JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr.Shyam Nayak for learned advocate Mr.Arjun R. Sheth for the petitioner and learned Senior Standing Counsel Mr.Varun K. Patel with learned advocate Mr.Dev D. Patel for the respondent. 2. Rule, returnable forthwith. Learned Senior Standing Counsel Mr.Varun K. Patel waives service of notice of rule for and on behalf of the respondent. 3. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing and setting aside the order dated 24th March, 2022 passed by the respondent-Commissioner of Income Tax (IT&TP), Ahmedabad under Section 119(2)(b) of the Income Tax Act, 1961 (for short ‘the Act’) whereby, the application to condone the delay occurred in filing the return of income by the petitioner for the Assessment Year 2017-18 is rejected on the ground that there is no genuine hardship demonstrated by the petitioner. 4. The brief facts of the case are as under : 4.1. The petitioner is a Non-Resident Indian settled in USA since 2013 and was an employee of Mphasis Corporation (USA) which is wholly owned foreign subsidiary of an Indian Company i.e. Mphasis Limited. 4.2. During the year under consideration, i.e. for Assessment Year 2017-18, the petitioner sold 24524 shares of Mphasis Limited through broker ICICI Securities and the sale consideration on sale of Short Term Capital Gain Shares are of Rs.1,36,78,623/- and a TDS amounting to Rs.24,30,692/- was deducted under Section 195 of the Act. 4.3. Accordingly, the petitioner was entitled to get a refund of Rs.22,23,150/- as per the following computation : Sale Price of Shares (Short Term) 1,36,78,623 Less: Purchase cost 1,23,35,319 Capital Gain 13,43,304 Short Term Capital Gain Tax @ 15.45% 2,07,541 TDS deducted by ICICI Securities 24,30,691 Excess Tax deducted which should be refunded 22,23,150 4.4. It is the case of the petitioner that the petitioner could not file the return as provided under Section 139(1) or Section 139(4) of the Act as the petitioner was residing in USA and only when the petitioner visited India in January, 2019 and met his tax consultant, he came to know about the amendment and that the return could have been filed only upto the end of the Assessment Year. The petitioner therefore preferred an application under Section 119(2)(b) of the Act before the Principal Commissioner of Income Tax-I, Indore on 10.01.2019 along with Form 26AS, Computation of Income and Passport to claim the refund amounting to Rs.22,23,150/-. 4.5. The petitioner thereafter received a letter dated 1st February, 2019 intimating that his application under Section 119(2)(b) of the Act was forwarded to Income Tax Officer (IT&TP), Bhopal and thereafter, by letter dated 05.02.2019, it was informed that the application of the petitioner is transferred to the respondent. 4.6. It is the case of the petitioner that as no updates were received by the petitioner, reminder request letter dated 7th June, 2019 was sent by the petitioner. The petitioner thereafter was informed by the letter dated 18.09.2019 by the Income Tax Officer (IT&TP), Bhopal to furnish explanation regarding facing genuine hardships along with the documentary evidences for non-filing of the return within prescribed time limit and to submit the duly filed checklist proforma. 4.7. In response to the aforesaid notice, the petitioner filed the detailed reply and explanation on 14.10.2019. 4.8. The petitioner also submitted a grievance through ITBA portal online on 30th January, 2021 to the Income Tax Officer (IT&TP), Bhopal that his application under Section 119(2)(b) of the Act was not processed and was pending since long. 4.9. The petitioner thereafter submitted an application dated 31.01.2022 before the respondent which was rejected by the impugned order dated 24th March, 2022. Being aggrieved and dissatisfied by the said order dated 24th March, 2023, the petitioner has preferred this petition. 5.1. Learned advocate Mr.Shyam Nayak for the petitioner submitted that in the facts of the case, when the petitioner is residing at USA, it is not in dispute that he could not file return in time in view of the amendment of Section 139(4) of the Act which restricted the time of filing of return upto end of the Assessment Year only. It was submitted that as soon as the petitioner came to know about non- filing of the return for the year under consideration, the application under Section 119(2)(b) of the Act was preferred which was rejected by the respondent only on the ground that the petitioner ought to have filed the return within the prescribed time limit as the return of income is to be filed online and as the petitioner failed to file return online, the delay in filing the return cannot be condoned. 5.2. It was submitted that it is not in dispute that the petitioner is entitled to get the refund amounting to Rs.22,23,430/- pursuant to the sale of the shares as per the computation of income provided to the respondent. It was therefore submitted that the respondent ought to have condoned the delay occurred in filing the return so as to enable the petitioner to get the refund. It was submitted that the respondent ought to have considered the application to condone the delay as the petitioner was not entitled to the interest as per the Circular No.9 of 2015, if the delay in filing the return is condoned by the respondent and therefore, there was no loss to the Revenue and the petitioner was entitled to the amount of TDS which was deducted from the sale consideration and therefore, entitled to the refund without interest. 6.1. On the other hand, learned Senior Standing Counsel Mr.Varun Patel for the respondent submitted that the petitioner has preferred this petition after a period of more than one year as the impugned order was passed on 24th March, 2022. It was also pointed out that the respondent has exercised the jurisdiction only as an administrative control for the matters relating to International Taxation & Transfer Pricing in the State of Gujarat and Madhya Pradesh, however, as the case of the petitioner falls within the territorial jurisdiction of the Assessing Officer being Income Tax Officer (IT&TP), Bhopal, Madhya Pradesh, the petitioner ought to have preferred the Writ Petition before the Hon’ble High Court of Madhya Pradesh at Jabalpur. It was therefore submitted that the petitioner may be directed to approach the proper Forum as this Court has no jurisdiction to entertain such petition. 6.2. It was therefore submitted that the petitioner may be directed to approach the proper Forum as this Court has no jurisdiction to entertain such petition. 