SAMIR HARISH DIVECHA,MUMBAI V. WARD 42(1)(5), MUMBAI

ITA 4489/MUM/2024

AI Insights

The case revolves around the assessee, Samir Harish Divecha, who appealed against the order of the CIT(A) confirming the action of the Assessing Officer in denying the benefit of the lower tax regime under Section 115BAC due to the late filing of Form 10IE. The assessee argued that the form was filed with the revised return within the permissible time, despite not being filed by the original due date. The Tribunal examined whether the late filing of Form 10IE should disqualify the assessee from the benefits of the alternate tax regime, considering the form's submission with the revised return was within the statutory time limit.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 633333 (ITAT-MUMBAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2023-2024
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LIYA
• Assessee Lawyers: B.B. NEGANDHI
• Keywords: Revised return; FORM 26AS
• Section: 6; 139(5)

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL, ‘H(SMC)‘ BENCH MUMBAI BEFORE: SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI OMKARESHWAR CHIDARA, ACCOUNTANT MEMBER ITA No.4489/Mum/2024 (Assessment Year :2023-24) Samir Harish Divecha 302, New Link View CHS Shimpoli Road Chikuwadi Link Road Borivali West Maharashtra- 400 092 Vs. ITO Ward 42(1)(5) Mumbai PAN/GIR No.AIHPD9798B (Appellant) .. (Respondent) Assessee by Shri B.B. Negandhi Revenue by Shri Liya Date of Hearing 21/03/2025 Date of Pronouncement 09/06/2025 आदेश / O R D E R PER AMIT SHUKLA (J.M): The aforesaid appeal has been filed by the assessee against order dated 05/05/2024 passed by Addl./JCIT(A)-4, Chennai in relation to the adjustment made u/s.143(1) for the A.Y.2023-24. 2. In the grounds of appeal assessee has raised following grounds:- ITA No.4489/Mum/2024 Samir Harish Divecha 2 “1. That the Ld. CIT(A) vide order u/s 250(6) dated 15/05/2024 has erred in confirming the action of the AO in not providing the benefit of lower tax as per section 115BAC due to the fact that form 101E was not filed before the due date of filing of return u/s 139(1). i.e. 31.10.2023 2. That the Ld. CIT(A) vide order u/s 250(6) dated 15/05/2024 has erred in confirming the action of the AO without appreciating that form 10 IE could not be filed before the due date of filing of return u/s 139(1) i.e. 31.10.2023 due to technical glitch. 3. That the order passed u/s 250(6) of the Income Tax Act, is bad in law as the requirement of filing of form 10IE before the due date of filing of return u/s 139(1) is directory in nature arid as such the benefit of lower tax rate cannot be denied. 4. That the order passed u/s 250(6) of the Income Tax Act, is bad in law as since the adoption of lower tax rate as per section 115BAC cannot be brought under the ambit of adjustment u/s 143(1) which covers 'arithmetical error, incorrect claim, disallowance of loss, disallowance of expenditure, disallowance of deduction or addition of income appearing in form 26AS or form 16A”. 3. Ergo the main controversy involve is, whether the assessee is entitled benefit of lower tax /Alternate Tax Regime as per section 115BAC as Form 10 IE could not be filed before the due date of filing of return u/s 139(1) i.e. 31.10.2023, albeit was filed alongwith the revised return of income u/s 139(5) on 30/12/2023. The brief facts qua the issue are that the assessee is an individual deriving income from business and profession and filed his return of income on 30/10/2023 u/s 139(1) declaring income of 19,19,000/-. Before us ld. Counsel has stated that assessee wanted to opt for new lower tax regime without claiming any deduction, but while filing ITR form, he has ITA No.4489/Mum/2024 Samir Harish Divecha 3 not selected opting for new regime u/s 115BAC. But the assessee has not claimed any deduction under chapter VIA even though he has made investment in PPF, paid medical insurance premium, and also repaid housing loan and paid interest on housing loan which is evident from Return of income and statement of Income. He also drew our attention to the return of income and the statement of the income given at page 4 & 8 of the paper book that no deduction was claimed which proves that assessee intended to claim lower tax regimes. Thereafter, the CPC, Bangalore issued intimation u/s. 143(1) accepting the income disclosed in the original return. Since assessee had not filed form 10 IE, the benefit of new regime was not given and also deduction under Chapter VIA was also not given. Thereafter, assessee filed the revised return u/s. 139(5) on 30/12/2023 disclosing the same return of income without claiming any deduction opted for new regime. It is an admitted fact that assessee had not claimed any deduction under Chapter VIA. Thereafter, the CPC issued intimation u/s.143(1) on the revised return on 31/01/2024 and accepted the income disclosed in the revised return of income, however, benefit of tax rate prescribed under new taxation was not given. 