A.C. SURGIPHARMA PRIVATE LIMITED vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1) & ANR.
What did the High Court hold?
The High Court disposed of the writ petition with a direction to the CBDT to process the petitioner's request contained in Form 10-IC. The Court noted that the petitioner fulfilled the conditions stipulated in paragraph 3 of CBDT Circular No. 19/2023, which condoned the delay in filing Form 10-IC for the relevant assessment year. The CBDT was directed to process the prescribed form within eight weeks from the receipt of the order. The interim order, which prevented precipitate action against the petitioner regarding the demand, was to continue pending the processing of the form and for three weeks thereafter, in case the outcome was adverse to the petitioner. The Court did not explicitly decide on the question of whether an opportunity to correct the omission should have been granted, but rather acted upon the subsequent CBDT circular.
What were the facts?
The petitioner, A.C. Surgipharma Private Limited, filed a writ petition challenging an intimation dated 13.11.2022 issued by the Deputy Commissioner of Income Tax under Section 143(1) of the Income Tax Act, 1961. This intimation raised a demand of Rs. 1,03,94,820/-. The petitioner's primary grievance was that the demand was raised solely because it failed to file Form 10-IC, despite opting for taxation at the concessional rate of 22% under Section 115BAA of the Act in its income tax return for Assessment Year 2021-2022. The petitioner argued that it should have been granted an opportunity to correct this omission. For Assessment Year 2022-2023, the petitioner had filed Form 10-IC. Subsequently, the CBDT issued Circular No. 19/2023 on 23.10.2023, condoning delays in filing Form 10-IC under certain conditions.
What were the issues?
1. Whether the Assessing Officer should have granted an opportunity to the assessee to correct the omission of filing Form 10-IC before issuing the intimation under Section 143(1) of the Income Tax Act, 1961, when the return indicated the option to be taxed under Section 115BAA? Assessee's Contention: The petitioner argued that an opportunity to correct the course should have been provided before the impugned intimation was passed. They also relied on CBDT Circular No. 19/2023, which condones the delay in filing Form 10-IC, stating that they now fulfill the conditions stipulated therein. Revenue's Contention: The revenue contended that the provisions of Section 115BAA and Rule 21AE clearly mandate the filing of Form 10-IC along with the return. They also pointed out that an alternate remedy was available under Section 246A of the Act.
Which sections of the Income-tax Act were involved?
Section 115BAA,Section 143(1),Section 119(2)(b),Section 139(1),Section 246A
AI-generated summary — verify with the full judgment below
W.P.(C)No.17057/2022 Page 1 of 4
$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI
Decision delivered on: 30.11.2023 + W.P.(C) 17057/2022
A.C. SURGIPHARMA PRIVATE LIMITED ..... Petitioner
Through: Mr Vibhor Garg, Adv.
versus
DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 1(1) & ANR.
..... Respondents Through: Mr Sanjeev Menon, Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE GIRISH KATHPALIA
[Physical Hearing/Hybrid Hearing (as per request)]
RAJIV SHAKDHER, J. (ORAL): 1. On 14.12.2022, after hearing learned counsel for the parties, we had broadly set out the grievance of the petitioner. For convenience, the relevant part of the order dated 14.12.2022 is extracted hereafter: “2. A challenge in this writ petition is laid to the impugned intimation dated 13.11.2022 issued by respondent no.2 under Section 143(1) of the Income Tax Act, 1961 [in short “Act”]. 2.1 Via this intimation, a demand amounting to Rs.1,03,94,820/- has been raised against the petitioner. 3. The principal grievance of the petitioner is, that although in the income tax return, enough and more information had been given, that the petitioner has opted for being taxed at the rate of 22% as provided under Section 115BAA of the Act, the impugned order was passed, only on account of the fact that the petitioner had failed to file Form 10-IC.