6.2. It was further submitted that the impugned order rejecting the application of the petitioner under Section 119(2)(b) of the Act is just, proper and legal as observed therein that it is hard to believe that the person of stature of the assessee and the qualification possessed by him did not know about the deduction of tax at source on sale of shares for huge consideration. It was also submitted that ignorance of law pleaded by the petitioner cannot be considered to be valid ground and/or sufficient cause for condonation of delay in filing the return as it is well settled principle of law that ignorance of law is not an excuse and therefore, the application filed by the petitioner under Section 119(2)(b) of the Act was rightly rejected by the respondent and no interference may be made in the impugned order while exercising extra-ordinary jurisdiction under Article 226 of the Constitution of India. 7. Having heard the learned advocates for the respective parties and considering the fact of the case that the respondent has exercised the jurisdiction under Section 119(2)(b) of the Act at Ahmedabad which is within the jurisdiction of this Court, this petition is required to be entertained. 8. The respondent while rejecting the application of the petitioner has observed as under : “4. I have gone through the application along with submission of the assessee and the same have been considered and placed on record. The power of condonation of delay, has been delegated by the CBDT, vide Circular No.9/2015 (F.No.312/22/2015-01) dated 09/06/2015. One of the basic conditions as per the said circular is that the authority concerned is required to examine whether the case of the applicant is of genuine, hardship on merits or not. The combined reading of section 119(2)(b) of the Act and the CBDT Circular suggests that the delay may be condoned if failure to condone the delay causes genuine hardship to the assessee, no matter whether the delay in filing the return is meticulously explained or not. The genuine hardship contemplated under section 119(2)(b) of the Act obviously is financial hardship caused to the assessee if the delay is not condoned. The genuine hardship contemplated under section 119(2)(b) of the Act obviously is financial hardship caused to the assessee if the delay is not condoned. In this regard, reliance is also placed on the decision given in the case of Pala Marketing Co-op. Society Ltd. Vs. Union of India, (2008) 167 Taxman 238 (Ker.). 5. The contention of the assessee as mentioned above is not found tenable. The assessee's primary contention is that he is a non-resident and had no knowledge of deduction of TDS by ICICI Securities on sale of shares by him and was also unaware of the provisions of income tax regarding filing of return of income for getting refund. It is also contended by the assessee that he being a non-resident was not in India during the period available for filing the return of income and he was not filing his return of income and he was not filing his return of income in India since AY 2009-10 as he had no income in India. It is hard to believe that a person of assessee’s stature and qualification did not know about deduction of huge tax on sale of shares for huge consideration. The assessee would have definitely seen his bank account at the time of receipt of sale consideration net of TDS. In the given facts and circumstances, his contention appears to be an afterthought only. Otherwise also, the assessee's contention regarding lack of awareness about law cannot be considered as a valid ground for condonation of delay in filing of return of income. Further, it is a fact that the income tax return filing facility is available online on e-fling portal since 2007-08. The assessee can file return through this portal from anywhere in the world. In the assessee's case, the assessee could have filed his return of income for the year under consideration through this portal from the place of his stay. Therefore, the assessee is not required to come to India for filing his return of income. However, the assessee has failed to file his return of income for the year under consideration within the prescribed time limit. The assessee has also not furnished anything to prove that he faces genuine hardship if the delay in filing the return of income is not condoned. 6. However, the assessee has failed to file his return of income for the year under consideration within the prescribed time limit. The assessee has also not furnished anything to prove that he faces genuine hardship if the delay in filing the return of income is not condoned. 6. It is gathered from the application of the assessee that the only purpose of filing the return of income is to obtain refund. This provision is in no way meant to give an extended time to the assessee for claiming refund. The assessee is expected to follow the provisions of the Act and for this ignorance of law cannot be an excuse. 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. Further, he also, failed to establish the genuine hardship/caused to him if the delay is not condoned. This is the basic requirement/pre-requisite laid down in all the case laws relied upon by the assessee as well as the undersigned. Therefore, in view of the foregoing discussion, it is held that 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 A.Y. 2017-18 is hereby rejected.” 9. On perusal of the above findings, it is apparent that the respondent has ignored the fact that the petitioner was not residing in India and could not file the return of income within the prescribed time limit. It also appears from the facts on record that it is not in dispute that the petitioner is entitled to the refund of Rs.22,23,430/- as computed by the petitioner out of the tax deducted at source. It also appears from the facts on record that it is not in dispute that the petitioner is entitled to the refund of Rs.22,23,430/- as computed by the petitioner out of the tax deducted at source. In such circumstances, when the petitioner is entitled to the amount of the tax deducted at source, which is not denied by the respondent either in the impugned order or in the affidavit-in-reply filed on behalf of the respondent, we are of the opinion that the rejection of the application to condone the delay by the respondent on the ground that the petitioner was having the knowledge of filing the return or on the ground that the petitioner could have filed the return online is not tenable, as it would amount to unjust enrichment by the State by not straying the amount due to the petitioner, more particularly, when the petitioner is not entitled to any interest on such refund, if the delay is condoned and the petitioner is permitted to file the return of income for the Assessment Year 2017-18 in accordance with law. 10. Therefore, the impugned order dated 24 th March, 2022 is hereby quashed and set aside and the respondent is directed to pass a fresh de-novo order condoning the delay occurred in filing the return of income by the petitioner for Assessment Year 2017-18. Such exercise shall be completed within a period of twelve weeks from the date of receipt of the copy of this order. Rule is made absolute to the aforesaid extent. No orders as to cost.