4. The First Appellate Authority has dismissed the assessee’s appeal holding that procedure for filing the option for ATR (Alternate Tax Regime) has not been complied with, because, Form 10IE declaring intention to opt for ATR should have been filed on or before the due date of furnishing of return u/s.139(1) as specified u/s.115BAC (5)(i). In the present case, admittedly ITA No.4489/Mum/2024 Samir Harish Divecha 4 the claim for ATR by way of filing of Form 10IE was made only on 30/12/2023 by way of revised return which is beyond the date specified u/s.139(1) and therefore, the action of ld. AO /CPC in denying the option of assessee to be taxed u/s.115BAC is applied. 5. Before us, ld. Counsel for the assessee had submitted that for A.Y.2024-25 assessee has filed the return of income under the new regime which is evident from the copy of ITR and computation of income appearing at page 50 and 53 of the paper book. In that year assessment has been completed by CPC u/s. 143(1) on 24/02/2025 on the income disclosed in the original return accepting the ATR i.e. low tax. He further submitted that submission of Form 10 IE is directory in nature and not mandatory and if assessee has made compliance of filing of Form 10 IE later on but before completion of assessment then benefit cannot be denied. Here in this case assessee has admittedly filed within two months. He also referred to Rule 21AG of the IT Rules which do not specifically provide for disallowing the claim of the assessee for late filing of Form 10IE. He also relied upon various judgments of the Tribunal wherein it has been held that filing of Form 10IE is directory. 6. We have heard both the parties and also perused the relevant finding given in the impugned order. As noted above, assessee has filed his original return of income on 30/10/2023 declaring total income of Rs.19,19,000/- without claiming any deduction under Chapter VIA. It has been stated that assessee intended to ITA No.4489/Mum/2024 Samir Harish Divecha 5 avail low tax regime only and therefore, it had not claimed any deduction under Chapter VIA despite assessee had substantial amount to be claim for deduction under Chapter VIA. Later on, assessee realizing the fact that there was an omission to file Form 10 IE for claiming alternate tax regime, he filed revised return u/s.139(5) within permissible time, i.e., much before three months prior to the end of the relevant assessment year or before the completion of the assessment whichever is earlier. 7. It is a well settled law that if the assessee has filed revised return within the prescribed time, it substitutes the original return and revised return is considered as return of income for the purpose of assessment. The statute permits that assessee can file revised return if he discovers any omission or any wrong statement in the original return of income filed u/s 139(1), then he can revise the return amending the original return and then revised return has to be reckoned as return of income for all purposes. Once the revised return have been filed to cure the defect in the original return, and the same has been accepted by the AO, then assessment has to be made on the revised return because it replaces the original return. Here in this case, the original return was filed within due date which was validly revised u/s. 139(5) within the due date therefore, in the present case; the revised return replaces the original return of income. Now, the assessee has filed Form 10 IE alongwith revised return and therefore, it replaces the original return of income and in consequence the assessee is entitled for claim made in the revised return for alternative tax regime and the conditions ITA No.4489/Mum/2024 Samir Harish Divecha 6 provided in Section 115BAC(5)(1) stands fulfilled. Hence, we hold that assessee is entitled for benefit of low tax regime / ATR in accordance with Section 115BAC. Further, in subsequent assessment year, the assessee’s return of income has been accepted by the CPC under new scheme of taxation u/s.115BAC. Accordingly, we allow the grounds of the assessee and direct the ld. AO to give the benefit of low tax regime u/s.115BAC. We are not going into the issue of whether filing of Form 10IE is directory or mandatory because here in this case, the assessee has filed valid revised of return of income within statuary time limit alongwith which assessee had filed Form 10IE and therefore, it has to be reckoned that the Form 10IE has been filed alongwith return of income. 8. In the result, appeal of the assessee is allowed. Order pronounced on 9th June, 2025. Sd/- (OMKARESHWAR CHIDARA) Sd/- (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated 09/06/2025 KARUNA, sr.ps ITA No.4489/Mum/2024 Samir Harish Divecha 7 Copy of the Order forwarded to : BY ORDER, (Asstt. Registrar) ITAT, Mumbai 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// "