9911796707
TMI Blog2024 (11) TMI 1434X X X X Extracts X X X X X X X X Extracts X X X X ..... led to claim deductions in accordance with the Act. However, an option is provided under Section 115BAA of the Act, in terms whereof, an assessee may exercise an option for taxation under Section 115BAA of the Act. The assessee exercising such option, would be liable to tax @ 22% instead of 30%. However, an assessee on exercise of option would be subject to restrictions on claim of deductions /set off in terms of Sub Section (2) to Section 115BAA of the Act. 3. The petitioner had opted to discharge taxes at 22% under Section 115BAA of the Act. In view of the exercise of such option, the petitioner did not claim set off or deductions in terms of Sub Section (2) to Section 115BAA of the Act. It is stated that any domestic company claiming concessional rate of taxation under Section 115BAA of the Act, is required to file a 'Form 10-IC' by logging into the e-filing portal on or before the due date specified under sub section (1) to Section 139 for furnishing of return of income for previous year in terms of sub-section (5) to Section 115BAA of the Act. However, the petitioner did not file Form 10-IC within time stipulated under Section 115BAA of the Act. Resultantly the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proposal was in view of dis-allowance of the option under Section 115BAA of the Act, for non-filing of Form 10-IC. 3.4. Thereafter, the petitioner filed a rectification petition dated 07.01.2022, wherein again the petitioner had inter alia indicated that he had opted for income tax at 22% under Section 115BAA of the Act, which is extracted below: "The Assessess is a private limited company and he had opted for Income tax @ 22% u/s 115BAA" 4. The rectification request was disposed of vide its proceedings dated 11.07.2022. It is submitted that the said rectification was not made available/served on the petitioner, though stated to be uploaded in the portal. 5. The option under Section 115BAA exercised by the petitioner was not accepted on the premise that the exercise of option was not supported by Form 10-IC. The petitioner was informed by the Assessing Officer vide order dated 29.11.2023 that the tax ought to be discharged at 30% instead of 22% under Section 115BAA of the Act. Thereafter, the petitioner filed a series of grievance petition commencing with 15.09.2022, followed by reminders dated 30.11.2022 and 10.01.2023. The above grievance petitions were also rejected. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rns/forms have to be complied and respected, unless compelling and good reasons are shown and established for grant of condonation. It is the duty of the applicant to explain the delay with cogent evidences. Therefore, the limitation of time limit is one of the cornerstones of proceedings under the Income Tax Act, 1961. Hence, condonation of delay is allowable in limited cases of genuine hardship only. The applicant wants to claim benefit of concessional tax rate without having any regard to the statutory timelines laid down in this regard. 9. In view of the facts and circumstances stated above, it is clear and evident that the applicant has not put forward any reasonable cause beyond its control which prevented it from filing of Form 10-1C for A.Y 2020-21. The applicant has no valid reasons to justify consideration of condoning the delay. In view of the above discussion and careful consideration of the matter, the applicant's petition/application dated 24.01.2023 seeking condonation of delay under section 119(2)(b) of the Act in filing Form 10-IC for A.Y. 2020-21 is hereby rejected. 10. This issues with the approval of Member (IT&R), Central Board of Direct Taxes." 8. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer is shown / found to exist. Lord Blackburn observed in Julius v. Bishop of Oxford, reported in 1880 5 AC 214 In other words, if the circumstances set out under Section 119(2)(b) of the Act exist, a duty is cast on the Assessing Officer to exercise its power under Section 119(2)(b) of the Act. It is trite law that vesting of power in an authority results in imposition of duties on that authority to exercise that power in a manner which would advance the purpose for granting/vesting of such power. In other words, this Court is of the view that the power under Section 119(2)(b) though seemingly an enabling provision, conferring discretionary power, such power is coupled with duty. I say so, for it is trite law that when a statute invests a public officer with authority to do an act in a specified set of circumstances, it is imperative upon him to exercise his authority in a manner appropriate to the case when a party interested and having a right to apply moves in that behalf and circumstances for exercise of authority are shown to exist. Even if the words used in the statute are prima facie enabling, the Courts will readily infer a duty to exercise power which is invested in aid o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise only if there is a delay and the enquiry ought to be whether that delay if let un-condoned would result in "genuine hardship" and therefore it is "desirable" and "expedient" to admit the claim in this case, option to discharge taxes under Section 115BAA of the Act. 15. In the present case, I also find on the facts that the petitioner had acted bonafide in claiming the option of discharging tax under Section 115BAA of the Act, inasmuch as while filing the return, the petitioner made it clear that option to pay tax under Section 115BAA is exercised. Importantly, tax has also been remitted/discharged at 22% in accordance with provisions of Section 115BAA. Secondly, there was a proceeding under Section 143(1) of the Act, wherein again there was no express indication that the taxes were sought to be levied at 30% rejecting the petitioner's request at 22%, only on the basis that Form 10-IC was not filed in support of its option to discharge tax under section 115BAA of the Act. Importantly, due to Covid pandemic, the timeline for filing the Form 10-IC was extended until 30.06.2022. Now the following events viz., (a) filing of returns indicating option to discharge taxes under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that the Respondent Authority/Board has completely mis-directed itself in not-examining if the failure to consider the claim of option to discharge tax under Section 115BAA on the ground of failure on the fact of the petitioner to file Form 10-IC within the period stipulated under Section 115BAA would cause "genuine hardship" to the petitioner/assessee and thus it is desirable as expedient to permit the petitioner to file Form 10-IC in support of its option under Section 115BAA and deal with the same on merit. The facts narrated supra leaves no room for doubt that the rejection of the petition under Section 119(2)(b) to permit the petitioner to file Form 10-IC in support of its exercise of option under Section 115BAA of the Act would cause genuine hardship and it is desirable and expedient to permit the petitioner to file Form 10-IC in support of its claim / option under Section 115BAA of the Act and deal with such claim on merits in accordance with law. 18. In view thereof, the impugned order is set-aside, the respondent shall keep the portal open to enable the petitioner to upload the Form 10-IC and the petitioner shall file the Form 10-IC within a period of four wee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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