NIRAJITA MITRA,HYDERABAD vs. ITO., WARD-12(4), HYDERABAD

The brief facts of the case are that assessee is an individual has filed her return of income on 17.07.2017 for A.Y. 2017-18 admitting a total taxable income of Rs.95,01,860/-. Subsequently, the case was selected for scrutiny under CASS to verify the ‘Foreign Asset’. Notices u/s 143(2) dt.17.08.2018 and notice(s) u/s 142(1) dt.25.03.2019, 19.09.2019 were issued through ITBA calling for certain information i.e., In response to the notices, assessee uploaded the information as called for electronically and explained the details of total foreign assets / foreign bank accounts maintained by the assessee. After verification of the information furnished by the assessee, Assessing Officer had made certain additions and completed the assessment u/s 143(3) of the Act and passed assessment order dt.13.11.2019. Further, as the assessee had underreported the income for the year under consideration, Assessing Officer had initiated penalty proceedings by issuing notice u/s 274 r.w.s 270A of the Act on 13.11.2019 and thereafter, levied penalty of Rs.31,301/- u/s 270A of the Act.

Feeling aggrieved by the order passed by the assessing officer, assessee filed appeal before the Ld. CIT(A) / NFAC, who granted partial relief to the assessee.

Feeling aggrieved with the order of ld.CIT(A)/NFAC, assessee is now in appeal before us.

In this case, there was mistake on the part of the assessee in disclosing the foreign income in return of income, which was duly mentioned in para 2 of the order of Assessing Officer. During the course of assessment, the assessee had admitted the mistake. As per the opinion of the Assessing Officer,

The ld. AR for the assessee has drawn our attention to Para 4.4. of the order passed by the ld.CIT(A) which is to the following effect :

It was the contention of the ld. AR that the ld.CIT(A) has not condoned the delay of 4 days and dismissed the application for grant of immunity and confirmed the penalty. It was further submitted by the ld. AR that the matter may kindly be remitted back to the ld.CIT(A) with a direction to consider the request for condonation of delay in filing the application for granting immunity u/s 270AA of the Act.

Per contra, the ld. DR had vehemently opposed and submitted that the authorities below have no power to condone the delay.

We have heard the rival submissions and perused the material on record. U/s 270AA of the Act, the assessee is required to make an application to the Assessing Officer to grant an immunity for imposition of penalty u/s 270AA of the Act and the said application is required to be filed within one month in the end of the month, in which the order has been received by the assessee. Admittedly, the assessee after receipt of the order, assessee had filed an application for grant of immunity with a delay of 4 days. As the application was not moved within the period of 30 days, the Assessing Officer had passed the order against the assessee without granting the immunity u/s 270AA of the Act. From the reading of section 270AA of the Act, it is clear that nowhere it is mentioned that in case the assessee filed Form 68 after a period of 30 days, then the Assessing Officer / ld.CIT(A) was not empowered to condone the delay in filing the requisite form. As per clause 4 of section 270AA of the Act, it casts a duty on the Assessing Officer to mandatorily pass order accepting or rejecting such application, if filed by the assessee.

In the present case, though, it is required by law for the assessee to move an application within one month as per clause 2 of section 270AA, however, there is no provision which prohibits the assessee to move an application thereafter whereby he was prevented from filing the application within a period of limitation. Even if the assessee had filed the application belatedly, the Assessing Officer was duty bound to pass an order as per clause 4 of section 270AA of the Act either accepting or rejecting the

Nonetheless, the whole purpose of granting immunity to the assessee is to give quits to the litigation in case assessee accepts and pays due taxes. In light of the above said observation, we deem it appropriate to remand back the matter to the file of ld.CIT(A) with a direction to consider and condone the delay in filing the application for grant of immunity u/s 270AA of the Act, if ld.CIT(A) considered that the assessee has a reasonable cause for not filing the application for grant of immunity within the period as provided under the Act. In light of the above, the appeal of the assessee is allowed for statistical purposes.

In the result, the appeal of the assessee is allowed for statistical purposes.