PROCEDURE FOR FILING OF DELAYED INCOME RETURN

WITH THE PERMISSION OF THE COMMISSIONER BY OBTAINING CONDONATION FOR DELAYED RETURN FILING

 

R Balakrishnan (C.S.)

 

1. Introduction

 

Filing of income tax return is compulsory if the taxable income exceeds the basic exemption limit even if the tax payable is nil or even refundable by the tax department as per the Income Tax Act of 1961 and the rules framed there under by the individual tax payers and filing of income tax return is mandatory for the companies and partnership firms irrespective of any income.

 

2. Any individual could file the Income Tax Return

 

The Income Tax Act 1961 provides that any other person who is desirous of  filing the income return even in cases if his / her income is below the maximum amount not chargeable to income tax could also file the income tax return with “NIL” refund / “NIL” tax.

 

3. Time limit for filing the income tax return

 

By and large, in each year, the individual assesses are required file their returns by 30th of June and any further extension granted by the income tax department. For the last two to three years, the tax department has been extending the income tax return date by 31st of July of each year for individuals. While in respect of companies, for those whose accounts are to be audited, working partner of a firm etc., the due date of filing the return is 30th September of each year which is pursuant to section 139(1) Expl of the Income Tax Act of 1961.

 

4 Revised Return

 

If any mistake / defect / omission in the original return are noticed by the assessee subsequently, after filing his / her income tax return, then he / she could file a revised return before the assessment has been made or within one year whichever is earlier from the end of the relevant assessment year.

 

A revised return can not be filed in a case where the original return has been filed late i.e. after the due date. As per the provision in section 148 of the Income Tax Act, the revised return in such a case could be accepted and regularized by the assessing officer.

 

In case the assessing officer of the income tax department points out certain defects in the return, then the assessee needs to file his / her revised return within 15 days from the receipt of informed received from the tax department.

 

5. Penalty for non-filing of income tax return

 

As per the section 271F, if a person who is required to file income tax return under section 139(1) of the Income Tax Act 1961, fails to file the income tax return before the end of the relevant assessment year, a penalty of Rs. 5000/- shall be leviable.

 

Further, as per section 276CC, if any person willfully fails to file his / her income tax return under section 139(1) or under section 142(1) or 148 and the amount of tax payable by him / her (after deducting advance tax and TDS) exceeds Rs. 3,000/-, he/she shall be punishable with minimum imprisonment of 3 months and maximum 7 years and with fine. 

 

6. Can a delayed return be filed after a lapse a year or more?

 

The answer to this question is “YES” subject to the discretionary power of the Commissioner of Income Tax  under section 119 (2) of the Income Tax Act of 1961. The Commissioner of Income Tax could grant permission condoning the delay of filing the return and allow the refunds arising out of such return, strictly based on the merit of each case.

 

It may also be noted that if an assessee would like to file his return, without involving any refund – such returns could be filed for the purpose of record and NO RETURN COULD BE FILED INVOLVING REFFUND, without obtaining the permission from the Commissioner of Income Tax for condonation of delay

 

7. The procedure of obtaining the permission from the Commissioner

 

First and foremost thing is that the assessee should have a good tract record of filing his return in the past years.

 

Secondly, in a particular year, the assess should have a valid reason justifying for non-filing of the return / circumstances which were prevalent beyond his control, preventing him to file his return.

 

With the above, if the assessee approaches the Commissioner of Income Tax, then the Commissioner would consider granting approval for filing the return with refund and condone the delay which is purely based on circumstances and merit of the application submitted to the commissioner.

 

Posting an individual especially from the Armed Forces Services to a remote filed area where the communications are absolutely difficult and the concerned assesse was in the filed throughout, could be one of the valid reason. Similarly, circumstances arising out of medical ground either for self or to his / her family members where he / she would not have devoted time for other work could be an acceptable reason for condoning the delay. 

 

The Commissioner would strictly go by the case to case basis depending upon the circumstances and merit of the application and the permission for filing the return with refund could be granted. If there is no justifiable reasoning, then the Commissioner may not grant the permission for filing the delayed return. 

 

7. 1 Application to be made to the Commissioner

 

The delayed return could be prepared – either it could be filed at the office of the assessing officer – acknowledgement obtained and the copy of the same is attached with the application in Form-30 under rule 41 along with a covering letter which could be forwarded to the Commissioner or, the application form – 30 along with the return and a covering letter is submitted.

 

It is suggested that the return be submitted to the assessing officer, photocopy attached to the Form-30 and the covering letter and forwarded to the Commissioner for required permission / condoning the delay in filing the return.

 

7.2. Illustrated letter and application in Form-30 (under Rule 41)

 

The forwarding letter could be addressed to the Commissioner briefly explaining the reasons for the delayed submission of the income tax return substantiated by the documentary proof for such delay.

 

Illustrative specimen of the forwarding letter

 

To

 

Commissioner of Income Tax

The relevant address of the Tax department

 

PAN Number: ----------------------------Employment number in case of Govt. officials

 

Dear Sir

 

I have submitted my income tax return(s)  for assessment year (s)……………… vide acknowledgement number ………dated………at ………………………(copy enclosed with this)

 

Due to exigencies of service and being deployed in filed -----or any other reason whatever applicable in the assessee’s case ----------I was unable to file my return in time.

 

You are kindly requested to waive the time limit and accord sanction to assess my income tax return (s) so that I am able to get the income tax refund of Rs………… excess paid income tax.

 

Further, I have been filing my income tax return regularly and the same could be verified from your records.

 

Thanking you

 

Yours faithfully

 

Name of the assessee.

 

Encl: (i)form-30 and

         (ii) relevant year(s) return photocopy

 

 

7. 2 Form-30 which has to go along with the letter

 

The form-30 under rule 41 which has to be submitted to the Commissioner – the specimen is as under:-

 

FORM-30

(Rule 41)

(Claim for Refund)

 

 

I…………………………………….of ------------------address------------------------ do hereby state that my total income computed in accordance with the provision of the Income Tax Act 1961, during the year ending on------------being the previous year for the assessment year commencing on the 1 day of April…………….. amounted to Rs……………. and that the total income tax chargeable in respect of such total income is Rs………………. and that the total income tax paid or treated as paid under section 199 is Rs……………..

 

I therefore request for a refund of Rs………………………….

 

Signature of the assessee

 

I hereby declare that I was resident / non-resident but not ordinarily resident / non-resident during the previous year relevant to the assessment year to which claim relates and that what is stated in the application is correct.

 

 

Date: -                                                                             Signature of the assessee

 

Notes:-

 

1                    The claim should be accompanied by a return of income in the prescribed form unless the claimant has already made such a return to the income tax officer.

2                    Persons who are non-residents and whose total income is made up only of income taxed at source should make the claim for refund to the Income Tax Officer, Non-Resident Refund Circle, Bombay

3                    Where any part of the total income consists of dividends or any other income for which tax has been deducted vide the provisions of sections 192 to 194, section 194A and section 195, the claim should be accompanied by the certificates prescribed under section 203.

 

8. The processing of the application in form 30 submitted

 

Upon submission of the application for condonation of delay in form-30 giving the reasoning, if the Commissioner is satisfied, then he would straightway grant the permission to assess the delayed return submitted by the assessee and issue the orders accordingly to the concerned income tax officer with a copy to the assessee. 

 

In case the Commissioner would like to verify and confirm the circumstances and consider the merit of the case, he might call for further details such as posting profile of the concerned officer especially in the armed forces service for filed area posting, concerned medical certificates etc., in case of medical reasons and such other relevant required documents. Once the Commissioner gets satisfied himself, then he would grant the permission and pass the order.

 

The last thing which could happen is that the Commissioner may not grant the permission if the circumstances do not justify the delay and he would reject the application and communicate the same to the assessee.

 

9. Assessment of delayed return submitted

 

Once the concerned income tax officer receives the letter from the Commissioner condoning the delay, then the income tax officer would assess the delayed return submitted and refund the excess amount paid by the asseessee. Till such time the letter from Commissioner is received, the delayed return submitted by the assessee would be kept pending.

 

10. Conclusion

 

Though all individuals would like to abide by the law and be compliant with the rules and regulations and adhere the time frame fixed by the regulator, at times, due to certain exigencies, one is helpless in adhering the time frame and unable to file the income tax return. In such cases, the regulator has provided a mechanism to avail the befit of the refund/ rebate due to him by seeking the permission through the Commissioner under his discretionary powers.

 

While one has to be complaint at all the times, at the time of exigencies, the law also considers it sympathetically and provides the mechanism by which the law abiding citizen does not lose out his dues.  Exception could be only on merit and exceptional basis and one should not take undue advantage of this mechanism and try to make the exc.