Mantangi Rubber Pvt. Ltd., New Delhi vs Assessee

1 ITA 4498 & CO250/Del/2013 M/s Matangi Rubber (P)

aIN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH "E" NEW DELHI BEFORE SHRI S.V. MEHROTRA : ACCOUNTANT MEMBER AND SHRI H.S. SIDHU: JUDICIAL MEMBER

ITA no. 4498/Del/2013 A.Y. 2009-10 Income-tax Officer, Vs. Mantangi Rubber Pvt. Ltd., Ward 6(3), New Delhi. 83, Anand Lok, New Delhi. PAN: AAECM 3222 B

C.O. No. 250/Del/2013 ( In ITA no. 4498/Del/2013 ) A.Y. 2009-10 Mantangi Rubber Pvt. Ltd., Vs. Income-tax Officer, 83, Anand Lok, New Delhi. Ward 6(3), New Delhi.

( Appellant ) ( Respondent )

Revenue by : Shri K.K. Jaiswal Sr. DR Assessee by : Shri Ashwani Kumar CA

Date of hearing : 23-04-2015 Date of order : 29-05-2015.

ORDER

PER S.V. MEHROTRA, A.M:-

The appeal, by the revenue and the cross-objection by the assessee, are directed against the order dated 6-6-2013 passed by the ld. CIT(A)-IX, New Delhi, 2 ITA 4498 & CO250/Del/2013 M/s Matangi Rubber (P)

pertaining to AY 2009-10. Both the matters were heard together and are being disposed of by a common order for the sake of convenience.

2. Brief facts of the care are that as per AO, e-return of income, declaring Nil income, was filed with acknowledgement no. 982454810111009 on 1-10-2009, after claiming deduction u/s 80IC of Rs. 2,34,41,162/-. The AO denied deduction u/s 80IC on the ground that assessee had not filed the return within specified time u/s 139(1), because as per records the return was filed on 1-10-2009 and not on 30- 9-2009. He did not accept the assessee's contention that the return was actually uploaded and filed on the site of the Income-tax department at 12.46AM on 1-10- 2009 and thus there was only a technical delay of 46 minutes in filing of return which, in any case, was filed before the commencement of the next working day.

3. Ld. CIT(A) directed the AO to verify the date when the return was uploaded and sent into transmission observing as under:

"The AO is directed to verify the contention of the appellant with the information available with the Directorate of systems regarding this electronic trail of the e-return filed. In case it is found that the return was indeed unloaded with the electronic signature on 30-09-2009, the stipulated date of filing of the return, then it shall be held as per the principles of Law of Contract that the return was irrevocably set into transmission, the act as per law, on the part of the appellant being complete. In such a case the delay in the acknowledgement being sent, and it being dated 01-10-2009 shall not have any bearing on the case. In the event of being uploading and submission being completed by 30-09-2009 it shall be held that he return was filed on time and all the related benefits shall then be made available to the appellant. The AO is thus directed to obtain the electronic trail of filing of the return from DIT(Systems). If the return was duly uploaded and set into transmission by 30-09- 3 ITA 4498 & CO250/Del/2013 M/s Matangi Rubber (P)

2009 then the AO is directed to give the benefits of Section 80IC. In case it is seen that the return was duly uploaded and set into transmission sonly by 01-10-2009 then the benefit of section 80IC shall not be available as the mandatory requirement of section 80AC would not have been met."

4. Being aggrieved with the direction of ld. CIT(A), the department is in appeal before us and has taken following grounds of appeal:

"1. The order of the learned CIT(Appeals) is erroneous and contrary to facts & law.

2. On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) has erred in holding that if the uploading and submission of e-filed return by the assessee was completed by 30.09.2009 then the assessee will be get the benefit of deduction u/s 801e.

3. On the facts and in the circumstances of the case and in law, the learned CIT (Appeals) erred in deleting the addition the addition without giving AO opportunity for rebut as per rule 46A, as no remand report was called for in respect of verifying the electronic trial of filling the return from DIT (Systems).

4. That the order of the Ld. CIT(A) is erroneous and is not tenable on the facts and in law.

5. That the grounds of Appeal are without prejudice to each other.

6. The appellant craves leave to add, to alter, or amend on the ground of at the appeal raised above at the time of hearing.

5. The assessee has filed cross-objection, taking following grounds:

(1) That the order dated 06-06-2013 passed u/s 250(6) of the Income-tax Act, 1961 by the Learned Commissioner of Income-

Tax (Appeals) IX, New Delhi is against law and facts on the file in as much as she was not justified to set aside the assessment and restore the matter back to the file of Ld Assessing Officer.

(2) That the order dated 06-06-2013 passed u/s 250(6) of the Income-tax Act, 1961 by the Learned Commissioner of Income-

4 ITA 4498 & CO250/Del/2013 M/s Matangi Rubber (P)

Tax (Appeals) IX, New Delhi is against law and facts on the file in as much as she was not justified to hold that the benefit of Section 80-IC of the Income-tax Act, 1961 shall not be available as the requirements of Section 80-AC are mandatory whereas the provisions of Section 80-AC are not mandatory but only directory in nature.

6. We have considered the submissions of both the parties and have perused the record of the case. Admittedly, at best the delay is of 46 minutes in filing the e-return. On account of this delay, the acknowledgement bears the date 1-10-2009. There can be several reasons for this small delay including technical reasons. But considering the fact that the return was filed in the intervening night of 30-9-2009 and 1-10-2009, the assessee's claim, if otherwise admissible, cannot be denied on account of this technical delay. In our opinion, it would be travesty of justice if for a technical delay of 46 minutes in filing the return of income, a deduction of Rs. 2,34,41,162/- is denied to assessee.

7. Section 80AC provides that deduction u/s 80IC shall be allowed to assessee if the return is filed on or before the due date specified under sub-section (1) of section 139. However, section 139(4) carves out an exception to the time limit u/s 139(1) for filing the return of income. Therefore, time limit for filing the return of income is neither inflexible nor inelastic. Thus, the provisions of section 80AC are directory and even the Board may, under the provision of section 119, condone the delay in order to avoid undue hardship.

8. In the present case it cannot be said that the delay was, in any manner, mala fide. On the contrary, the assessee was vigilant enough to file the return at the midnight. We, therefore, condone the delay in filing the return.

9. As far as ld. CIT(A)'s direction to the AO is concerned, we find that the assessee itself has clearly stated in its reply reproduced by AO in the assessment 5 ITA 4498 & CO250/Del/2013 M/s Matangi Rubber (P)

order, that the return was uploaded at 12.46 AM on 1-10-2009. Therefore, there was no necessity for restoring the matter to the file of AO for any verification.

10. In view of above discussion, the cross-objection filed by the assessee is allowed and, therefore, the department's appeal has become infructuous. However, since the AO has not examined the assessee's claim u/s 80IC in detail and has rejected the same only on the ground of delay in filing of the return, we restore the matter to the file of AO for examining the assessee's claim u/s 80IC.

11. In the result, department's appeal is dismissed being infructuous and the assessee's cross objection is allowed for statistical purposes only.

Order pronounced in open court on 29-05-2015.

Sd/- Sd/- (H.S. SIDHU) ( S.V. MEHROTRA ) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 29-05-2015. MP: Copy to : 1. Assessee 2. AO 3. CIT 4. CIT(A) 5. DR