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TMI Blog2024 (8) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee was processed u/s 143(1) of the Act, the department was very much in possession of Form 10CCB while the intimation was issued. Since, it is decided that delay in filing of Form 10CCB in present case was occasioned due to technical issues on the portal of income tax department for which the assessee cannot be held liable, therefore, the case laws relied upon by the revenue qua implementation of exemption notifications is irrelevant. CBDT s Circular 9/2015 regarding delay in filing refund claim and claim for carry forward losses u/s 119(2)(b) is also of no help as the delay was caused because of malfunction in the income tax website. As prescribed form was filed only with a delay of 1 Hour 22 Minutes also much before the due date of filing of the return. we hold that the assessee has substantiated that the Form 10CCB was attempted to be filed within the stipulated time, however, due to the reasons beyond control of the assessee i.e., technical glitches on the web portal of the department, the Form could not be filed in time but was uploaded with a slight delay of 1 Hour 22 Minute. As the delay was not attributed or occurred due to any negligence or inaction on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of Form 10CCB, without considering the possibility that the case of the assessee might be covered by the provisions of section 119(2)(b) whereby the Addl. / JCIT(A) is not the prescribed authority for condonation of delay in terms of relevant CBDT Circular 9/2015 [F.NO.312/22/2015-OT], dated 9-6-2015? 5. Whether on the facts and on the circumstances of the case and in law, Ld. Addl. / JCIT(A) was justified in condoning delay in submission of Form 10CCB on the ground that the delay is 'slight' of 1 hour and 22 minutes, ignoring that there is no settled SOP / policy formulated by the Board clarifying up to what delay time may be condoned and that such ad hoc condonation brings complications and arbitrariness not only in implementation of public policy in general but also in implementation of specified timelines in particular? 6. Whether on the facts and on the circumstances of the case and in law, Ld. Addl. / JCIT(A) was justified in condoning delay in submission of Form 10CCB in violation of the principles laid down by apex court in Commissioner of Customs (Import), Mumbai v. Dilip Kumar company [2018] 95 taxman 327 (SC), especially that Exemption notification should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. 4.2 Short Credit of TDS: The CPC had not allowed TDS credit of Rs. 16,811/- while passing of intimation order u/s 143(1). In this context, the appellant had contended that the TDS credit for Rs. 16,811/- is available in Form 26AS and has also submitted the Form 26AS as evidence. The appellant's contention is verifiable from Form 26AS. It is therefore, hereby directed that assessing officer shall verify the Form 26AS for availability of TDS credit claimed by the appellant for Rs. 16,811/- and accordingly after the verification allow/disallow the TDS credit claimed by the appellant in conformity with the Form 26AS. Accordingly, this ground of appeal is partly allowed subject to verification for availability of TDS Credit. 4.3: Levy of interest u/s 234B/234C: Charging of interest u/s 234B/234C is consequential and is therefore decided accordingly. 4.4: As a result, the Appeal of the Appellant is therefore partly Allowed. 5. As the disallowance made through intimation u/s 143(1), in which the deduction u/s 80IA claimed by the assessee was denied on account of delay in filing of Form 10CCB, which was assailed in the appeal and has been allowed by the Ld. Addl./JCIT(A), N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on qua condonation delay in filing of Form 10CCB on the ground that the delay is 1 hour 22 Minutes was considered as slight delay, whereas there is no settled SOP/ Policy formulated by the Board or prescribed in the law, clarifying up to how much time, the delay involved may be condoned and that such an ad-hoc condonation brings complications and arbitrariness not only in implementation of public policy in general but also in implementation of specified timelines in particular. Ld. CIT-DR placed his reliance on the case of Commissioner of Customs (Import), Mumbai v. Dilip Kumar Company [2018] 95 taxmann.com 327 (SC), wherein Hon ble Apex Court has strictly accorded that exemption notification should be interpreted strictly ? 10. Based on aforesaid submissions, it was the prayer of Ld. CIT-DR that the power to condone the delay was not conferred upon the Ld. Addl./JCIT(A) in terms of CBDT, Circular 9/2015 dated 09.06.2015, therefore such action of Ld. Addl./JCIT(A) was without valid jurisdiction, thus, the action of Ld. Addl/JCIT(A) was illegal and liable to be set aside. For the sake of clarity, copy of CBDT Circular No. 9/2015 is furnished before us, the same is extracted as under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... monetary limits delegated to the Pr.CCsIT/CCsIT/Pr.CsIT/CsIT in case of such claims will be subject to Following conditions: i. At the time of considering the case under Section 119(2)(b), it shall be ensured that the income/loss declared and/or refund claimed is correct and genuine and also that the case is of genuine hardship on merits. ii. The Pr.CCIT/CCIT/Pr.CIT/CIT dealing with the case shall be empowered to direct the jurisdictional assessing officer to make necessary inquiries or scrutinize the case in accordance with the provisions of the Act to ascertain the correctness of the claim. 