TaxTMI 
TaxTMI 
TaxTMI 
2024 (12) TMI 254
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....ome Tax Act, 1961 (for short 'the Act') rejecting the application dated 17th March, 2023 filed by the petitioner to condone the delay in filing the Form 10-IC along with the return of income by considering the Form 10-IC filed within due date for Assessment Year 2021-2022. 4. Considering the controversy in narrow compass, the matter is heard finally with the consent of the learned Advocates of the parties. 5.1. The brief facts of the case are that the petitioner is a Public Limited Company and filed its return of income on 31.12.2020 declaring total income of Rs. 11,38,14,110/- for the Assessment Year 2020-2021. 5.2. The petitioner exercised the option under Section 115BAA of the Act while filing the return of income to pay the reduced rate of tax at 22% excluding the surcharge and education cess. 5.3. It is the case of the petitioner that while filing the return of income, ITR-6, the petitioner selected the 11th column appearing in the Form of return for opting the concessional tax as per the provisions of Section 115BAA of the Act and computed the tax payable accordingly as per the statement of computation of income. 5.4. It is the case of the petitioner that due to technica....
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...." 5.9. As the petitioner was fulfilling all the conditions except condition No.(iii) of paragraph No.3 of the Circular, as the petitioner prior to issuance of such Circular had already filed Form 10IC for Assessment Year 2021-2022 on 10th February, 2022 and as per the provisions of the Act, the petitioner can file Form 10IC only for one time as per Sub-section (5) of Section 115BAA of the Act, the petitioner could not take benefit of the said Circular. 5.10. The petitioner therefore preferred an Application under Section 119 (2) (b) of the Act before the respondent No. 1 with a request to consider the Form 10IC filed for the Assessment Year 2021-2022 on 14th March, 2023. 5.11. The respondent No. 1, however, by the impugned order dated 06.10.2023 passed under Section 119 (2) (b) of the Act rejected the Application filed by the petitioner and the delay was not condoned as the petitioner had never filed the Form 10IC in the prescribed manner as provided under Sub-section (5) of Section 115BAA of the Act and there is no genuine hardships on part of the petitioner in delay in filing the Form 10IC. 5.12. Being aggrieved, the petitioner has preferred this petition. 6.1. Learned advoc....
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....1. On the other hand, learned Senior Standing Counsel Mr. Karan Sanghani for the respondent-Authority submitted that admittedly the petitioner has not filed any Form 10IC as required under the provisions of Sub-section (5) of Section 115BAA of the Act in the prescribed manner and therefore, the petitioner has failed to comply with the twin conditions of filing Form 10IC along with the return of income under Section 139 (1) of the Act for the Assessment Year 2021. 7.2. In support of his submissions, reliance was placed on the decision of the Hon'ble Apex Court in case of Principal Commissioner of Income Tax versus Wipro Limited reported in [2022] 446 ITR Page 1 (SC) wherein, in the facts of the said case, the Hon'ble Apex Court did not permit the assessee to exercise the option as per provisions of Section 10B (8) of the Act at the time of filing of the revised return under Section 139 (5) of the Act. It was submitted that the language of the Section 10B (8) of the Act is pari materia in that of the Sub-section (5) of Section 115BAA of the Act. It was therefore submitted that the respondent No. 1 has rightly rejected the Application filed by the petitioner to consider the Form 10IC....
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....ned in this section shall apply unless the option is exercised by the person in the prescribed manner on or before the due date specified under sub-section (1) of section 139 for furnishing the returns of income for any previous year relevant to the assessment year commencing on or after the 1st day of April, 2020 and such option once exercised shall apply to subsequent assessment years: Provided that in case of a person, where the option exercised by it under section 115BAB has been rendered invalid due to violation of conditions contained in sub-clause (ii) or sub-clause (iii) of clause (a), or clause (b) of sub-section (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." 11. As per the provisions of Sub-section (5) of Section 115BAA of the Act, the option is required to be exercised in prescribed manner at the time of filing of return of income under Section 139 (1) of the Act. The prescribed manner is provided in Rule 21AE of the Rules for filing of Form 10IC to avail the benefit of provisions unde....
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....per cent 10) such person. 2. Representations have been received by the Board stating that Form 10-IC could not be filed along with the return of income for AY 2020-21, which was the first rear of fling of this form. It has been requested that the delay in filing of form 10-may be condoned. 3. On consideration of the matter, with a view to avoid genuine hardship to the domestic companies in exercising the option u/s 11SBAA of the Act, the Central Board of Direct Taxes, In exercise of the powers conferred under section 119 (2) (b) of the Act, hereby directs that :- The delay in filing of Form 10-IC as per Rule 21AE of the Rules for the previous year relevant to A. Y 2020-21 is condoned in cases where the following conditions are satisfied: (i) The return of income for AY 2020-21 has been filed on or before the due date o specified under section 139 (1) of the Act; (ii) The assessee company has opted for taxation u/s 115BAA of the Act in (e) of "Filing Status" in "Part A-GEN" of the Form of Return of Income ITR-6 and (iii) Forn 10-1C is filed electronically on or before 30.06.2022 or 3 months from the end of the month in which this Circular is issued, whichever is later." ....
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....e applicable in the facts of the case, as in the facts of the present case, the assessee has claimed the exemption under Section 11 read with Section 12A(1)(b) of the Act which required the assessee to file audit report in Form of 10B which has nothing to do with claiming 100% exemption of total income in respect of newly established 100% Export Oriented Undertakings under Section 10B. Section 10B(8) requires the assessee to file an undertaking before the due date of furnishing of return of income under sub-section (1) of Section 139 before the Assessing Officer in writing that the provision of Section 10B may not be made applicable to him, otherwise the provision of this Section shall not apply to him for any of the relevant assessment year. 6. Considering the language of the provision of Section 10B (8) of the Act, the Hon'ble Supreme Court held that it was mandatory on part of the assessee to file declaration before the due date of filing of return under sub-section (1) of Section 139 of the Act, whereas in the facts of the said case the assessee filed such undertaking along with the revised return under sub-section (5) of Section 139 of the Act and in such facts the Hon'ble S....
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....s of claim of deduction at the time of filing the return. If an assessee claims an exemption under the Act by virtue of Section 10B, then the correctness of claim has already been verified under section 10B (5). Therefore, if the claim is withdrawn post the date of filing of return, the accountant's report under section 10B (5) would become falsified and would stand to be nullified." 17. On perusal of the above observation of the Hon'ble Apex Court, it is also apparent that the Hon'ble Apex Court has considered the significance of filing declaration under Section 10B(8) of the Act considering the provisions of Section 10B (5) of the Act being a check to verify the correctness of the claim of deduction at the time of filing of return so that if an assessee claims an exemption under the Act by virtue of Section 10B of the Act, then the correctness of the claim has already been verified under 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....