GULU HASSANAND RANEY, MUMBAI V. ASSTT. DIRECTOR OF I.T. BAGALORE-CPC (INT.TAX WARD 4(1)(1), , MUMBAI

MA 510/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4817 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 09-11-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 13-08-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: BIPIN JAIN
• Section: 139(1); 254(2); 44AB; 119

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “I” BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER, AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.510/Mum./2023 (Arising out of ITA No.11/Mum./2023) (Assessment Year : 2016–17) Gulu Hassanand Raney 34, Kartar Bhavan, 121 Shahid Bhagatsingh Road Colaba, Mumbai 400 005 PAN – AABPR4027P ................ Applicant (Original Appellant) v/s Asstt. Director of Income Tax Central Processing Centre, Bengaluru International Taxation Ward-4(1)(1), Mumbai ................Respondent (Original Respondent) Assessee by : Shri Bipin Jain Revenue by : Shri H.M. Bhatt Date of Hearing – 10/11/2023 Date of Order – 04/12/2023 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present Miscellaneous Application has been filed by the assessee under section 254(2) of the Income Tax Act, 1961 (“the Act”) seeking recall/rectification of the order dated 21/03/2023, passed by the coordinate bench of the Tribunal in assessee’s appeal being ITA no.11/Mum./2023, for the assessment year 2016–17. 2. For ready reference, the submissions made by the assessee in the Miscellaneous Application are as under: Gulu Hassanand Raney M.A. no.510/Mum./2023 Page | 2 “B. Following are the mistakes apparent on record in the impugned order: The Ground of Appeal No. 6, it was prayed that due date of filing return of income will be 17.10.2016, the extended date as per press release dt. 94 Sept. 2016 and clarification from CBDT dt. 14.09.2016. Your honour in para 3.3 and 3.4 of order came to conclusion that extension for filing return up to 17.10.2016 applies only to assessee's whose accounts are liable to be audited u/s 44AB and since appellant's case falls under explanation 2(2)(ii) of section 139(1) extended due date of 17.10.2016 is not applicable and held that in appellant's case due date for filing return will be 30.09.2016 only and not 17.10.2016. It is respectfully submitted that in appellant's case due date will be 17.10.2016 for following reasons which are not considered. 1. In clarification u/s 119 of the Income Tax Act, 1961 dt. 09.09.2016 by letter dt. 14.09.2016 it is clarified as under in 2nd para of letter dt. 14.09.2016. "Therefore, extended due date as per CBDT order dated 9th September, 2016 would also apply for the purpose of section 44AB of the Act." This clearly shows that due date was extended u/s 139(1) read with explanation 2 for all cases. Where accounts are to be audited word used also in clarification dt. 14.09.2016 by CBDT it was clear that extension was for all assessee's falling u/s 139(1) explanation 2 and not only for 44AB cases. 2. We further submit that even in press release dt. 09.09.2016 reason for extension is given which reads as under. "However, taking into consideration that the last date for making declaration under the Income Declaration Scheme 2016 is also 30th September, 2016, the Central Board of Direct Taxes has decided to extend the last date for such returns which were due on 30th September, 2016 to 17th October, 2016 in order to remove inconvenience and to facilitate ease of compliance." This clearly shows extension upto 17.10.2016 was in all cases where due date was 30.09.2016.” 3. Thus, as per the assessee, the due date for filing the return of income in his case was extended from 30/09/2016 to 17/10/2016. In this regard, the assessee has also placed reliance on the press release issued by CBDT on 09/09/2016 and clarification issued on 14/09/2016. Accordingly, the assessee has prayed for recall of the order dated 21/03/2023 and in alternate sought Gulu Hassanand Raney M.A. no.510/Mum./2023 Page | 3 rectification of the aforesaid order to consider the due date for filing the return of income as 17/10/2016 instead of 30/09/2016. 4. On the other hand, the learned Departmental Representative has objected to the prayer made in the present Miscellaneous Application. 5. We have considered the submissions of both sides and perused the material available on record. From the perusal of the record, we find that in the present case, the assessee was carrying on the business of agencies of shipyards and marine electronics by way of representing foreign shipyard and/or ship owner for ship repairing and/or day docking processes as a proprietor in the name of Nautilus International (India). Since the assessee became non-resident, he was required to obtain approval from the Reserve Bank of India under the provisions of the Foreign Exchange Regulation Act, 1973 (“FERA”) for continuing his said proprietary business. The permission was granted under section 29(1)(a) of FERA vide RBI’s letter dated 05/08/1985. As per clause (iii) of the said RBI permission, one of the conditions was that the accounts are to be audited by the Chartered Accountant. Accordingly, for the year under consideration, i.e. for the assessment year 2016-17, the accounts of the assessee were audited by a Chartered Accountant on 15/10/2016. The assessee filed its return of income for the year under consideration on 17/10/2016 claiming a business loss of Rs. 8,38,301 to be carried forward to the subsequent years. The AO denied the claim of the assessee to carry forward its business loss to the subsequent years as the return of income was not filed within the due date prescribed under section 139(1) of the Act. In its appeal before the Tribunal, the assessee placed reliance upon the press Gulu Hassanand Raney M.A. no.510/Mum./2023 Page | 4 release dated 09/09/2016 issued by the CBDT extending the due date for filing the return of income from 30/09/2016 to 17/10/2016 for the assessment year 2016-17. Further, the assessee submitted that as per Explanation-2 to section 139(1) of the Act, the due date for filing the return of income in case of a person other than a company whose accounts are required to be audited under the Act or any other law for the time being in force is 30 th September of the assessment year, which was extended by the CBDT to 17/10/2016 for the assessment year 2016-17. Accordingly, the assessee submitted that the return of income filed on 17/10/2016 is within the due date prescribed under section 139(1) of the Act. The coordinate bench of the Tribunal vide order dated 21/03/2023 after considering the submissions of both sides held that the due date for filing the return of income in the case of the assessee for the assessment year 2016-17 is 30/09/2016 and not 17/10/2016 as contended by the assessee. The relevant findings of the coordinate bench of the Tribunal, in the aforesaid decision, are reproduced as under:- “3.3. We find that assessee's case herein falls under the ambit of Explanation 2(a)(ii) to Section 139(1) of the Act, as the assessee is liable for audit under any other law for the time being in force. This expression "due date" is also mentioned in press release dated 09/09/2016. But on bare reading of the press release dated 09/09/2016, we are of the considered view that "due date" of filing of income tax return is extended from 30/09/2016 to 17/10/2016 only in respect of assessees whose accounts are required to be audited under the Income tax Act. This fact is further strengthened by the last line of the first paragraph of the press release extending the due date for professionals whose accounts are to be audited under the Income Tax Act by stating the expression "above mentioned due date". Further, in the second para of the press release dated 09/09/2016, the CBDT in categorical terms states that it has decided to extend the last date for "such returns" which was due on 30/09/2016 to 17/10/2016. These words categorically go to prove that the CBDT had sought to extend due date from 30/09/2016 to 17/10/2016 only in respect of those cases where accounts are required to be audited under the provisions of Income Tax Act while filing the income tax returns. The said extended due date benefit cannot be extended to those assessee's who were liable to get their accounts audited under any other law for the time being in force which is the case as that of the assessee before us. Hence, we hold that due date of filing of Gulu Hassanand Raney M.A. no.510/Mum./2023 Page | 5 income tax return for the assessee for A.Yrs. 2016-17 is 30/09/2016 and not 17/10/2016 as contended by the Id. AR.” 6. We find that in the present Miscellaneous Application also the assessee by placing reliance upon the press release dated 09/09/2016 issued by the CBDT and Explanation-2 to section 139(1) of the Act, submitted that the due date for filing the return of income in his case for assessment year 2016-17 was extended from 30/09/2016 to 17/10/2016. In the present Miscellaneous Application, the assessee has also placed on record clarification dated 14/09/2016 issued by the CBDT in support of the aforesaid claim. For the sake of convenience, the said clarification dated 14/09/2016 is reproduced as under:- “Clarification req. u/s 119 of the Income-tax Act, 1961 dated 9th September 2016 Central Board of Direct Taxes, vide order u/s 119 of the Income-tax Act, 1961 ('Act') dated 9 September, 2016, has extended the 'due date' for filing of income tax returns by the taxpayers whose accounts are audited u/s 44AB and who are required to furnish the returns of income for Assessment Year 2016-17 by 30th September, 2016 as per provisions of section 139(1) of the Act from 30 September, 2016 to 17th October, 2016. Clarifications are now being sought whether the said extension of 'due date' would also apply for getting the accounts audited in accordance with the provision of section 44AB. Section 44AB of the Act, stipulates that the accounts are to be got audited by an accountant and furnished in the prescribed manner before the 'specified date'. The 'specified date' under Explanation (ii) to that section has been defined to be the 'due date' for furnishing the return of income under sub- section (1) of section 139. Therefore, the extended 'due date' as per CBDT order dated 9" September, 2016 would also apply for the purpose of section 44AB of the Act.” 7. From the perusal of the aforesaid clarification, we find that the said clarification dated 14/09/2016 also does not support the case of the assessee that the due date for filing the return of income in his case was extended from 30/09/2016 to 17/10/2016. On the contrary, we find that vide aforesaid Gulu Hassanand Raney M.A. no.510/Mum./2023 Page | 6 clarification, the CBDT emphasised that vide order dated 09/09/2016 under section 119 of the Act the due date for filing the income tax return by the taxpayers whose accounts are audited under section 44AB of the Act was extended from 30/09/2016 to 17/10/2016. This aspect is further clear from the second paragraph of the aforesaid clarification, as the CBDT also specifically extended the due date for auditing of accounts by an accountant and furnishing the same as per section 44AB of the Act to 17/10/2016. Therefore, we are of the considered view that the aforesaid clarification dated 14/09/2016 further supports the conclusion of the coordinate bench of the Tribunal vide order dated 21/03/2023 that the due date of filing of income tax return for the assessee for the assessment year 2016-17 is 30/09/2016 and not 17/10/2016. Accordingly, in view of our aforesaid findings, we find no merits in the present Miscellaneous Application filed by the assessee and hence the same is dismissed. 8. In the result, the Miscellaneous Application by the assessee is dismissed. Order pronounced in the open Court on 04/12/2023 Sd/- AMARJIT SINGH ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 04/12/2023 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai