Case Law Details

Case Name : Jitendra Kumar Nahata Vs JCIT (ITAT Bangalore)
Appeal Number : ITA No.41/Bang/2022
Date of Judgement/Order : 13/05/2022
Related Assessment Year : 2017-18

Jitendra Kumar Nahata Vs JCIT (ITAT Bangalore)

Facts- The assessee filed its ROI on 30/12/2017 declaring a gross total income of Rs.1,43,39,512/- and claimed deduction under Chapter IVA u/s 80IA for Rs.36,82,815/- including the deduction u/s 80IA for Rs.35,02,815/-. Later on, the assessee filed revised ROI on 25/6/2018 declaring same income which was processed U/s 143(1)(a) of the Income Tax ( I T ) Act. 1961 by the CPC, Bangalore on 18/12/2019 and denying deduction claimed u/s 80IA.

Against the processing of income tax return u/s 143(1)(a) on 18.12.2019, the assessee filed rectification petition u/s 154 of the IT Act before the CPC on 25.12.2019, which was not accepted and the order was passed on 9/1/2020 by rejecting the claim of the assessee of deduction u/s 80IA. Against the order of the sec. 154 of the Income-tax Act, the assessee filed appeal before the CIT(A) and CIT(A) did not allow the claim of the deduction under u/s 80IA by holding that Form No.10CCB was not filed in time as per the provision of sec. 139(1).

Conclusion- The assessee is engaged in power generation and the Accountant has issued Form No.10CB on 25/6/2018 for the impugned asst. year. Further, on perusal of the Form No.10CB in which the Accountant has clearly shown that the claim of the assessee u/s 80IA is of Rs.35,02,815/- and the assessee has also claimed in the original return u/s 139(1) of the Act for the same amount. The filing of Form No.10CCB is procedural aspect. A similar issue has been dealt by the coordinate bench of the Hyderabad Bench in the case of Delhi MSW Solutions Ltd.

Held that the assessee had filed its return of income before the due date, as specified u/s 139(1) of the Act for the relevant asst. year and in the return of income he has also claimed deduction. The tax Auditor has also certified the deduction claimed as per Sl.No.33 of the Form No.3CD therefore, only for want of not filing Form NO.10CCB within the due date the claim of deduction should not be disallowed, to which, the assessee had filed revised return within the due date. In view of this, the assessee is eligible to claim deduction u/s 80IA. Whenever the assessee received Form No.10CCB, he revised his return of income.

FULL TEXT OF THE ORDER OF ITAT BANGALORE

This assessee’s appeal for AY.2017-18 arises from the NFAC order dated 17-11-2021 passed in appeal No. ITBA/NFAC/S/250/2021-22/1037007246(1), in proceedings u/s.154 of the Income Tax Act, 1961 [in short, ‘the Act’].

2. The brief facts of the case are that the assessee filed its return of income on 30/12/2017 declaring a gross total income of Rs.1,43,39,512/- and claimed deduction under Chapter IVA u/s 80IA for Rs.36,82,815/- including the deduction u/s 80IA for Rs.35,02,815/-. Later on, the assessee filed revised return of income on 25/6/2018 declaring same income which was processed U/s 143(1)(a) of the Income Tax ( I T ) Act. 1961 by the CPC, Bangalore on 18/12/2019 and denying deduction claimed u/s 80IA by observing as under:-

(ii) Incorrect Claim u/s 143(1)(a)(ii)
SI.N

o

Schedule Error Description Amount in Income
Tax Return
Amount as
computed
Variance
1 Schedule VIA In Schedule VI-A, under Part -C deduction in respect of certain incomes, in SI.No.2.o deduction is claimed under section 801 A without filling the corresponding schedule 3502815 0 3502815

3. Against the processing of income tax return u/s 143(1)(a) on 18.12.2019, the assessee filed rectification petition u/s 154 of the IT Act before the CPC on 25.12.2019,which was not accepted and the order was passed on 9/1/2020 by rejecting the claim of the assessee of deduction u/s 80IA . Against the order of the sec. 154 of the Income-tax Act, the assessee filed appeal before the CIT(A) and CIT(A) did not allow the claim of the deduction under u/s 80IA by holding that Form No.10CCB was not filed in time as per the provision of sec. 139(1) and also by relying on the various case laws he dismissed the appeal of the assessee.