6. A belated application for supplementary claim of refund (claim of additional amount of refund after completion of assessment for the same year) can be admitted for condonation provided other conditions as referred above are fulfilled. The powers of acceptance/rejection within the monetary limits delegated to the Pr.CCsIT/CCsIT/Pr.CsJT/CsIT in case of returns claiming refund and supplementary claim of refund would be subject to the following further conditions: i. The income of the assessee is not assessable in the hands of any other person under any of the provisions of the Act. ii. No inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the return of income i.e. 7/11/2017. Therefore, it is apparent that as on the due date of filing of the return assessee did not file audit report in form number 10 CCB for claiming deduction u/s 8IB (11B), therefore we do not find any infirmity in denying deduction to the assessee. The provisions of rule 12 (2) of the income tax rules 1962 are also very clear in this regard. Assessee is also aware about the same because it is filed the audit report on 6/11/2017 but did not care to accept the same till 12 December 2017. Therefore, even without any intimation the assessee approved the form 10 CCB uploaded by the accountant on 6/11/2017 on 12th/12/2017. Therefore, it is not the correct explanation of the assessee that assessee was unaware about the procedure of filing of the audit report. According to us, after introduction of the electronic filing of the return of income as well as all other documents, there is no debate available that even if the audit report is filed before the assessment is made, same is acceptable and the deduction cannot be denied to the assessee. When selection of the cases for further scrutiny, processing of the return of income, claim of the refunds of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Assessee required to obtain Transfer Pricing audit report u/s 92E (in Form no. 3CEB) and therefore, due date of filing return was 30.11.2022 as per sec. 139(1) Explanation 2 (aa). 2. Transfer Pricing report u/s 92E in Form no. 3CEB obtained on 31.10.2022 and uploaded also on 31.10.2022 at 11.42 pm (PN 122 of PB), acknowledgement at PN 128 of PB. 3. MAT report in Form no. 29B also could be uploaded on 01.11.2022, acknowledgment at PN 120 of PB. 4. Tax audit report in Form no. 3CA uploaded on 31.10.2022, filing date at PN 132 of PB- 5. Return of income filed on 24.1 1.2022, acknowledgment at PN 126 of PB. Within the time allowed u/s 139(1) read with Explanation 2(aa). 6. Audit report u/s 801A(7) in Form no.10CCB. i) Due to technical glitch, report could not be uploaded on 31.10.2022 till 12 in midnight. ii) Attempt made to uploaded electronically on 01.1 1.2022 at 12.25 am, but failed, screen shot showing date time at PN 123 of PB. iii) Attempt made again on 01.1 1.2022 at 1.19 am, but page kept on loading but report could not be uploaded. Screen shot showing date time at PN 124 of PB. (iv) Finally report uploaded on 01.11.2022 at 01:22 am, screen shot showing date time at PN 125 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T vs Celerity Power LLP (2019) 174 ITD 433 (Mum.) During the course of assessment proceedings, assessee raised the claim of deduction u/s 80IA, which was disallowed by the AO observing that assessee failed to file audit report in Form no. 10CCB along with its return of income. The CIT(A) allowed the deduction. Vide para 22, it was held by the Tribunal that filing of an audit report is procedural and directory in nature and the same could also be validly filed by an assessee at the appellate stage. It noted that similar view has been laid down in the following cases also:- i) CIT vs Medicaps Ltd. (2010) 323 ITR 554 (para 22). ii) CIT vs Gujarat Oil Allied Industries (1993) 201 ITR 325 (Guj.) wherein the Tribunal had held that filing of audit report is procedural directory and the same can be filed at the appellate stage also. iii) CIT vs Jaideep Industries (1989) 180 ITR 81 (P H). 2. DCIT vs Manilal Dayalii co., ITA no. 62/RPR/2019 AO disallowed deduction u/s 80-1B for non-filing of Form IOCCB along with return of income. Audit report in Form IOCCB was filed during reassessment proceeding. Ld. CIT(A) held that the filing of an 'audit report' was merely in the nature of a pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of this court in CIT vs Ace Multitaxes System (P.) Ltd. (2009) 317 ITR 207 has taken a view that assessee is entitled to deduction u/s 80-IA even if the audit report is filed at the appellant stage. 7. Sanskriti KMV School vs Asst. CIT(E) (2021) 190 ITD 29 (Chd.Trib.) AO denied exemption u/s 10(23C)(vi) on the ground that Form 10BB was not filed along with return of income as prescribed in proviso of 10(23C)(vi) and was later filed during assessment proceeding. It was held by Hon'ble Tribunal that in the light of the facts and position of law as argued which stands unrebutted, exemption was allowable. 8. CIT vs Contimeters Electricals P. Ltd. (2009) 317 ITR 249 (Del.), The assessee did not file audit report in Form no. 10CCB for claiming deduction u/s 801A(7) along with the return of income. The Tribunal took the view that provisions of sec. 801A(7) with regard to filing of audit report along with the return were not mandatory and were merely directory. In coming to such conclusion, the Tribunal referred to the decision of Gujarat High Court in CIT vs Gujarat Oil Allied Industries. It was held vide para 5 that there are similar decisions rendered by other High Courts. Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed subsequently on 31.03.2016 declaring total income of ₹.196,14,10,368. The return was revised to give effect to merger of Mahavir Build Estate Limited and Galaxy Premises Private Limited with the Assessee company and to rectify certain clerical errors. Ld. Counsel for the assessee submitted that the Assessing Officer rejected revised return filed by the assessee on the ground that the original return was not filed within the due date prescribed under section 139(1) of the Act. However, Assessing Officer while making assessment, has considered the additional disallowances made by the Assessee in the revise return at ₹.4.05 crores and has rejected/ignored the additional deduction/expenses of ₹.8.17 crores claimed by the Assessee. Referring to Page No. 57 of the Paper book which is the copy of acknowledgment received from the Income-tax Department, Ld. Counsel for the assessee further submits that assessee could not upload the return of income till late on the night of 30.11.2014 i.e. the due date for filing return of income for the subject A.Y. 2014-15, and the return got uploaded at 00.02 AM on 01.12.2014 due to which the acknowledgement in the system of Tax Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was continuingly trying to upload the audit report which is evident from the various screenshots and evidence from the website of Income Tax furnished before us. It is also submitted that apart from Form 10CCB and Form 29B all the remaining compliances like filing of return u/s 139(1), Form 3CD, Form 3CEB are duly filed by the assessee within the due dates instructed under the statutes. Under such facts and circumstances, it was the prayer of ld. AR that the Form 10CCB filed by the assessee should be considered as it was filed validly within the stipulated time and the deduction u/s 80IA shall be allowed to the assessee. Ld. AR further submitted that Ld. Addl./JCIT(A) have rightly understood the issue, have appreciated that the technical glitches on income tax portal had actually occurred in those days and, therefore, certain extensions were also granted by the CBDT. Backed by aforesaid submissions, it was the prayer that Ld. Addl/JCIT(A) has rightly and judiciously decided the issue, therefore, the order of First Appellate Authority allowing the claim of assessee for deduction u/s 80IA deserves to be upheld. 21. We have considered the rival submissions, perused the mate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. CBDT [322 ITR 87], wherein it is categorically observed that: It is well settled that in matters of condonation in delay a highly pedantic approach should be eschewed, and a justice oriented approach should be adopted, and a party should not be made to suffer on account of technicalities. 22. Similar issue was decided by Hon ble Bombay High Court in the case of Cosme Matias Menezes (P) Ltd. v. CIT [379 ITR 31], wherein it is held that: 11. Taking note of the said observations and considering that the delay in the present case is only of one day, we find that the approach of the Respondents in refusing to condone the delay is a pedantic which, if allowed to stand, would result in great hardship to the Petitioners for no fault of the Petitioners. The Petitioners have also produced the hard copy to show that in fact such return in Form - 1 were filed on 31.03.2008 which was admittedly the last date for filing such returns. These factual aspects have not been disputed by the Respondents. Needless to say, we have not examined the merits of the claim of the Petitioners based on the returns filed by the Petitioners but only considered whether the delay in filing such returns deserves t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is appropriate to notice that under Section 119(2)(b) of the Income Tax Act, the Central Board Direct Taxes has been empowered to admit an application or claim for exemption, deduction, refund * any other relief under the Act, after the expiry of the period specified by or under the Act by making such an application or claim and deal with the same on merits in accordance with law. In other words, the statute has conferred discretion in the hands of the Board to admit of any claim which is made beyond the period specified for doing so and when once the discretion is conferred by a statute upon an authority, such a discretion is required to be exercised on sound lines. It is one of the important factors to be considered while dealing with an application seeking condonation of delay as to whether grave and irreparable injury or hardship will be caused to the person concerned and as to whether or not the interests of justice would be served better, in condoning the delay. In the instant case, there is no dispute or denial of the fact that the Return of Income filed by the Respondent/Assessee for the Assessment Year 2010-11, has been uploaded sometime past 00.00 hours on 15.10.2010. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with a slight delay of 1 Hour 22 Minute. As the delay was not attributed or occurred due to any negligence or inaction on the part of assessee, therefore, in the interest of justice also the assessee shall not be saddled with any penal action. As per judicial pronouncement of Hon ble Bombay High Court in the case of Bombay Mercantile Cooperative Bank Ltd. (supra), it is imperative on us to avoid pedantic approach in the case of condonation of delay, also we are supposed to adopt a justice-oriented approach, and wherever justifiable reasons for delay are demonstrated the party should not be made to suffer on account of technicalities. We, therefore, are of the considered view that the Ld. Addl/JCIT(A) had rightly adjudicated the issue in favor of the assessee, which in our opinion does not suffer with any infirmity to be interfered with, consequently we uphold the decision of the Ld. Addl/JCIT(A). Resultantly, the grounds of appeal raised by the revenue in the present appeal are rejected in terms of our aforesaid observations. 27. In view of aforesaid observations, the present appeal of the department being deprived of any substance and devoid of merits stands dismissed. Order pron ..... X X X X Extracts X X X X X X X X Extracts X X X X
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