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Income Tax Appellate Tribunal, KOLKATA ‘B’ BENCH, KOLKATA
Before: DR. MANISH BORAD & PRADIP KUMAR CHOUBEY
order
: August 21st, 2024 ORDER
Per Pradip Kumar Choubey, Judicial Member:
The instant appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2021-22 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income- tax (Appeal)-1, Lucknow [in short ld. ‘CIT(A)’] dated 29.03.2024 arising out of the assessment order framed u/s 143(1of the Act dated 13.11.2022. 1.2. The brief facts of the case of the appellant are that the assessee filed its return of income for AY 2021-22 declaring total income of Rs. 1,36,47,260/-. It is alleged that during that year, three companies namely (i) Handsome Dealers Private Limited, (ii) Madhyam Infrastructure Private Limited & (iii)
I.T.A. No.: 769/KOL/2024 Assessment Year: 2021-22 M/s Elcon Estate Pvt. Ltd. Rahul Infra Project Private Limited amalgamated with the appellant company and all the income and expenses were incorporated in the books of accounts of the assessee company. It is further alleged that the return has been processed u/s 143(1) of the Act wherein the Assessing Officer (hereinafter referred to as ld. 'AO') did not allow the TDS, advanced tax and self- assessment credit of Rs. 50,911/-, Rs. 15 Lakh and Rs. 10,80,900/- paid by the amalgamated companies. Further, the AO has also not calculated the tax as per the new regime u/s 115BAA of the Act. The assessee filed an appeal before the ld. CIT(A) wherein ld. CIT(A) has partly allowed the appeal of the assessee thereby giving relief with respect to the disallowance of TDS, advanced tax and self-assessment tax but dismissed the appeal with respect to the claim of return, benefit under the new regime u/s 115BAA of the Act as the appellant’s case do not fall within the CBDT Circular for which the delay in filing Form-10IC has been condoned. Being aggrieved and dissatisfied with the impugned order, the present appeal has been preferred. 1.3. Ld. Counsel for the assessee challenges the impugned order thereby submitting that requirement of filing Form-10IC was only procedural and according to him ld. CIT(A) did not consider this fact that the return of income for the AY 2021-22 was filed on 31.03.2022 on account of COVID restrictions during that period. The learned counsel further submits that claim of the assessee u/s 115BAA has been denied by the ld. CIT(A) that Form-10IC which is to be filed on 31.01.22 has been filed on 31 -03-22 i.e. beyond the time. Ld. Counsel for the assessee further submits that vide Circular No. 6/2022 dated 23.10.2023 CBDT has extended the period for filing Form-10IC on the term and condition that the return of income has been filed on or before the due date. Ld. Counsel for the assessee submits that the claim of the assessee has been denied by the ld. CIT(A) by saying that appellant filed the return of income on 31.03.2022 after the due date of 15.03.2022 ignoring the grounds of the assessee that there was a Covid period and the Hon'ble Apex Court has suo moto condoned the delay. Ld. Counsel for the assessee further submits that ld. CIT(A) ought to have condoned the delay of the assessee keeping in Page 2 of 6 I.T.A. No.: 769/KOL/2024 Assessment Year: 2021-22 M/s Elcon Estate Pvt. Ltd. view of the pandemic situation in the nation. Ld. Counsel for the assessee cited decisions which are as follows: a) Fastner Commodeal Pvt. Ltd. vs. ADIT, order dated 07.03.2024. b) Aprameya Engineering Limited vs. ITO, order dated 11.06.2024. 1.4. Ld. Counsel for the assessee further contended that no prior information u/s 143(1)(a) of the Act was received by the assessee before making the adjustment by ld. CPC, hence any adjustment is also bad in law. 1.5. The ld. D/R supports the impugned order.
After hearing the submissions of the Counsels of the respective parties, we have perused the order and the facts of the case. The facts of the present case of the assessee are that he filed his return of income for the AY 2021-22 on 31.03.2022 claiming the TDS deduction, advanced tax and self- assessment tax along with the benefit of new tax regime u/s 115BAA of the Act. Section 115BAA of the Act was introduced for the purpose of granting benefit of reduced corporate tax rate for the domestic companies. In order to avail the benefit, such companies are required to exercise the option in prescribed manner on or before due date specified u/s 139(1) of the Act for furnishing the return of income. As per Rule 21AE of the Income Tax Rules, 1962, such option can be exercised by filing Form 10-IC. Sub-Section (5) of Section 115BAA of the Act, makes it mandatory to file this form on or before the due date of furnishing the return of income as specified u/s 139(1) of the Act. 2.1. In the present case, while we perused the order of ld. CIT(A), it appears to us that in appeal ld. CIT(A) has allowed the appeal of the assessee on the disallowance of TDS, advanced tax and self-assessment tax credit but denied the claim of the assessee with respect to the allowing the benefit of new tax regime u/s 115BAA of the Act. On perusal of the order of the ld. CIT(A), it appears to us that appellant filed its return of income for the relevant assessment year on 31.03.2022 and also filed Form-10IC on 31.03.2022. It is Page 3 of 6 I.T.A. No.: 769/KOL/2024 Assessment Year: 2021-22 M/s Elcon Estate Pvt. Ltd. mentioned in the order that the appellant’s return was initially due on October 31st of 2021, an extended deadline was of March 15, 2022. We further find that CBDT issued Circular No. 6/2022 dated 23.10.2023 and after considering the representation received by the Board stating with regard to Form-10IC the Board has held thus: “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, the Central Board of Direct Taxes, in exercise of the powers conferred under section 119(2)(b) of the Act, hereby directs that: The delay in filing of Form 10-IC as per Rule 21AE of the Rules for the previous year relevant to AY 2021-22 is condoned in cases where the following conditions are satisfied: (i) The return of income for AY 2020-21 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 (e) of "Filing Status" in "Part A-GEN" of the Form of Return of Income ITR-6 and (iii) Form 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.” 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 filed Not satisfied; the appellant filed the on or before the due date specified under return on 31.03.2022, after the due date section 139(1) of the Act of 15.03.2022(extended date). The assessee company has opted for Satisfied; the appellant has chosen taxation u/s 115BAA of the Act in (e) of Section 115BAA in the return. "Filing Status" in "Part A-GEN" of the Form of Return of Income ITR-6 Form 10-IC filed electronically on or Satisfied; Form 10IC was electronically before 31-01-2024 or 3 months from the filed on 31.03.2022. end of the month in which this 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 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
Page 4 of 6 I.T.A. No.: 769/KOL/2024 Assessment Year: 2021-22 M/s Elcon Estate Pvt. Ltd. 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.
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.