MAHALAXMI ASPHALT PRIVATE LIMITED,AHMEDABAD vs. ITO, WARD-2(1)(1), AHMEDABAD
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Income Tax Appellate Tribunal, AHMEDABAD “SMC” BENCH, AHMEDABAD
Before: Ms. SUCHITRA KAMBLE & SHRI NARENDRA PRASAD SINHA
PER SUCHITRA KAMBLE, JUDICIAL MEMBER:
This appeal is filed by the assessee against order dated 30.04.2024 passed by the Addl/JCIT(A)-3, Delhi for the Assessment Year 2020-21.
The assessee has raised the following grounds of appeal :-
“1. Intimation under Section 143(1) of the Act received from CPC, Bengaluru is bad in law and required to be rectified by giving appropriate direction. 2. Ld. JCIT(A) erred in law and on facts in confirming calculating tax at normal rate instead of rate specified in Section 115BAA of the Act. 3. Ld. JCIT(A) ought to have considered fact that non-filing of form 10IC is procedural lapse which does not lead to non-application of special provision.
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Appellant prays that the required form 10IC has been physically filed and accordingly delay in filing the same shall be condoned by observing principle of natural justice. 5. Charging of interest under Section 234B and 234C is unjustifiable.” 3. The assessee is a Company and filed the return of income on 29.12.2020 thereby declaring total income of Rs.25,89,450/-. The assessee opted for special rate of taxation under Section 115BAA of the Income Tax Act, 1961 for the Assessment Year 2020-21. The assessee also selected taxation regime under Section 115BAA in the return of income as well as in Tax Audit Report in Form 3CD. While processing the return by CPC, Bengaluru, has computed tax at regular applicable rate instead on concessional rate and raised tax demand of Rs.1,97,000/- for the reason stating therein that non-filing of Form 10IE as per Rule 21AE of the Income Tax Rules, 1962. Intimation under Section 143(1) of the Act dated 14.12.2022 was passed.
Being aggrieved by the Intimation Order under Section 143(1) of the Act, the assessee filed appeal before the CIT(A). The CIT(A) has rejected the appeal of the assessee.
The Ld. AR submitted that there is no dispute that the assessee is a domestic company engaged in the business of Textile and eligible to avail the benefit to be taxed under Section 115BAA of the Act. The only objection of the Lower Authorities is that the assessee has not filed the Form 10IC electronically before the due date for filing the return of income under Section 139(1) of the Act. The Ld. AR submitted that Form 10IC could not be uploaded on ITBA Portal due to technical error and it was the first year of availing such benefit. The assessee furnished the said Form 10IC on 29.01.2022 at the time of appellate proceedings before the CIT(A). The only question is whether non-filing of Form 10IC on ITBA Portal is fatal to the assessee or not in availing the benefit of Section 115BAA of the Act. The Ld. AR relied upon the jurisdictional High Caourt’s decision in case of Gujarat Paguthan Energy Corporation (P) Limited vs. DCIT (SCA No.13825 of 2009 dated 26.02.2014). The jurisdictional High Court while considering the eligibility of deduction under Section 80IA of the Act wherein the assessee is required to furnish the Audit Report before due date of filing the return of income, and such Audit Report was filed during the assessment proceedings, held that the assessee is eligible for deduction under Section 80IA of the
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Act, The Ld. AR further relied upon the decision of Hon’ble Delhi High Court in case of CIT vs. Web Commerce (India) Pvt. Ltd., 318 ITR 135. The Ld. AR further relied upon the following decisions :-
1) KGY Glass Industries (P) Limited (Tax Appeal No.722 of 2023) (Guj.) 2) Aurangabad Electricals Pvt. Ltd. (Supreme Caourt) 2010 SCC Online SC 1277. 3) Medicaps Limited, 323 ITR 554 (Madhya Pradesh) 4) Zenith Processing Mills, 219 ITR 721 (Guj) 5) Web Commerce India (P) Limited, 318 ITR 135 (Del) 6) CIT vs. Contimeters Electricals (P) Limited (IT Appeal No.1366 of 2008 decided on 02.12.2008) 7) Ramji Mandir Religious and Charitable Trust, 205 ITD 150 (Ahd) 8) Surya Merchants Limited, 387 ITR 105 (All.) 9) Niteshkumar J. Shah (ITA No.430/Ahd/2022)
The Ld. DR submitted that the decisions relied by the assessee are distinguishable on facts as in the present case the assessee has filed the Form 10IC not during the assessment proceedings but at the time of appellate proceedings. Thus, there is exorbitant delay and the same cannot be condoned for granting the calculation of tax rate as per Section 115BAA of the Act. The Ld. DR relied upon the Intimation Order as well as the Order of the CIT(A).
We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the assessee has filed the return of income on 29.12.2020 thereby applying the tax rate as per Section 115BAA of the Act. The only fault of the assessee was that the assessee has not filed Form 10IC alongwith the said return. It is not disputed that for claiming tax rate under Section 115BAA of the Act, the Assessment Year 2020-21 is the very the first Assessment Year and due to the fault on the part of the System as mentioned by the assessee, it would have happened that the assessee has not filed the Form alongwith the return of income. It is not the case of the Revenue that the assessee is not entitled for the tax rate under Section 115BAA of the Act. If the assessee had filed Form 10IC within the prescribed time alongwith return of income, as held by various Hon’ble High Courts including the jurisdictional High Court, the CIT(A) has co-terminus power as that of the Assessing Officer. The CIT(A) is required to consider the report in Form 10IC and, therefore, it will be appropriate to take on record the Form 10IC and consider the same in
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consonance with the return of income filed by the assessee and after verifying the same, the Assessing Officer will adjudicate the issue whether the assessee is entitled for tax rate as per Section 115BAA of the Act in Assessment Year 2020-21 or not. Needless to say, the assessee be given opportunity of hearing by following the principals of natural justice.
In the result, appeal of the assessee is partly allowed for statistical purpose.
Order pronounced in the open Court on this 30th September, 2024.
Sd/- Sd/- (NARENDRA PRASAD SINHA) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 30th September, 2024 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad
