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TMI Blog2024 (8) TMI 1299X X X X Extracts X X X X X X X X Extracts X X X X ..... the case and in law, Ld. Addl./ JCIT(A) was justified in allowing the deduction u/s 80IA on the ground that the delay in filing of Form 10CCB was due to technical glitches that are claimed to have prevailed in the Income Tax portal on the night of 31.10.2022 at the time of filing of Form 10CCB relying only upon the statement provided by the assessee in Form 35, ignoring that no evidence whatsoever has been adduced by the assessee in this regard, such as ticket raised in ITBA or screenshot of the error or e-mail sent to concerned authority or screenshot of the dialogue box / message appearing on screen declining the uploading of Form 10CCB, etc.? 3. Whether on facts and circumstances of the case and in law, Ld. Addl./JCIT(A) was justified in condoning delay in submission of Form 10CCB based on the contention that due to the technical glitches in the Income Tax Portal on 31.10.2022, the due date for filing of Tax Audit report was extended by 7 days, i.e., till 7th November 2022, ignoring that the extended due date till 7th November 2022 issued vide CBDT circular no. 20/2022 is not applicable in the case of the assessee? 4. Whether on the facts and the circumstances of the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 minutes. As per the statement in form 35 filed by the appellant, the delay was due to technical glitches that prevailed in the Income Tax portal on the night of 31.10.2022 at the time of filing of form 10CCB. At this juncture, it is also relevant to note that due to the technical glitches in the Income Tax Portal on 31.10.2022, the due date for filing of Tax Audit report was extended by 7 days, i.e., till 7th November, 2022. Hence, the appellant's reasons for delayed filing of Form 10CCB due to technical glitch in Income Tax portal appears to be genuine, and therefore appellants request for condonation of delay warrants to be condoned. Accordingly, the delay in filing Form 10CCB by one day (more specifically one hour and 22 minutes) on grounds of technical glitch in the Income Tax portal is hereby condoned. Therefore, considering the technical glitch in the departmental portal on 31.10.2022 night and the fact that the due date for filing of Tax Audit report was also extended till 7th November, 2022, and also since appellant has now fulfilled meeting the mandatory requirement of filing of Form 10CCB after condonation, the assessing officer is hereby directed to allow the deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , such as ticket raised in ITBA or screen shot of the error or e-mail sent to concerned authority or screen shot of the dialogue box / message appearing on screen declining the uploading of Form 10CCB. 8. It is further submitted that Ld. Addl./ JCIT(A) have condoned the delay in submission of Form 10CCB believing the contention and explanation offered by the assessee that delay was occasioned due to technical glitches in the Income Tax Portal on 31.10.2022. Ld CIT-DR, further contradicting the contentions of the assessee that the income tax portal was not functioning properly and for that reason only due date of filing of Tax Audit Report was extended by 7 days till 7th November 2022 vide CBDT circular 20/2022, but such extension granted has nothing to do with the filing of Form 10CCB, therefore, such explanation cannot be helpful or applicable in the case of present assessee. Ld. CIT-DR further referring to the grounds of appeal have submitted that the condonation of delay allowed by the Ld. Addl./JCIT(A) was not justified, as the provisions of Act u/s 119(2)(b), the Addl./JCIT(A) is not empowered thus, he was not the prescribed authority for allowing the condonation of delay in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax/Chief Commissioners of Income-tax (Pr.CCsIT/CCsIT) shall be vested with the powers of acceptance/rejection of such applications/claims if the amount of such claims exceeds Rs. 10 lakhs but is not more than Rs. 50 lakhs for any one assessment year. The applications/claims for amount exceeding Rs. 50 lakhs shall be considered by the Board. 3. No condonation application for claim of refund/loss shall be entertained beyond six years from the end of the assessment year for which such application/claim is made. This limit of six years shall be applicable to all authorities having powers to condone the delay as per the above prescribed monetary limits, including the Board. A condonation application should be disposed of within six months from the end of the month in which the application is received by the competent authority, as far as possible. 4. In a case where refund claim has arisen consequent to a Court order, the period for which any such proceedings were pending before any Court of Law shall be ignored while calculating the said period of six years, provided such condonation application is filed within six months from the end of the month in which the Court order was iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra 2 above and issue suitable directions to them for proper implementation of this Circular. However, no review of or appeal against the orders of such authorities would be entertained by the Board. 11. Ld. CIT-DR further placed his reliance on the order of ITAT, Delhi in the case of Pradeep Kumar Batra, New Delhi vs Dcit -CPC, New Delhi on 23 October, 2020 wherein on the similar issue ITAT, Delhi has held as under: 8. We have carefully considered the rival contention and perused the orders of the lower authorities. We have also perused the communication of the proposed adjustment u/s 143 (l)(a) of the income tax act issued by the central processing centre, Bangalore on 24/9/2018 wherein it is intimated to assessee that there is an incorrect claim Under Chapter VIA of the income tax act of Rs. 271,654 for non-filing of the audit report u/s 80 IB in form number 10CCB within due date of the filing of the return of income. The facts clearly shows that the due date of filing of the return of income was 7/11/2017 whereas the assessee filed his return of income on 6 November 2017 however according to his own version he uploaded that form on 6/11/2017 the income tax return and all othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bligation to file Tax Audit Report u/s 80IA(7) in Form 10CCB. In order to fulfil with such compliance, the assessee had tried to upload the said report before the prescribed time limitation on 31.10.2022 i.e. before 12:00 in the mid night, however due to certain technical glitches in the IT Portal, Form 10CCB could not be uploaded within the available time. In continuation, assessee again attempted to upload the same electronically on 01.11.2022 at 12.25 am, but remain unsuccessful, screen shot showing date and time of such facts was placed before us at page no. 123 of PB, the same is extracted hereunder. 14. Another attempt was made again on 01.11.2022 at 1.19 AM, this time page kept on loading, but report could not be uploaded. Screen shot showing date and time of this fact has also placed before us at page no. 124 of PB, the same is extracted hereunder. 15. Finally, in next attempt assessee succeed and the report was uploaded on 01.11.2022 at 01.22 AM, screen shot showing date and time is placed at page no. 125 and acknowledgement at page no. 127, the same is also enclosed in the paper book for the sake of clarity, written submission is also placed by the Ld. AR, the same is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2()22 extended to 07.10.2022 due to technical glitch. 10. Insignificant delay condoned in DCIT vs M/S Palava Dwellers P. Ltd. in ITA no. 2147/Mum/2018 dated 20.02.2020, para no. 14, 17 & 28. 16. Ld. AR further submitted a statement showing relevant date and time for filing of various documents with the department to substantiate that the assessee is a law-abiding company and the appellant assessee, who had filed almost all the mandatory forms with the department, except a few, where the unintentional delay in filing was caused due to technical glitches on the website of department, the statement furnished before us showing some details is extracted as under: 17. Ld. AR further submitted that Audit Report though was filed belatedly, it was just a directory requirement. It was filed before the filing of return and when the returned was processed u/s 143(1), the Tax Audit Report was very much in existence on the departments record and available to access by the Ld. AO(CPC). It was the submission that without prejudice, delay in filing of audit report in Form No. 10CCB was attributable to technical glitches and therefore, the assessee shall not be penalised on account of such unint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment proceedings. On appeal, Id. CIT(A) and ITAT upheld the claim of the assessee. It was held by Hon'ble High Court that the Tribunal has considered this issue and found that claim of the assessee as per Form 10CCB filed during the assessment proceedings was admissible. 5. CIT vs Medicaps Ltd. (2010) 323 ITR 554, PN 148 to 150 of PB AO denied the benefit u/s 80-1A on the ground that the audit report was not filed and the conditions of sec. 80IA(2) were not satisfied. ITAT held that fulfilment of conditions mentioned u/s 80IA(2) were not disputed before Tribunal and that proper books of accounts were maintained, audited and audit report in prescribed Form was filed. On issue of audit report being filed at the appellate stage, Tribunal held that filing of audit report is procedural and directory in nature and the same can be filed at the appellant stage. It was held by Hon'ble High Court that the Tribunal has not committed any error of law in holding respondent entitled to the benefits of deduction u/s 801A(2) of the act. 6. Sutures India (P.) Ltd. vs CIT (2021) 431 ITR 0332 (Karn), PN 208 to 212 of PB Ld. CIT(A) invoked provisions u/s 263 and disallowed the deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is a Builder and engaged in the business of construction and development of real estate projects. During the assessment year under consideration assessee executed various projects and many of them were still under construction. The assessee filed its return of income electronically on 30.11.2014 midnight. However due to technical glitch and rush hours there was a delay of two minutes in return getting uploaded and due to which the date of filing of return appeared on the acknowledgment as 01st December 2014. In its return of income, the assessee declared income of Rs..206,93,75,430/- under normal provisions of the Act and book profits at Rs..290,37,59,620/- u/s. 115JB of the Act. Subsequently, the assessee filed revised return of income on 31.03.2016 declaring income at Rs..196,14,10,368/- under normal provisions of the Act for giving effect to the order of the Hon'ble Bombay High Court which approved the merger of Mahavir Build Estate Limited and Galaxy Premises Private Limited with the assessee w.e.f. 01st April, 2013 and also to rectify certain clerical errors. 