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TMI Blog2024 (9) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any provision for exercising the option in Column (e) as per the Circular No. 19/2023, the petitioner cannot be deprived of lower rate of tax and the delay in filing Form 10-IC ought to have been condoned by respondent No. 2 so as to fulfill the condition prescribed in sub-section (5) of section 115BAA of the Act read with section 21AE of the Rules providing for procedure for filing Form 10-IC. The impugned order passed u/s 119 (3) (b) of the Act and intimation under section 143 (1) of the Act dated 13.11.2022 are hereby quashed and set aside and the mater is remanded back to the respondent No. 2 to pass appropriate order condoning delay in filing Form 10-IC by the petitioner for exercising the option of lower rate of tax under section 115BAA as per the return of income filed by the petitioner in Form of Return of Income i.e. ITR-6 so as to enable the AO or the Central Processing Center (CPC) to re-process the Return of Income filed by the petitioner applying provision of section 115BAA of the Act for lower rate of tax at 22% instead of regular rate of tax applicable to the domestic company. Such exercise shall be completed within twelve weeks from the date of receipt of copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Rules. 8. Due to non-filing of the Form 10-IC, the Return of Income of the petitioner for Assessment Year 2021-22 was processed by the respondent under section 143 (1) of the Act without giving the benefit of lower rate of tax of 22% and tax liability under section 115BAA was ascertained at Rs. 74,43,791/- and the petitioner was liable to pay additional amount of Rs. 20,48,040/- as per the intimation dated 13.11.2022 issued under section 143 (1) of the Act. 9. The petitioner, after failing to upload Form 10-IC electronically at multiple times on e-portal of the Income Tax Department, made an application on 23.01.2023 under section 119 (2) (b) of the Act before respondent No. 2-Chief Commissioner of Income Tax to condone delay in filing Form 10-IC and to permit the petitioner to file the same electronically. It was also submitted that the extreme financial hardship would be caused to the petitioner, if an additional amount of Rs. 20,48,040/- is to be paid due to technical mistake of not electronically filing Form 10-IC as the substantive provisions of the Act have been complied with by the petitioner and therefore, the petitioner was eligible to claim reduced lower rate of taxa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders dated 13.10.2023 and 22.02.2024. 16. Learned advocate Ms. Shrunjal Shah for the petitioner submitted that the petitioner has opted for option in the statement of income filed along with return of income and has computed the tax payable as per the provision of section 115BAA of the Act. 17. Learned advocate for the petitioner invited the attention of the Court to Column(e) in return of income in Form ITR-6 providing for option for taxation under section 115BAA of the Act applicable to domestic company at page 45 of the Paper Book to point out that no box for exercising option is provided in the said Form. It was therefore, submitted that as per Circular No. 19/2023, when the petitioner has computed tax payable in the statement of income as per the provision of section 115BAA of the Act, it cannot be said that the petitioner has not exercised option for lower rate of tax. It was also pointed out that the petitioner has not claimed any deduction as per the provision of section 115BAA of the Act which clearly shows that the petitioner is eligible for lower rate of tax and delay ought to have been condoned as per the CBDT Circular No. 19/2023 as all the conditions are fulfi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conditions contained in sub-section (2) are satisfied: Provided that where the person fails to satisfy the conditions contained in sub-section (2) in any previous year, the option shall become invalid in respect of the assessment year relevant to that previous year and subsequent assessment years and other provisions of the Act shall apply, as if the option had not been exercised for the assessment year relevant to that previous year and subsequent assessment years. (2) For the purposes of sub-section (1), the total income of the company shall be computed, (i) without any deduction under the provisions of section 10AA or clause (iia) of sub-section (1) of section 32 or section 32AD or section 33AB or section 33ABA or sub-clause (ii) or sub-clause (iia) or sub-clause (iii) of sub-section (1) or sub-section (2AA) or sub-section (2AB) of section 35 or section 35AD or section 35CCC or section 35CCD or under any provisions of Chapter VI-A under the heading C. -Deductions in respect of certain incomes other than the provisions of section 80JJAA; (ii) without set off of any loss carried forward or depreciation from any earlier assessment year, if such loss or depreciation is attributabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (2) of said section, such person may exercise option under this section: Provided further that once the option has been exercised for any previous year, it cannot be subsequently withdrawn for the same or any other previous year. 21. The reason for rejecting the application to condone delay on the ground that the petitioner has not exercised any option in the return of income in Form 10-IC could not have been the basis for rejection as on perusal of the Form 10-IC at page 45 of the paper book, Column (e) providing for option to be exercised by the assessee does not give any box for the option to be exercised by the assessee. It is evident that similar boxes are provided for other columns and assessee has exercised the option by ticking such boxes. It appears that Form of return of income ITR-6 is faulty in absence of any box provided for exercising option by the assessee for taxation under section 115BAA of the Act. 22. The impugned order passed by the respondent No. 2 in the review application filed by the petitioner in view of the Circular No. 19/2023 issued by the CBDT in Form 10-IC as per Rule 21AE of the Rules for Assessment Year 2021-22, on fulfilling following conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, authorise [ any income-tax authority, not being a Commissioner (Appeals)] to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law. 11. At this stage Mr. Dave the learned Counsel appearing for the writ-applicant submitted that the intimation under Section 143 (1) has already been issued to his client fixing the liability. In such circumstances, the next step in the process would be the recovery of the said amount. He would submit that but for the omission on the part of the writ-applicant in filing the Form 10 IC electronically, the liability would not have been as determined as reflected in the intimation under Section 143 (1) of the Act. In this regard we may only observe that if any steps are taken by the A.O towards recovery it is always open for the writ-applicant to file an application with a request to the AO to keep the demand in abeyance aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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