4. The CIT(A) observed that

“4.6 The provision of Sec.80AC clearly states that no deduction u/s.801A shall be allowed to the assessee unless he furnishes the return of income for such assessment year on or before the due date specified under sub-section (1) of sec. 139. There is no ambiguity in the wordings of the section. It is an undisputed fact that the appellant has not made its claim of deduction u/s.801A in the original return filed by him before the due date allowed u/s.139(1). The deduction u/s.801A was claimed in the revised return filed on 25.06.2018 which is much beyond the due date specified in sec. 139(1) of the Income-tax Act because for the A.Y.2017-18, the due date for filing return uls.139(1) was 07.11.2017. Then, one of the requirement of claiming deduction u/s.801A is that report of an Accountant in Form No.10CCB is to be submitted by the assessee on or before the due date of filing return as specified in sec. 139(1). Since, the claim of deduction was neither made in the original return filed nor was the Audit Report in Form No.10CCB filed along with it,prima-facie appellant was not eligible for deduction u/s.801A. It has been held by Hon’ble Calcutta High Court in the case of Suolificio linea Italia Pvt Ltd Vs.JCIT 407 ITR 16 (Cal) [2018] that where the assessee failed to file return by the prescribed due date specified uls.139(1), its claim for deduction u/s.801B could not be allowed even though the return has been filed at a later stage. Similar view has been expressed by the ITAT Mumbai in the case of DCIT v. Siroya Developers 78 taxmann.com 19 [2017]. It has been held in many decisions by the High Courts and the Supreme Court that meaning arising out of plain words should be understood in the interpretation of statute On this very issue, the Hon’ble Supreme Court in the case of Prakash Nath Khanna V.CIT 266 ITR 1 (SC) has held that the expression “In Due Time” means the time limit uls.139(1).

4.7 The provisions of Sec.154 can be invoked only when there is a mistake apparent form record. It has been held by the Hon’ble Kerala High Court in the case of KKJ Foundation VS. ADIT (Exemption), Kochi 373 ITR 311 (2015) that it is clear that the power under Sec.154 can be invoked only to correct an error and not to disturb the concluded finding. It has also been held by the Hon’ble SC in the case of T.S Balram ITO Vs.Volkart Bros 82 ITR 50[1971] that a mistake apparent from the record must be an obvious and patent mistake and not something which can be established by long drawn process of reasoning. After considering the facts of the case and the position of law, it is held that AO has rightly disallowed the claim of deduction u/s 80IA. The grounds of appeal No.1 to 8 are accordingly dismissed.”

5. Against the order of the CIT(A), the assessee is before us.

6. The ARs of the assessee reiterated the submission made before the CIT(A) and further submitted that on the due date of filing of return of income, From No.10CCB cannot be filed but later on, the assessee filed requisite form and revised return of income after obtaining Form No.10CCB. The initial assessment year was 2009-10 for claiming deduction u/s 80IA and the assessee was continuously enjoying the deduction of u/s 80IA merely for non filing of Form No.10CCB within the due date does not bar to claim for deduction by the assessee. He relied on the judgment of the Hyderabad Bench in the case of Delhi MSW Solutions Ltd., in ITA No.888/Hyd/2019 and he also filed paper book containing page No.34 and in addition to the above case laws, he also relied on the following judgments:-

(i) CIT Vs. ACE Multitaxes Systems Pvt. Ltd.,

(ii) CIT Vs. Lakhwinder Singh

Section 80IA deduction cannot be disallowed for non-filing of Form No. 10CCB within due date

7. The ld.DR relied on the order of the CIT(A) and he submitted that the assessee did not file Form No.10CCB along with the original return of income. The provision of sec.80 A is very clear that for claiming deduction Under chapter VI-A in certain cases, the return should be filed within the due date as per sec. 139(1), whereas the assessee did not file Form No.10CCB and later on, he filed revised return of income . Therefore, the authorities has rightly denied the claim of the assessee. Even on the merits of the case, the issue has not been examined .

8. The sole substantive ground taken by the assessee is that denial of claim u/s 80IA for want of sec.10CCB. After hearing both the sides and perused the entire materials available on record, The assessee filed his return of income u/s 139(1) within the due time along with claiming the deduction u/s 80IA but Form No. 10CCB was not filed , later on he filed revised return of income within the due date and submitted Form No. 10CCB .

