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Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: Shri Rajesh Kumar & Shri Sonjoy Sarma
order
: April 22, 2025 ORDER
Per Sonjoy Sarma, Judicial Member:
The present appeal has been preferred by the assessee against the order dated 10.10.2024 of the Commissioner of Income Tax, Appeal ADDL/JCIT(A)-1, Lucknow [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’).
Brief facts of the case are that the assessee filed its return of income for the assessment year 2022-23 on 06.01.2023 by declaring a total income of Rs.1,00,37,810/-. The return was processed u/s 143(1) of the Act on 21.07.2023 creating a demand of Rs.8,47,620/-.
Aggrieved by the order of the Assessing Officer, the assessee filed an appeal before the ld. CIT(A). Subsequently, the appeal was transferred to the Addl/JCIT(Appeals)-1, Lucknow in accordance with section 246 of the Act as per the e-Appeals Scheme, 2023, notified by the Central Board of Direct taxes. After considering the submissions made by the assessee, the ld. CIT(A) dismissed the appeal in the following manner:
Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd “6. Decision: 7.1 The statement of facts, grounds of appeal
, the order appealed against, and the submissions of the appellant have been thoroughly examined. 7.2 Ground No. 1 of the appellant pertains to the adjustment made by the AO without prior intimation to the appellant, which the appellant argues is not in accordance with the law. 7.3 In this regard, it is noted that the AO did not make any adjustments under section 143(1)(a) based on the income filed by the appellant. The returned income has been accepted by the AO. Therefore, the proviso to section 143(1)(a) is not applicable in this case. 7.4 The AO while processing the return computed the tax on the returned income as per the tax regime applicable in the case of the appellant. According to section 143(1)(b), the AO can compute the tax liability in accordance with the provisions of the Act, and no prior intimation is required to be provided to the appellant. Therefore, Ground No. 1 of the appeal is dismissed. 8.1 Ground No. 2 of the appeal concerns the AO's failure to allow the benefit of the new tax regime while processing the return under section 143(1) of the Act. The appellant has submitted that it filed its ITR for AY 2021-22, opting to pay tax as per the provisions of section 115BAA, and that Form 10-IC was filed on 31.03.2022. The delay in filing Form 10-IC for AY 2021-22 has been condoned by the CBDT in its recent Circular No. 19/2023 (F.No.173/32/2022-ITA-1) dated 23.10.2023. The appellant has also cited the judgment of the ITAT Mumbai in the case of Konti Infrapower & Multiventures Pvt. Ltd. vs. ITO 6(1)(2), Mumbai (ITA No. 3172/Mum/2023) dated 03,01.2024, wherein the matter was set aside to the CIT(A) on the basis that the appellant fulfilled all conditions outlined in Circular No. 19/2023 regarding the condonation of the delay in filing Form 10-IC. 8.2 The appellant further argues that the proviso to section 115BAA clearly states that once the assessee has opted to pay tax under section 115BAA in any previous year, this option cannot be withdrawn in subsequent years. Consequently, the intimation order passed under section 143(1) is deemed invalid, and the demand should be deleted to allow the assessee the benefit of the new tax regime. 8.3 The appellant's contention has been considered. It is noted that the appeal concerning the ground related to the new tax regime for Assessment Year 2021-22 has been dismissed by the JCIT (Appeals)
1. Lucknow in an order dated 29.03.2024. The relevant portion of this order is reproduced below:
Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd 7.2 It is essential to note that the appellant was not permitted to benefit from the new tax regime in the assessment year 2021-22. Consequently, the appellant’s claim of having opted for and being eligible for the new regime in A.Y 2021-22 – and, by extension, in A.Y 2022-23- is without merit and is therefore dismissed. Ground No.2 of the appeal is dismissed.
Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd In conclusion, the appeal filed by the appellant is dismissed.” 8.
4. Dissatisfied with the above order, the assessee is in appeal before this Tribunal. At the time of hearing, the ld. AR stated that the ld. CIT(A) dismissed the appeal holding that the assessee was not eligible to opt for new tax regime for assessment year 2022-23 as it was not permitted some benefit for the previous year i.e. assessment year 2021-22 and the ld. CIT(A) observed that the claim for the assessment year 2022-23 was not maintainable in the light of the denial in earlier years. However, the ld. AR brought to our notice that in respect of the assessment year 2021- 22, the Tribunal had already restored the matter back to the file of the ld. CIT(A) to verify the claim of the assessee regarding the filing of Form 10IC and other relevant details in order to claim the benefit under the new tax regime. In this connection, the Tribunal vide its order dated 21.08.2024 in directed the ld. CIT(A) to re- examine the matter after affording due opportunity to the assessee. The relevant part of the order of the Tribunal is as under:
“2.2. We further find that the appellant's case has been assessed by the ld. CIT(A) and the chart has been prepared which is as under: Condition mentioned in the Circular Appellant's case The return of income for AY 2021-22 Not satisfied; the appellant filed filed on or before the due date specified the return on 31.03.2022, after under section 139(1) of the Act the due date of 15.03.2022(extended date). The assessee company has opted for Satisfied; the appellant has taxation u/s 115BAA of the Act in (e) chosen Section 115BAA in the of "Filing Status" in "Part A-GEN" of the return. Form of Return of Income ITR-6 Form 10-IC filed electronically on or Satisfied; Form 10IC was before 31-01-2024 or 3 months from electronically filed on the end of the month in which this 31.03.2022. Circular is issued, whichever is later 2.3. On perusal of the above chart, there is no denying to the fact that Form- 10IC as per the extended date of the CBDT, was filed in time but Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd since return was filed after the due date, ld. CIT(A) did not consider the case of the assessee and rejected his claim. The submission of ld. Counsel for the assessee is that due to the outbreak of COVID, time has been extended by the Board for filing Form-10IC and other things. According to us, extended period has been made till 28.02.2022 and all the persons shall have the limitation of 90 days from 01.03.2022.
3. Keeping in view the above facts and the facts as stated above, there is no denying to this fact that the claim of the appellant has only been denied that he filed his return after due date i.e. approximately a period of 15 days. Keeping in view the factual position of the appellant as well as the facts stated above and the judgment pronounced as cited by the assessee, we are of this view that the case is sent back to the file of ld. CIT(A) with this direction to consider the case of the appellant liberally with regard to filing of the return after due date. The assessee is directed to file condonation petition with regard to the delay in filing of the return before the ld. CIT(A) and the ld. CIT(A) is directed to consider the application of the assessee keeping in view several catena of decisions with regard to the condonation of the delay and thereafter, pass a fresh order.
In the result, the appeal filed by the assessee is allowed for statistical purposes.”
On the other hand, the ld. DR relied on the orders of the authorities below.
After hearing rival contentions and perusing the materials available on record, we find that since the Tribunal had already restored the issue for the assessment year 2021-22 in the case of the same assessee vide order dated 21.08.2024 in therefore, the issue for the current assessment year i.e. 2022-23 is also connected and linked to the outcome of the earlier year. We, therefore, feel it necessary to set aside the issue to the file of the ld. CIT(A) with a direction to apply the principle of the judicial consistency. To avoid the multiplicity of proceedings regarding the same issue, we restore the matter to the file of the ld. CIT(A) for fresh adjudication after giving reasonable opportunity of being heard to the assessee and after verifying whether the assessee is eligible to claim the benefit u/s 115BAA of the Act.
Assessment Year: 2022-23 M/s Elcon Estate Pvt. Ltd 7. In the result, the appeal of the assessee is allowed for statistical purposes. Kolkata, the 22nd April, 2025.