9911796707
TMI Blog2024 (12) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (5) of Section 10B and therefore, if the claim is withdrawn post the date of filing of return, the report of the Accountant filed under Section 10B (5) of the Act would become falsified and would stand to be nullified. However, the provisions of Section 115BAA of the Act are in a way granting relief to the assessee-Companies to enable them to pay the reduced rate of tax at rate of 22% on exercise of the option on the various conditions mentioned therein. Respondent No. 1 was required to consider the facts of the case by permitting the petitioner to file a fresh Form 10IC and condoning the delay in filing such Form by moulding the prayer made by the petitioner to treat the Form 10IC filed by the petitioner for Assessment Year 2021-2022 to be treated as that of for Assessment Year 2021. The provisions of Section 119 (2) (b) of the Act are meant for redressal of the grievance and hardships caused to the petitioner. The petition succeeds and accordingly allowed. The petitioner is permitted to obtain Form 10IC for Assessment Year 2021 in the facts of the case and after obtaining such Form, the petitioner shall make a fresh Application . X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 244A of Act on 29.03.2021. 5.5. However, the Central Processing Centre (for short 'the CPC') issued a Rectification Order under Section 154 of the Act by reprocessing the return of income as the Form 10IC was not filed by the petitioner along with the return of income by raising a demand of Rs. 1,21,46,360/-. 5.6. The petitioner therefore raised grievance on 08.11.2021 on the Portal, however, no effective resolution was provided and the grievance was closed by the CPC on 12.11.2021. The petitioner raised another grievance on 30.11.2021 which was also closed by the e-filing Department on the same date without providing any resolution. 5.7. It is the case of the petitioner that till the end of January, 2022, non-availability of the reference of the Rectification Order persisted and return for the Assessment Year 2021-2022 was due for filing and petitioner filed Form 10IC along with the return for Assessment Year 2021-2022 whereas, as per the provisions of the Act, the petitioner was required to opt for the option to avail the concessional rate of tax only once which would be available in all subsequent Assessment Years. The petitioner was accordingly required to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvantage of option of payment of reduced rate of tax as opted by the petitioner in the return of income. 6.2. It was further submitted that before issuance of the Circular No. 6 of 2022 dated 17th March, 2022, the petitioner had already exercised its option for opting the concessional tax regime for Assessment Year 2021-2022 by filing Form 10IC on 10th February, 2022 under the mistaken belief and bona-fide advice instead of filing Form 10IC for Assessment Year 2021 as per the said Circular. 6.3. It was therefore submitted that the respondent No. 1 ought to have considered the Form 10IC filed by the petitioner for Year 2021-2022 to be Form for the Assessment Year 2021. 6.4. Learned advocate Mr. Manish Shah in support of his submissions referred to and relied upon the decision of this Court in case of V.M. Procorn Private Limited Versus Assistant Director of Income Tax and Another in Special Civil Application No.9707 of 2024 rendered on 23rd August, 2024 wherein, in similar facts, when the assessee in the said case could not opt for an option in the return of income, was permitted to file Form 10IC so as to take the benefit of reduced rate of tax under Section 115BAA of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 has rightly relied upon the Circular No.9 of 2015 issued by the CBDT to hold that the petitioner has no case of genuine hardship. 8. Considering the submissions made by the learned Advocates for both the sides and on perusal of the facts and material available on record, it is revealed from the return of income filed by the petitioner in Form ITR-6 that the petitioner had adopted the option for taxation under Section 115BAA of the Act which is further fortified from the intimation issued under Section 143 of the Act, computation of income of the petitioner placed on record wherein also, the petitioner has computed the tax payable at the rate of 22% instead of 30% as well as the intimation issued by the CPC under Section 143 (1) of the Act accepting the return of income. 