9. On observing the Form No.10CCB issued by the Accountant, the initial asst. year is 2009-10, whereas the assessee is engaged in power generation and the Accountant has issued Form No.10CCB on 25/6/2018 for the impugned asst. year. Further, on perusal of the Form No.10CB in which the Accountant has clearly shown that the claim of the assessee u/s 80IA is of Rs.35,02,815/- and the assessee has also claimed in the original return u/s 139(1) of the Act for the same amount. The filing of Form No.10CCB is procedural aspect. A similar issue has been dealt by the coordinate bench of the Hyderabad Bench in the case of Delhi MSW Solutions Ltd., (Supra), which is extracted below:-

3. Both the ld.AR’s take us to the CIT(A)’s detailed discussion holding that the assessee is entitled for deduction u/s 80IA in issue reading as under:-

2. 1. Both the learned representatives take us to the CIT(A)’s detailed discussion holding the assessee is entitled for section 80 IA deduction in issue reading as under:

“6. Considering the submissions made by the appellant in connection with the delay in filing of appeal, the delay is condoned and the appeal is decided on the merits as follows.

The appellant has filed an appeal on account of disallowance u/s 80 IA while processing u/s. 143(1) of the Income Tax Act, 1961 by the AO.

The appellant has filed a return for A. Y. 2016-17 on 14.10.2016 which was within the due date of the filing of the return. The appellant had declared an income of Rs. 5,43,660/- after claiming deduction u/s. 801A of Rs. 19,02,51,433/ – and further offered income u/s 11 5JB at Rs. 5,34,33,460/-.

The appellant further filed a revised return on 28.12.2016 declaring an income of Rs. 5,45,170/- after revising the deduction u/ s. 801A to Rs. 19,18,68,986/- u/s. 801A of the Income Tax Act and income u/s 115JB at Rs. ,5,09,10,210/-

The revised return was processed u/s 143(1) on 20.08.2017 which resulted in the disallowance u/s 801A(4) of Rs. 19,18,68,986/-, thus resulting in the income of Rs. 19,24,14,160/- (after rounding of).

The appellant filed an application u/ s. 154 which was rejected and further a grievance petition was filed on 29.01.2018 in which it was stated to the appellant that the return has been filed after the due date of filing of return.

For such an action, the appellant has stated that the adjustment has been prescribed from only A. Y. 2017-18 and therefore could not have been done for the present year, this contention of the appellant is rejected accordingly as the adjustment are not prescribed as per law and therefore to presume that an adjustment could have been done only in A. Y. 2017-18 is incorrect presumption and is rejected accordingly.

The appellant noted that as the revised return has been processed and the original return was on time, therefore the appellant was eligible for deduction u/ s. 80 IA in view of various judicial rulings with regard to 80AC, which places the clauses for the denial of deduction, if the returns are not filed within the due date.

The appellant further filed a grievance petition on 09.04.2018 by raising this contention as brought out in the above paragraph, to which the communication was received that the Form No. 10CCC/10CCB was not filed. The appellant has contended that this action u/s 143(1) is illegal and therefore the addition made u/s 143(1) should be deleted accordingly.

There are two issues which emerge’ out of the whole discussion, the first issue is regarding the eligibility of the deduction u/s. 80 IA based on a return which has been filed after the filing of original return and the filing of Form 10CCB.

The provisions of section 80A(5) and 80AC are brought out as under:

BOA(5), ‘Where the assessee fails to make a claim in his return of income for any deduction under section l0A or section 1 OAA or section 1 OB or section 1 OBA or under any provision of this Chapter under the heading “C. -Deductions in respect of certain incomes”, no deduction shall be allowed to him there under.]” “80AC. Deduction not to be allowed unless return furnished.-Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 St day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-LA or section 80-lAB or section 80-lB or Section 80-IC, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139.”

A reading of the both sections 80A(5) and 80AC, it emerges that to make a claim u/s 801A, the assessee is simply required to file the return of income u/s 139(1) and the claim can be made in the revised return of income also i.e. there is no bar for making the claim even in the return of income filed u/s 139 (5) of the IT Act.

