing the return of income for Assessment Year 2020-2021 for reason, firstly, on account of non-deposit of TDS deposited by the purchaser of the property till 11.06.2022 and inability of the petitioner to travel to India due to Covid-19 pandemic situation at the relevant point of time. 10. It was submitted that the respondent ought to have considered such facts of the case and ought to have condoned the delay in filing the return for Assessment year 2020-2021. 10. It was submitted that the respondent ought to have considered such facts of the case and ought to have condoned the delay in filing the return for Assessment year 2020-2021. It was further submitted that in response to the notice, the petitioner by reply dated 17.01.2023 has furnished all the details including the statement of computation of income. However, the respondent while passing the impugned order has failed to take into consideration such details and has committed an error in observing that the petitioner did not submit any computation of income of the capital gain. 11. It was therefore, prayed that the impugned order may be quashed and set aside, and the petitioner may be permitted to file the return of income for Financial Year 2020-2021 belatedly by condoning the delay. 12. On the other hand, learned Senior Standing Counsel Mr. Varun K. Patel for the respondent submitted that the respondent has passed the impugned order taking into consideration the aspect of absence of genuine hardship as the petitioner failed to file the return of income within the prescribed time as return can be filed on-line from anywhere in the world. It was therefore, submitted that the excuse given by the petitioner for not being able to come to India during Covid-19 pandemic situation was rightly not accepted by the respondent while rejecting the application of the petitioner to condone the delay in filing the return. In support of his submissions, reliance was placed on the following averments made in affidavit in reply filed on behalf of the respondents: “5. It is submitted that the assessee with his application as well as during proceedings has not submitted any proof, which proves that the assessee had followed up with the buyer in respect of TDS credit. Further the assessee has also not submitted relevant details in respect transaction of sale and supporting evidence in respect of calculation of capital gain of indexed cost, which establish the correctness of income determination. It is submitted that vide notice dated 10.01.2023 the assessee was specifically asked to file written submission or the documentary evidence, which he may rely in support of his application and also to prove genuine hardship due to which he did not file return of income before due date and also genuine hardship being caused to him if the delay is not condoned. The assessee has submitted in response to the said notice that he could not travel to India because of covid restrictions because he was not in possession of OCI card and India government had cancelled all visa and prohibited non-citizens from entering India. Since the facility for filing the return is available online, the assessee could have filed the return from anywhere in the world. The assessee was not required to come to India to gather details to file ITR. Thus, it is clear that the assessee could not provide any reason for genuine hardship in filing ITR for the AY 2020-21 and such reason mentioned does not make a ground for any kind of relief and cannot be treated as genuine cause/hardship. 6. It is submitted that the assessee's claim is not rejected on hyper technical ground of delay. The application for condonation of delay in filing of return of income for claiming refund was rejected due to the fact that the assessee failed to prove the genuine hardship being caused to him if the delay is not condoned. 7. It is submitted that though it is true that the phrase "genuine hardship" should be construed liberally, however, the assessee is liable to prove genuine hardship' with documentary evidence. In the present case, the assessee has failed to prove the genuine hardship being caused to him if the delay is not condoned. 8. It is submitted that the due dates for filing of return were extended by the CBDT due to Covid- 19 pandemic and the facility to file the return accordingly was also available in the portal. Even then the assessee failed to file his return of income during relaxation period. It is submitted that the assessee could have claimed the amount of TDS paid in excess as refund by filing the return of income within due date. As the assessee failed to prove the genuine hardship assessee's application u/s.119(2)(b) was rejected by the impugned order. The department issues refund to all the assessees as per law and the law does not permit any IT exception. Therefore, the allegation of the assessee is against the provision of law.” 13. Referring to the above averments, it was submitted that the respondent has rightly dismissed the application filed by the petitioner in absence of compliance of the show cause notice by the petitioner. 14. Therefore, the allegation of the assessee is against the provision of law.” 13. Referring to the above averments, it was submitted that the respondent has rightly dismissed the application filed by the petitioner in absence of compliance of the show cause notice by the petitioner. 14. Considering the submissions made by the learned advocates for both the sides and in view of the fact that the petitioner is a non-resident staying at USA was genuinely prevented from filing the return in view of Covid-19 pandemic situation, the respondent ought to have condoned the delay in filing the return for Assessment Year 2020-2021. It is also not in dispute that the petitioner has furnished computation of income along with computation of long-term capital gain along with reply dated 17.01.2023 filed in response to the notice dated 10.01.2021 issued by the respondent which is placed on record. 15. On perusal of the Form 26 AS for AY 2020-2021, it is also found that the purchaser of the property namely M/s. Ashutosh Builders deposited the amount of TDS which was deducted at the time of purchase in the year 2019 only on 11.06.2022. Therefore, the petitioner was not able to file the return for Assessment Year 2020-2021 claiming the refund in view of late deposit of TDS by the purchaser of the property. 16. In view the aforesaid facts and circumstances of the case, the impugned order dated 03.03.2023 passed under section 119(2)(b) of the Act is not tenable and is accordingly quashed and set aside and delay in filing the return of income for A.Y. 2020-21 is required to be condoned to permit the petitioner to file return of income for Assessment Year 2020- 2021 belatedly claiming the refund of Rs. 5,07,790/- as per the computation of income placed on record at Annexure-F of the paper book. The respondent is therefore directed to pas a fresh denovo order condoning delay in filing the return of income for A.Y.2020-21 by the petitioner within twelve(12) weeks from the date of receipt of copy of this order. 17. Rule is made absolute to the aforesaid extent. No order as to costs.