Order u/s 119 issued by CBDT:

CBDT has issued an order u/s 119 vide file no. F. No. 225/117/ 2013/ ITA.II on 24^th of October, 2013. The operative portion of the same is reproduced below with highlights:

• In exercise of powers conferred under section 119 of the Income tax Act, 1961, the Central Board of direct Taxes, in continuation to order u/s 119 dated 26.09.2013 in F. No. 225/117/2013/ITA.II, hereby directs that in cases where the ‘due date’ of furnishing reports of audit and corresponding income-tax returns was 30^th September, 2013 and where the same are furnished electronically on or before 31^st October, 2013, such reports of audit and returns of income shall be deemed to have been furnished within the due date prescribed under section 139 of the Income-tax Act, 1961.

Applicable conditions are:

Due date should be 30.09.2013.

E-Tax audit report and E- ITR both must be required.

The E-ITR must be corresponding to E-TAR.

E-Tax audit report and E- ITR both must be filed on or before 31.10.2013.

Then it will be deemed that both have been filed within due date that is 30.09.2013.

Deemed timely filing:

This is an order or instruction to tax authorities and not a notification or circular for public. The order has not been issued in public interest for any given reasons of circumstances which require an order or where the Central Government consider it so expedient in public interest etc.

The order is just some relaxation of conditions laid down in section 139.

From reading of the order, it appears that in the given circumstances, if the e-tax audit report and corresponding e- income-tax return where due date was 30.09.13 are filed on or before 31.10.13, then such e-tax audit report and e-ITR will be deemed to have been filed within due date. Therefore there is a fiction created by the order.

The order must specifically say that the due date will be deemed 31.10.13 or that the due date has been extended in specified cases. However, in absence of such clear language, there is disputable situation.

On plain reading of the Circular, it cannot be said that the ‘due date’ has been extended to 31.10.2013. There is only relaxation that the report and return shall be deemed to have been filed within due date u/s 139 (1). Accordingly penalty for late filing will be relaxed.

Therefore, relief will be admissible only in respect of matters which concerns filing of return within due date. That is it will not be deemed that return has been filed late. The assessee will therefore, get benefit of extended period for payment of self assessment tax, no interest will be charged under section 234A if tax is paid on or before 31.10.13.

Benefit of S.43B and 80 :

In this case it is doubtful, whether benefit of carry forward of loss, and allowability of payments made against dues of various sums covered under section 43B will be allowed or not in respect of payment made after 30.09.13 and before 31.10.13.

This is because, benefit of payment is allowed in respect of payments made on or before due date for furnishing the return. The due date remains 30.09.13. As per order of CBDT, the tax authorities are directed to treat return filed on or before 31.10.13 as if filed within due date that is 30.09.13.

Therefore, a doubtful situation remains about applicability of date of 31.10.13 as due date under S.43B and section 80 read with section 139(3) which again requires reading with section 139(1).

Chance can be taken:

As per general understanding of tax payers and general tax practioners, the due date has been extended to 31.10.13. This view is a likely view and a view in favor of assessee must be adopted.

Accordingly, if return of loss has not been filed the same can be filed before 31.10.13 and carry forward of loss can be claimed.

Eligible payments under section 43B, made after 30.09.13 and before 31.10.13 can also be claimed, if it is beneficial to assessee.

If a return has been filed before 30.09.13, a revised return can also be filed claiming due date as 31.10.13 and claiming benefit of S.43B to claim payments made before 31.10.13.

Clarification is required to avoid disputes and litigation:

It is desirable that the CBDT should clarify that the above order amount to and in reality extend the ‘dude date’ for filing of return of income / loss where e-tax audit report and e- ITR was required to be filed before 30.09.13. And therefore, this order is really meant to extend the due date u/s 139(1) for all purposes.

Deemed filing of electronic tax audit reports and corresponding returns allows relief from late filing consequences if submitted within the extended electronic window. CBDT directed that where electronic tax audit reports and corresponding electronic income tax returns, originally due on the specified September date, are filed electronically on or before the October cut off, those filings shall be deemed to have been furnished within the due date under section 139(1), subject to conditions; this creates administrative relief from late filing penalties but leaves open doubts about applicability of timing dependent benefits such as deductions tied to the statutory due date and carry forward of losses.