Digitally Signed By:ATUL JAIN Signing Date:08.12.2023 11:38:58 Signature Not Verified
W.P.(C)No.17057/2022 Page 2 of 4
It is the submission of Mr Vibhor Garg, who appears on behalf of the petitioner, that before passing the impugned intimation dated 13.11.2022, an opportunity could have been granted to the petitioner, to correct course. 4.1 To be noted, in the instant writ petition, we are concerned with Assessment Year (AY) 2021-2022. 5. Mr Garg informs us, that for AY 2022-2023, once again, in accordance with the provisions of sub-section (5) of Section 115BAA of the Act, the petitioner continued to opt for being taxed at the rate of 22%, and has accordingly indicated the option in the prescribed form i.e., Form 10-IC. 6. Mr Zoheb Hosaain, who appears on behalf of the respondent/revenue, on the other hand, says that the provisions of Section 115BAA and Rule 21AE clearly mandate that Form 10-IC should be filed, along with the return. 6.1 Mr Hossain also says, that there is an alternate remedy available under Section 246A of the Act. 7. Perhaps, the issue that requires consideration, is that if every information that is sought for in the form is available with the return, and there is indication in the return, that the assessee has exercised his option in terms of sub-section (1) of Section 115BAA, then, before proceeding further, should the Assessing Officer (AO) not give an opportunity to the assessee [in this case the petitioner] to make course correction? 8. We may note, that when the provision i.e., Section 115BAA was inserted, the Central Board of Direct Taxes (CBDT) via circular dated 17.03.2022 had relaxed the rigour of the law, in exercise of its powers under Section 119(2)(b) of the Act. 9. To our minds, the matter requires to be delved into. 10. Accordingly, issue notice. 10.1 Mr Zoheb Hossain accepts notice on behalf of the respondents/revenue. 11. Counter-affidavit will be filed within the next four weeks. 11.1 Rejoinder thereto, if any, be filed before the next date of hearing. 12. List the matter on 19.05.2023. 13. In the meanwhile, no precipitate action will be taken against the petitioner in respect of the demand raised via the impugned intimation dated 13.11.2022, till further orders of the Court.”
As would be evident from the aforesaid extract, the only reason that the petitioner was not taxed at the rate of 22%, as provided under Section 115BAA of the Income Tax Act, 1961 [in short, “Act”], was on account of the fact that it failed to file Form 10-IC.
Digitally Signed By:ATUL JAIN Signing Date:08.12.2023 11:38:58 Signature Not Verified
W.P.(C)No.17057/2022 Page 3 of 4
Mr Garg has placed before the court Circular No.19/2023 dated 23.10.2023 issued by the Central Board of Direct Taxes (CBDT) which, in effect, condones the delay in filing Form 10-IC. In this regard, Mr Garg draws our attention to paragraph 3 of the aforementioned circular, which is extracted hereafter: “3. On consideration of the matter, with a view to avoid genuine hardship to the domestic companies in exercising the option u/s 115BAA of the Act, CBDT in exercise of the powers conferred under section 119(2)(b) of the Act, hereby directs that: - The delay in filing of Form No. 10-IC as per Rule 21AE of the Rules for previous year relevant to A.Y. 2021-22 is condoned in cases where the following conditions are satisfied: (i) The return of income for relevant assessment year has been filed on or before the due date specified under section 139(1) of the Act; (ii) The assessee company has opted for taxation u/s 115BAA of the Act in item (e) of "Filing Status" in "Part A-GEN" of the Form of Return of Income ITR-6; and (iii) Form No. 10-IC is filed electronically on or before 31.01.2024 or 3 months from the end of the month in which this Circular is issued, whichever is later.”
We are informed by Mr Garg that in terms of the said circular, a fresh Form 10-IC has been filed, albeit, electronically. 5. Accordingly, Mr Garg says that the petitioner fulfills the conditions referred to in paragraph 3 of the said circular. 6. In these circumstances, the writ petition is disposed of, with a direction to the CBDT to process the petitioner’s request contained in Form 10-IC. 7. The CBDT will process the aforementioned prescribed form within eight (8) weeks from the date of receipt of the order passed today.
Digitally Signed By:ATUL JAIN Signing Date:08.12.2023 11:38:58 Signature Not Verified
W.P.(C)No.17057/2022 Page 4 of 4
The interim order dated 14.12.2022, which was made absolute on 19.05.2023, shall continue to operate pending the aforementioned exercise, and for further three (3) weeks, in case the result is adverse to the interest of the petitioner. 9. Parties will act based on the digitally signed copy of the order.
RAJIV SHAKDHER, J
GIRISH KATHPALIA, J NOVEMBER 30, 2023/aj
Digitally Signed By:ATUL JAIN Signing Date:08.12.2023 11:38:58 Signature Not Verified
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