RIGHT HEALTH PLATTER PVT. LTD,CHENNAI vs. ITO, CORPORATE WARD-2)2), CHENNAI

1. This is an appeal preferred by the assessee against the order of the Learned Commissioner of Income Tax (Appeal)/Addl. JCIT(A), (hereinafter in short "theLd.CIT(A)”), Thane, dated 07.02.2024 for the Assessment Year (hereinafter in short "AY”) 2022-23 confirming the action of the CPC order/intimation passed u/s.143(1) of the Income Tax Act, 1961 (hereinafter in short "the Act”).

At the outset, the Ld.AR of the assessee submitted that the assessee filed its return of income (RoI) for AY 2022-23 on 29.09.2022 showing ‘NIL’ income after claiming deduction of Rs.14,53,40,667/- u/s.80-IAC of the Act under Part-C of Chapter VI-A. However, the CPC processed the return u/s.143(1) of the Act on 16.03.2023 denying deduction claimed to the tune of Rs.14,53,40,667/- since assessee failed to file Form No.10CCB (one month prior to due date of filing of RoI u/s.139(1) of the Act).

Aggrieved, the assessee preferred an appeal before the Ld.CIT(A)

who dismissed the same citing the decision of the Hon’ble Supreme Court in the case of PCIT v. Wipro Ltd., reported in [2022] 446 ITR 1 (SC) and aggrieved by the action of the Ld.CIT(A), the assessee has preferred this appeal before this Tribunal.

Assailing the action of the Ld.CIT(A), the assessee submitted that the present appeal emanates from an order u/s.143(1) of the Act for the A.Y.2022-23, wherein the deduction claimed by the assessee u/s.80IAC of the Act was disallowed for the reason that the Form No.10CCB was not e- filed. And brought to our notice the relevant dates & events which happened in this case, which can be seen as depicted in the chart below:

According to the Ld.AR, it can be seen from the above table [date & events] that the assessee had filed its ROI and audit report on 29.09.2022 within the due date. However, when the assessee attempted to file the Form No.10CCB, it couldn’t upload the same electronically due to some glitches on the e-filing portal. Hence, the assessee promptly tried to file the same physically before the JAO vide letter dated 29.09.2022 (refer Page 3 of PB) but didn’t receive permission from the AO for filing the same. In such circumstances, the CPC passed the adverse order denying sec.80IAC deduction, which according to assessee ought not to have been passed against the assessee. Nevertheless, the assessee brought to the notice of the Ld.CIT(A) the aforesaid facts regarding the assessee’s inability to file Form No.10CCB electronically and that it was not permitted to file the same physically before the AO, but the Ld.CIT(A) didn’t bother to adjudicate on this assertion made by the assessee and dismissed the appeal by blaming its omission for uploading Form 10CCB by relying on the Hon’ble Supreme Court’s decision in the case of PCIT vs. Wipro Ltd. [2022] 446 ITR 1 (SC). However, the Ld AR asserted that the case law PCIT vs. Wipro Ltd, supra relied by Ld CIT(A) is not applicable to the present case because assessee is merely claiming a deduction under Chapter VIA of the Act whereas the Hon’ble Supreme Court in Wipro Ltd supra, dealt with a case wherein claim of exemption was u/s.10B of the Act i.e., Chapter III of the Act. According to the Ld.AR, such a distinction was taken note by the Hon’ble Supreme Court itself at para 11 of its order (Wipro order) which is extracted under:

Thus, it was pointed out that the decision of the Hon’ble Supreme Court in Wipro (supra) cannot be applied to the assessee’s case. And since the Ld CIT(A) has not adjudicated the matter in the light of the assessee’s assertion regarding its inability to e-file the Form No.10CCB due to technical glitches, and the assessee’s attempt to file the same physically before the AO well within the due date, which is shown by the assessee in the Chart below, it was prayed that this issue may be remanded back to the file of the Ld.CIT(A) for his decision/adjudication considering the bona fide action of the assessee.

Per contra, the Ld.DR couldn’t controvert the aforesaid submissions made by the Ld.AR.

Having heard both the parties, we note that the present appeal emanates from an order u/s.143(1) of the Act for the A.Y.2022-23, wherein the deduction claimed by the assessee u/s.80-IAC of the Act was disallowed for the reason that Form No.10CCB was not e-filed. The assessee had filed its RoI on 29.09.2022; and according to the Ld.AR, the Audit Report [Form No.10CCB] was ready and they tried to upload it electronically on the same day, but due to technical glitches on the e- filing portal, assessee couldn’t upload Form No.10CCB on the same day which omission/inability to do so was beyond the control of the assessee and the assessee shouldn’t be penalized for it. According to the Ld.AR, the bona fide action of the assessee in this regard can be seen from the fact that the assessee immediately requested the JAO by duly filing a letter on the same day informing its inability to upload Form No.10CCB and also its willingness to file hard copy of Form No.10CCB (refer Page No.3 of the Paper Book). However, it was brought to our notice that the JAO didn’t respond/gave him permission for filing the same. On appeal, the Ld.CIT(A) brushed aside the assessee’s aforesaid submissions and has merely relied on the decision of the Hon’ble Supreme Court in the case of Wipro Ltd. (supra) to disallow the deduction claimed under Chapter-IVA on the ground that assessee failed to file electronically Form 10CCB within the due date. We don’t countenance such an action of the Ld.CIT(A), because, the decision of the Hon’ble Supreme Court in the case of Wipro Ltd. (supra), is not applicable in the facts of the case as evident from Para No.11 of the very same decision (in the case of Wipro Ltd.). Therefore, the Ld.CIT(A) misdirected himself applying the case law in the case of Wipro Ltd. (supra) in the facts of the case and claim of assessee; and the Ld.CIT(A) has not considered/apreciated the facts stated by the assessee that it had filed the RoI/Audit Report on 29.09.2022 and couldn’t file Form No.10CCB due to technical glitches and had expressed its desire to file the hard copy before the JAO which permission was not granted. These facts ought to have been considered by the Ld.CIT(A) while passing the First Appellate order disposing of the grounds of Appeal. Having not done so and for the aforesaid infirmity, we set aside the impugned order of the Ld.CIT(A) and restore the appeal back to the file of the Ld.CIT(A) for deciding the appeal afresh after considering the relevant facts stated supra. The assessee is directed to file the relevant documents/written submissions before the Ld.CIT(A) and the Ld.CIT(A) to decide the appeal in accordance to law.

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