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Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Rajesh Kumar & Shri Sonjoy Sarma]
आयकर अपील�य अ�धकरण, कोलकाता पीठ “ए’’, कोलकाता IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH: KOLKATA �ी राजेश कुमार, लेखा सद�य एवं �ी संजय शमा� �या�यक सद�य के सम� [Before Shri Rajesh Kumar, Accountant Member & Shri Sonjoy Sarma, Judicial Member] I.T.A. No. 1074/Kol/2023 Assessment Year: 2020-21 Life Care Medical Complex Pvt. Vs. CPC, Bengaluru Ltd. (PAN: AAACL 5538 P)
Appellant / (अपीलाथ�) Respondent / ( !यथ�)
Date of Hearing / सुनवाई 14.12.2023 क$ �त&थ Date of Pronouncement/ 05.01.2024 आदेश उ)घोषणा क$ �त&थ For the Appellant/ Shri K. K. Laha, A.R �नधा�/रती क$ ओर से For the Respondent/ Shri B. K. Singh, JCIT(Sr. D.R) राज�व क$ ओर से
ORDER / आदेश Per Rajesh Kumar, AM:
This is the appeal preferred by the assessee is against the order of the Ld. Commissioner of Income Tax (Appeals)-NFAC, Delhi (hereinafter referred to as the Ld. CIT(A)”] dated 11.08.2023 for the AY 2020-23.
The only issue raised by the assessee is against the application of rate of 30% by the AO instead of applicable rate of 22% u/s 115BAA and its wrong upholding by the Ld. CIT(A).
Facts in brief are that by filing return of income the assessee wrongly and inadvertently marked the section 115BAA of the Act while filing the return of income thereby resulting into the income being taxed on higher rate of income tax i.e. of 30%. The turnover of the assessee during the year was less than 20 crores and
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even the assessee has filed Form 3CA and 3CD, audited accounts, balance sheet for impugned the year ended on 31.03.2020 along with profit and loss account before CPC, Bengaluru which was totally overlooked while processing the return of income. The assessee move a rectification application which was disposed off and dismissed by CPC vide order dated 20.07.2022.
In the appellate proceedings, the Ld. CIT(A) also dismissed the appeal of the assessee by observing and holding as under:
“5.15. It is pertinent to note that first and foremost, the appellant never raised this claim in the return of income as seen above and hence on this count, there can be no ground to hold that there is a mistake apparent from record in the intimation issued u/s. 143(1) by CPC, which could be brought under the scope and ambit of Section 154 of the Act. 5.16. Further, in the absence of any such claim in the return, the attempt of the appellant to raise this during the course of appeal proceedings by way of Additional Grounds also cannot be admitted since it is not arising from facts on record, but clearly a case of a new unsubstantiated claim which requires a long drawn process of investigation and verification of facts which are outside the records before the AO and CIT(A). Therefore, the Additional Grounds sought to be raised by the appellant on an unsubstantiated claim which was never made in the return and not even a subject of original intimation u/s.143(1) or impugned rectification order u/s.154 under challenge, cannot be admitted under Section 250(5) of the Act. 5.17. It is a trite law as laid down by Hon’ble Supreme Court, in the case of Chandra Kishore Jha v. Mahavir Prasad [1999] 8 SCC 266, that “if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner”. This proposition has been earlier laid down by Hon'ble Apex Court in the case of State of Uttar Pradesh v. Singhara Singh AIR 1964 SC 358. 5.18. It may be further pertinent to quote the Hon’ble Bombay High Court in the case of Commissioner of Income-tax v. Shivanand Electronics 209 ITR 63 toemphasise the point as follows: “When the Legislature casts a duty on the assessee claiming certainbenefit, to comply with requirements which are associated with such benefit, the assessee cannot get the benefit without doing his part of the duty. He cannot be allowed to say that it was for the ITO to ask him to do so. If the assessee does not do his part of the statutory duty, the ITO may proceed to decide the allowability or otherwise of the relief oh the basis of the facts and material available before him. ” 5.19. In view thereof, the Additional Grounds raised seeking to be taxed under concessional rate of 25% are not admitted and dismissed in limine. 5.20. For the detailed reasons as stated above, there is no mistake apparent from records in the intimation issued u/s. 143(1) of the Act by CPC and therefore, the rejection of appellant’s petition u/s. 154 seeking rectification of the intimation is found to be correct on fact and in accordance with law. Therefore, the Original Grounds also stand dismissed.”
3 I.T.A. No. 1074/Kol/2023 Assessment Year: 2020-21 Life Care Medical Complex Pvt. Ltd. 5. After hearing the rival contentions and perusing the material on record, undisputedly this is a mistake on the part of the assessee which has occurred by selection/mentioning of wrong section i.e. 115BA instead of 115BAA of the Act. We note that the turnover of the assessee during the year is less than 20 crores and the assessee has also made without prejudice submission that since the turnover which is not above 400 crore, therefore the rate of 25% may be considered. Having considered the facts and circumstances of the case, we note that this is inadvertent mistake on the part of the assessee and the assessee cannot be penalized for the same. In digital era such type of mistakes are not ruled out and therefore it can reasonable be believed that the assessee would opt for a scheme which is most beneficial for him and why the assessee would pay higher rate of tax. In our opinion the issue deserved to be restored to the AO since the facts qua the above case are required to be verified and examined. Therefore we restore the case to the file of AO. Needless to say that the assessee is to be given one more opportunity of hearing and scheme which is most beneficial to the assessee is to be applied while computing the tax on the income of the assessee. Accordingly we restore the issue back to the file of the AO for fresh adjudication.
In the result, the appeal of the assessee is partly allowed for statistical purposes.
Order is pronounced in the open court on 5th January, 2024
Sd/- Sd/-
(Sonjoy Sarma /संजय शमा�) (Rajesh Kumar/राजेश कुमार) Judicial Member/�या�यक सद�य Accountant Member/लेखा सद�य Dated: 5th January, 2024 SM, Sr. PS
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Copy of the order forwarded to:
Appellant- Life Care Medical Complex Pvt. Ltd., 1/2A, Hazra Road, Kolkata- 700026 2. Respondent – CPC, Bengaluru 3. Ld. CIT(A)-NFAC, Delhi 4. Ld. Pr. CIT- , Kolkata 5. DR, Kolkata Benches, Kolkata (sent through e-mail)