Sanjay Kumar Gupta, Kanpur V. ITO-5(3), Kanpur

ITA 3/LKW/2023

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Shri Sanjay Kumar Gupta, a partner in the firm M/s Rajiv Prem & Associates, appealed against the levy of late fees under section 234F of the Income Tax Act, which was imposed due to the alleged late filing of his income tax returns for the assessment years 2018-19 and 2019-20. The Income Tax Officer had levied a fee of Rs.5,000 for each year, which was upheld by the CIT(A). However, Gupta contended that his returns were filed within the extended due dates granted by the CBDT, specifically on 31/10/2018 for 2018-19 and 31/10/2019 for 2019-20. The Tribunal, after considering the submissions and the relevant CBDT orders, agreed with Gupta and directed the deletion of the levied fees.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113161 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-05-2023
• Assessment Year: 2019-2020
• Appeal Filed On: 03-01-2023
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Section: 154; 143(1); 139(1); 119

Judgement Text

I.T.A. No. 2 & 3/Lkw/2023 Assessment year:2018-19 & 2019-20 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH ‘B’, LUCKNOW BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI ANADEE NATH MISSHRA, ACCOUNTANT MEMBER I.T.A. No. 2 & 3/Lkw/2023 Assessment Year: 2018-19 & 19-20 Shri Sanjay Kumar Gupta, 128/953, Y Block, Kidwai Nagar, Kanpur. PAN:ABKPG5624K Vs. Income Tax Officer-5(3), Kanpur. (Appellant) (Respondent) O R D E R PER BENCH: (A) Appeal vide I.T.A. No. 2/Lkw/2023 has been filed by the assessee for assessment year 2018-19 against impugned appellate order dated 09/11/2022 (DIN & Order No.ITBA/NFAC/S/250/2022-23/1047159138(1) of learned CIT(A). The grounds of appeal are as under: Appellants by Shri Shailendra Sachan, Advocate Respondent by Shri Harish Gidwani, D.R. Date of hearing 02/05/2023 Date of pronouncement 08/05/2023 I.T.A. No. 2 & 3/Lkw/2023 Assessment year:2018-19 & 2019-20 2 1. That the explanation furnished by the assessee has not been found to be false or unture. The levy of interest charged u/s 234F is bad in law and may be deleted. 2. That the learned CIT(A) NFAC has erred on facts and in law in upholding the wrong levy of interest of Rs.5,000/- u/s 234F as late fee vide order dated 09/11/2022. (A.1) Appeal vide I.T.A. No. 3/Lkw/2023 has been filed by the assessee for assessment year 2019-20 against impugned appellate order dated 09/11/2022 (DIN & Order No.ITBA/NFAC/S/250/2022-23/1047159182(1) of learned CIT(A). The grounds of appeal are as under: 1. That the explanation furnished by the assessee has not been found to be false or unture. The levy of interest charged u/s 234F is bad in law and may be deleted. 2. That the learned CIT(A) NFAC has erred on facts and in law in upholding the wrong levy of interest of Rs.5,000/- u/s 234F as late fee vide order dated 09/11/2022. (B) For the sake of convenience, these two appeals are disposed of through this consolidated order. For assessment year 2018-19, return of income was filed on 27/09/2018 which was processed u/s 143(1) of the I.T. Act. Vide intimation issued to the assessee u/s 143(1) of the Act, an amount of Rs.5,000/- was levied as fees u/s 234F of the I.T. Act on the ground that the return was filed after (extended) due date of filing of return. The assessee filed a rectification petition u/s 154 of the Act against the aforesaid intimations u/s 143(1) of the Act requesting to delete the aforesaid levy of Rs.5,000/- made u/s 234F of the Act. The assessee’s rectification petition u/s 234F of the Act was dismissed vide order dated 09/12/2022. Aggrieved, the assessee filed appeal with the office of learned Commissioner of Income Tax (“CIT(A)” for short). Vide impugned aforesaid I.T.A. No. 2 & 3/Lkw/2023 Assessment year:2018-19 & 2019-20 3 appellate order dated 09/11/2022, the learned CIT(A) dismissed the assessee’s appeals and confirmed the aforesaid levy of Rs.5,000/- u/s 234F of the Act. The present appeal vide I.T.A. No.2/Lkw/2023 is filed by the assessee against the aforesaid impugned appellate order dated 09/11/2022 of the learned CIT(A). (B.1) For assessment year 2019-20, the assessee filed return of income on 18/10/2019 which was processed u/s 143(1) of the Act. Vide intimation, issued u/s 143(1) of the Act, a fee of Rs.5,000/- was levied u/s 234F of the Act on the ground that the assessee’s return was filed after (extended) due date for filing of the return. The assessee filed rectification petition u/s 154 of the Act requesting to delete the aforesaid levy of Rs.5,000/- u/s 234F of the Act. Vide order dated 08/12/2022, the assessee’s rectification petition was rejected. Aggrieved, the assessee filed appeal in the office of the CIT(A). Vide impugned appellate order dated 09/11/2022, the learned CIT(A) dismissed the assessee’s appeal and confirmed the aforesaid levy of Rs.5,000/- u/s 234F of the Act. The present appeal vide I.T.A. No. 3/Lkw/2023 has been filed by the assessee against the aforesaid impugned appellate order of learned CIT(A). (C) At the time of hearing before us, the assessee was represented by Shri Shailendra Sachan, Advocate while the Revenue was represented by Shri Harish Gidwani, D.R. The common issue involved in both these appeals is whether the due date of filing of return in the case of the assessee is 31/10/2018 for assessment year 2018-19 and 31/10/2019 for assessment year 2019-20, as claimed by the assessee. The Learned counsel for the assessee submitted that the assessee is a partner in the partnership firm of M/s Rajiv Prem & Associates and assessee earned income by way of salary I.T.A. No. 2 & 3/Lkw/2023 Assessment year:2018-19 & 2019-20 4 and interest from the aforesaid partnership firm. Further the Learned counsel for the assessee also submitted that the aforesaid income by way of salary and interest from the partnership firm has been duly reflected by the assessee in the return of income for assessment year 2018-19 and 2019-20. Learned counsel for the assessee further submitted that the aforesaid partnership firm M/s Rajiv Prem & Associates is liable to get its accounts audited under relevant provisions of the I. T. Act. In view of the foregoing, Learned counsel for the assessee submitted, the due date of filing of return of income in the case of the assessee for assessment year 2018-19 was 31/10/2018 and for assessment year 2019-20, the due date of filing of return of income was 31/10/2019. The Learned counsel for the assessee further contended that the returns were filed by the assessee, for each of assessment year 2018-19 and 2019-20 within the aforesaid due date of filing of return. In view of the foregoing, he strongly contended that there was no case for levy of fees u/s 234F of the Act. (C.1) Learned Sr. D.R. relied on the impugned orders of the learned CIT(A). (C.2) There is no dispute on the relevant facts. It is not in dispute that the assessee is a partner in partnership firm M/s Rajiv Prem & Associates. It is also not in dispute that the aforesaid partnership firm is liable to get its accounts audited under relevant provisions of I.T. Act. It is further not in dispute that the assessee’s income from the aforesaid firm by way of salary and interest has already been reflected in the returns filed by the assessee for assessment year 2018-19 and 2019-20. In these facts and circumstances, the due date for filing of return is to be ascertained in accordance with Explanation 2(a)(iii) of S. 139(1) of I.T. Act. Further, vide order dated 8/10/2018 of CBDT in F.No.225/358/2018/ITA.II passed u/s I.T.A. No. 2 & 3/Lkw/2023 Assessment year:2018-19 & 2019-20 5 119 of I.T. Act, due date of filing of return for assessment year 2018-19 was extended to 31/10/2018. Similarly, for assessment year 2019-20, due date for filing of return was extended to 31/10/2019 vide order dated 27/09/2019 of CBDT in F.No.225/157/2019/ITA.II passed u/s 119 of the I.T. Act. (C.2.1) In view of the aforesaid facts and legal position, we hold that the assessee has filed the return of income for assessment year 2018-19 and 2019-20 within the prescribed due dates of filing of returns, 31/10/2018 for assessment year 2018-19 and 31/10/2019 for assessment year 2019-20. Consequently, we hold that there is no case for levy of fees u/s 234F either in assessment year 2018-19 or in assessment year 2019-20. Accordingly, we direct the Assessing Officer to delete the fees of Rs.5,000/- each levied u/s 234F of the Act in assessment year 2018-19 and 2019-20. (F) In the result, both the appeals are allowed. (Order pronounced in the open court on 08/05/2023) Sd/. Sd/. (SUDHANSHU SRIVASTAVA) (ANADEE NATH MISSHRA) Judicial Member Accountant Member Dated:08/05/2023 *Singh Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Assistant Registrar