NEPTUNUS POWER PLANT SERVICES PRIVATE LIMITED,NAVI MUMBAI vs. CPC, BANGALORE

This appeal is filed by the assessee / appellant against the appellate order passed by National faceless appeal Centre (NFAC), Delhi (the learned CIT – A) for assessment year 2021 – 22 on 31/05/2023. 02. By This appellate order appeal filed by the assessee against the intimation issued under section 143 (1) of The Income Tax Act, 1961 (The Act) on 13/11/2022 by the central processing Centre, Bangalore (the AO) wherein the assessee is denied the benefit of lower rate of taxes at the rate of 22% instead of 30% in terms of provisions of section 115BAA of the income tax act, was dismissed. 03. Grievance raised in the memorandum of appeal shows that assessee should have been taxed at the rate of 22% instead of 30% under the provisions of section 115BAA of the income tax act. 04. Fact shows that i. Assessee filed its return of income in ITR 6 on 15/3/2022 declaring total income of ₹ 63,748,840/– selecting the option of taxation under section 115BAA of the act. ii. assessee is a domestic company claims that it has opted for alternative tax regime under section 115BAA of the income tax act for assessment year 2021 – 22 iii. However, Assessee has failed to furnish form number 10 IC as required under rule 21AD of the Income Tax Rules, 1962. iv. The assessee was denied the above option as per intimation under section 143 (1) of the act by intimation dated 13/11/2022. v. Therefore at the time of processing the return of income for that assessment year under section 143 (1) of the act claim for alternative tax regime under section 115BAA has not been considered by the central processing Centre and therefore the assessee was asked to pay the tax at the normal rate applicable to a domestic resident company. vi. According to the intimation assessee was assessed at the same income but the tax payable was determined at ₹ 16,937,782/– instead of a sum of ₹ 1,38,82,820/– as per serial number 36 of the intimation under section 143 (1) of the act. vii. Accordingly, tax demands were raised.

Assessee preferred an appeal before national faceless appeal Centre against the above intimation. The fact shows that assessee is a domestic company claims that it has opted for alternative tax regime under section 115BAA of the income tax act for assessment year 2021 – 22 but has failed to furnish form number 10 IC as required under rule 21AD of the IT Rules, 1962. In the return of income, filed by the assessee on 15/3/2022 before the extended due date under section 139 (1) of the act claiming that it has exercised the option to be assessed under section 115BAA of the act. However, assessee did not file form number 10 IC and also did not show that whether the total turnover/gross receipts in the previous year 2018 – 19 exceeds ₹ 400 crore or not. Before the CIT – A assessee also confirmed that it has not filed form number 10 IC within the prescribed due date as required under rule 21AD of the Rules for opting for taxation under alternate tax regime.

The learned CIT – A after considering the explanation of the assessee held that provisions of section 115BAA – that the option should be exercised on or before the due date of filing of the return of income under section 139 (1) and the option has to be exercised under subsection (5) of section 115BCA of the act by filing form number 10 IC under rule 21AE of the income tax rules, 1962. As the assessee did not file form number 10 IC as required, the learned CIT – A refused the claim of the assessee of lower tax regime. The learned CIT – A also relied upon the decision of the coordinate bench in case of Suminter India organics Private Ltd versus Deputy Commissioner of income tax in ITA number 889/MUL/2022 dated 26/7/2022 and Bholanath precision engineering private limited versus CIT, NFAC in ITA number 1997/M/2022 dated 23/11/2022 wherein it was held that filing of form number 10 IC is mandatory to avail the alternate tax provisions. The learned CIT – A also held that there is no power available with the CIT – A and any other authority for condonation of delay in filing form number 10 IC by relying on circular number 06/2022 dated 17 March 2022 holding that the circular also does not come to the rescue in assessee’s case. He further held that assessee is not seeking a condonation of delay in filing form number 10 IC since it has not filed it until the date of appellate order. According to him, the assessee is seeking exemption from filing such form. The learned CIT – A further relied upon the decision of the honourable Supreme Court in case of Chandra Kishor Jha v Mahavir Prasad (1999) 8 SCC 266 wherein it has been held that if a statute provides for to be done in a particular manner, then it has to be done in that manner and in no other manner. Thus, the appeal of the assessee was dismissed.

Aggrieved, appellant is in appeal before us.

Now we find that the CBDT has issued circular number 19/2023 dated 23 October 2023 regarding condonation of delay under section 119 (2) (b) of The Income Tax Act 1961 in filing form number 10 IC for assessment year 2021-22. According to this form number 10 –IC can be filed electronically on or before 31/1/2024 three months from the end of the month in which the circular is issued, whichever is later. In view of this is still there is a time available for the assessee to file such form which is the only reason for disallowance of lower tax rate claim of the assessee, we restore the issue back to the file of the learned assessing officer to decide it afresh if the assessee files such form number 10 – IC for the impugned assessment year. Assessee is directed, if it wishes to avail benefit of the lower taxation, who filed the above form in the manner prescribed and comply with the circular dated 23 October 2023. 09. Accordingly, appeal of the assessee is allowed for statistical purposes.