9. It appears that the CPC suo-moto passed an Order under Section 154 of the Act as the Form 10IC was not uploaded by the petitioner though the option was exercised for reduced rate of tax under Section 115BAA of the Act. 10. The relevant provisions of Section 115BAA of the Act reads as under : "115BAA(1): Notwithstanding anything contained in this Act but subject to the provisions of this Chapter, other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led with the Rectification Order passed by the CPC under Section 154 of the Act raising the demand by calculating the tax payable by the petitioner at 30% instead of reduced rate of tax at 22%. The petitioner in the meanwhile was ill-adviced to file Form 10IC for the next Assessment Year 2021-2022 at the time of filing of return and accordingly, the petitioner filed such Form on 10th February, 2022. Considering the confusion and technical issues, the CBDT has issued the Circular No. 6 of 2022 on 17th March, 2022 permitting the assessees to file Form 10IC for the Assessment Year 2021 meaning thereby, the filing of Form 10IC is only to confirm that the petitioner has exercised the option while filing the return of income under Section 139 (1) of the Act as prescribed in Rule 21AE of the Rules which was relaxed by the CBDT. The Circular No. 6 of 2022 reads as under : "Sub: Condonation of delay under section 119 (2) (b) of the Income-tax Act, 1961 in filing of Form 10IC for Assessment Year 2020-21-Reg. Section 115BAA of the Income-tax Act, 1961 (the Act) was inserted by the Taxation Laws (Amendment) Act, 2019 w.e.f. 01.04.2020. As per the Section, the income-tax payable in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner, however, could not file the Form electronically on or before 30th June, 2022 because the petitioner had already filed the Form 10IC for the Assessment Year 2021-2022 so as to see that the petitioner at least gets the benefit of the reduced rate of tax for the said Assessment Year. The petitioner, however, was entitled to file the Form as per the aforesaid Circular but the petitioner has not filed the Form 10IC for the Assessment Year 2021-2022. The petitioner therefore had no option but to make an application under Section 119 (2) (b) to treat the Form 10IC filed for Assessment Year 2021-2022 as if the same is filed for Assessment Year 2021 as per the aforesaid Circular. 14. It is true that the petitioner could not have made such a prayer of treating Form 10IC filed for Assessment Year 2021-2022 for Assessment Year 2021. The petitioner ought to have prayed for permission to file the Form 10IC for the year 2021 as per the Circular No. 6 of 2022 under Section 119 (2) (b) of the Act by treating the Form 10IC filed for subsequent year 2021-2022 as null and void as the petitioner had already opted for a reduced rate of tax for Assessment Year 2021 in the return of income which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid decision has no connection whatsoever remotely to the facts of the present case and therefore, in the facts of the present case, the Tribunal has rightly followed the decision of this Court in case of Sarvodaya Charitable Trust v. Income Tax Officer (Exemption) in Special Civil Application No. 6097 of 2020 decided on 09th December, 2020 as well as the decision in case of Social Security Scheme of GICEA (supra) to uphold the decision of the CIT (Appeals), wherein this Court has held that the approach of the authority in such type of cases should be equitable, balancing and judicious and respondent No.2 might be justified in denying the exemption under Section 11 of the Act being a technical in nature by rejecting such application. But, in the facts of the case, when the assessee has already uploaded the audit report in Form 10B as required under Section 10 (23) C read with Section 12A (1) (b) of the Act before the Assessing Officer prior to the original asessment order under Section 143 (3) passed on 06th April, 2021." 16. Learned advocate Mr. Manish Shah for the petitioner also invited the attention of the Court to paragraph No. 10 of the decision of the Hon'ble Apex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d condoning the delay in filing such Form by moulding the prayer made by the petitioner to treat the Form 10IC filed by the petitioner for Assessment Year 2021-2022 to be treated as that of for Assessment Year 2021. The provisions of Section 119 (2) (b) of the Act are meant for redressal of the grievance and hardships caused to the petitioner as held by the Hon'ble Madras High Court in case of R. Seshammal (Supra) as under : "This is hardly the manner in which the State is expected to deal with the citizens, who under anxiety to comply with all the requirements of the Act pay monies as advance tax to the State, even though the monies were not actually required to be paid by them and thereafter seek refund of the monies so paid by mistake after the proceedings under the Act are dropped by the authorities concerned. The State is not entitled to plead the hyper-technical plea of limitation in such a situation to avoid return of the amounts. Section 119 of the Act vests ample power in the Board to render justice in such a situation. The Board has acted arbitrarily in rejecting the petitioner's request for refund." 19. Considering the above facts as well as the settled legal posi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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