17. Ld. Counsel Shri Rajan Vora appearing for the assessee submitted that assessee filed its return of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f two minutes which was caused due to technical glitch and last hour of rush in the website, we direct the Assessing Officer to treat the original return filed by the assessee for the A.Y. 2014-15 as filed in time and consequently to consider the revised return of income filed by the assessee for the purpose of computing the income of the assessee. 20. Ld. AR further drew our attention to page no. 101 & 116 of the PB, with the explanation that the UDIN No. "22402568BBPGLD8566", to be mentioned on Form 10CCB was generated by the Auditor of the company at 23:47:44 after submitting the document successfully on the website of the Institute of Chartered Accountants of India (ICAI), such fact establishes that Form 10CCB was duly prepared and successfully submitted for generation of UDIN No. & simultaneously, the assessee had initiated its efforts to upload the same on the Income Tax Portal, there was no reason or cause for which the assessee would have any benefit in delaying the filing of a document which was finalized and already submitted on the portal of ICAI. The technical glitches and might be the last minute rush on the website was the only reason which had prevented the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laid down by Hon'ble Apex Court in the case of Dilip Kumar & Company (supra) that "Exemption notifications should be interpreted strictly". First, we shall be dealing with the issue regarding technical glitch and over burden due to last minute rush on the website of Income Tax Department. On perusal of the copies of screenshots submitted before us, it is transpired that the assessee was consistently trying to upload Form 10CCB on the website of the department, after few unsuccessful attempts, it finally got success to file the Form 10CCB at 01:22 on 01.11.2022. Undisputedly, the delay happened at the same time there was no allegation that requisite compliance qua eligibility to claim deduction u/s 80IA could not be fulfilled by the assessee. Since CBDT had granted extension to the assessees on account of technical glitches on the Income Tax Portal on 31.10.2022, may be for some other compliances say filing of Tax Audit Report, however, the fact that the Income Tax portal was facing technical issues and malfunctions cannot be ruled out. The errors on the portal which blocked the assessee to file the requisite form which was readily prepared and furnished before the ICAI and UDIN No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to condone the delay in the case of a return which is filed late and where a claim for carry forward of losses is made. 8. Coming back to the facts of the present case, we find that the impugned order under Section 119 passed by the Board is a nonspeaking one. Normally, we would have remanded the matter to the Board to consider the application of the petitioner afresh. However, we find that in the present case, the delay is only of one day and the circumstances have been explained and have not been controverted by the respondents. The fact of the matter is that the petitioner did reach the Central Revenue Building before the closure of the counter on 01.11.2004. It is only because he was sent from one room to the other and had to wait in long queues that he could not present the return at the counter which was receiving the returns prior to 6.00 p.m. on that date. We feel that sufficient cause has been shown by the petitioner for the delay of one day in filing the return. If the delay is not condoned, it would cause genuine hardship to the petitioner. Thus, in the circumstances of this case, instead of remanding the matter back to the CBDT, we direct that the delay of one day in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that the prescribed Form was filed and available before the Ld. AO(CPC) when the return of the assessee was processed u/s 143(1) of the Act, the department was very much in possession of Form 10CCB while the intimation was issued. Since, it is decided that delay in filing of Form 10CCB in present case was occasioned due to technical issues on the portal of income tax department for which the assessee cannot be held liable, therefore, the case laws relied upon by the revenue qua implementation of exemption notifications is irrelevant. CBDT's Circular 9/2015 regarding delay in filing refund claim and claim for carry forward losses u/s 119(2)(b) is also of no help as the delay was caused because of malfunction in the income tax website. Case law of Pradeep Kumar Batra (supra) relied upon by the department is also distinguishable on facts wherein the claim of deduction u/s 80IB(11B) was denied because the Form 10CCB was accepted by the assessee much beyond the due date of filing of return, whereas in the present case the prescribed form was filed only with a delay of 1 Hour 22 Minutes also much before the due date of filing of the return. 26. In view of aforesaid observations, fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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