The identical issue came up before the Hon’ble ITAT Kolkata in the case of DCIT Vs Mackintosh Burn Ltd, Kolkata, The said assessee filed its return of income on 29.11.2006, u/s 139(1) of the ITAct declaring taxable income at Rs. 15.27 Crores, subsequently, the assessee filed revised return u/ s 139(5) claiming the deduction u/ s 801A at Rs. 9.44 Crores. The AO disallowed the claim stating that there is no claim in the return filed u/ s 139( 1) as CA’s certificate in Form No.10CCB was not obtained on the date when the original return is filed. The CIT(A) allowed the claim and the Department preferred an appeal before the Hon’ble ITAT Kolkata. The Hon’ble ITAT in their order DCIT Vs Mackintosh Burn Ltd, Kolkata, in ITA No. 7901Kol/2014, dt: 15.03.2017, after considering the decisions of other judicial bodies dismissed the appeal of the department. The relevant part of the judgment is reproduced hereunder:

“We have heard rival submissions and gone through facts and circumstances of the case. The facts stated hereinabove remained undisputed and hence, the same are not reiterated for the sake of brevity. The analysis to the impugned issue by the Ld. CIT(A) and the various provisions of the Act relating to the impugned issue together with the various case laws relied on by the Ld. AR are not reiterated herein for the sake of brevity.

We found it pertinent to analyse the applicability of the Special bench decision of the Rajkot Tribunal in the case of Saffire Garments Vs. ITO reported in (2012)28 taxman.com 27 (Rajkot S.B) dated 30.11.2012 to the facts of the instant case. We find that the Hon’ble Special bench observed that the proviso to section 1 OA(1A) of the Act states that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sec. 139(1) of Act and accordingly, it was held that the above proviso is mandatory and not directory. The Hon’ble Special Bench distinguished catena of cases relied on by the assessee and held that those decisions were in different context, viz., filing of audit report, form No. 10 CCB etc. and hence, were not applicable to the assessee. While distinguishing the cases, the Hon’ble Special Bench observed that in the instant case the issue was filing of return itself and not filing of documents along with the return.

In the instant case before us, the assessee had filed the original return of income on 30.12.2017 which was before the due date specified u/s. 139(1) of the Act i.e………………………

Thereafter, the assessee had filed revised return on 25.06.2018 wherein it claimed deduction u/s. 801A of the Act. Since the assessee had filed its return of income before the due date specified u/s. 139(1) of the Act for the relevant year, the question of denying the benefit u/s. 801A of the Act does not arise. Hence, the decision of the Hon’ble Special Bench cannot be made applicable to the facts of the instant case before us. On the contrary, we find that the said decision is to be interpreted in favour of the assessee since the assessee had filed its return before the due date and as such, is eligible for deduction. It is not the case that the assessee before the Hon’ble Special bench had filed its original return before the due date of filing the return for the relevant year and claimed deduction u/ s. 1OA of the Act in its revised return. The case before the Hon’ble Special Bench was that the assessee had filed the return itself after the due date of filing the return and hence, the Hon’ble Special bench decided the issue against the assessee, which is not the case of the assessee before us. We find that the Ld. CIT(A) had made the very same observation after interpreting the section 80AC of the Act [similar to proviso to sec.10A(1A) i.e, claim of section 801A, shall be allowed if return is furnished before the due date of filing the return and held that the assessee is squarely entitled for deduction u/s 801A of the Act as all the conditions therein were duly fulfilled by the assessee. The Ld. DR did not refute any of the findings of the Ld. CIT(A) by producing any cogent material or contrary evidence and the submissions made by the Ld. AR before us. In view of our aforesaid acts and findings and respectfully following the Judicial precedents relied upon hereinabove, We do not find any infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Appeal of revenue is dismissed. In the result, appeal of revenue is dismissed.

In the above case, the assessee was allowed deduction u/s. 80 IA merely on the fact that the return was filed within the due date and in spite of the fact that the claim u/s. 801A was made for the first time in the revised return. In the instant case, the appellant had claimed the deduction u/s 801A in the original return and only revised it subsequently.

The assessee did not file the Form No.10CCB during the course of filing the original return but filed it subsequently in the revised return.

Therefore, the case of the appellant is much better than of the issue discussed above, wherein the claim was made for the first time in the revised return and therefore in that case 1OCCB obviously was filed for the first time in the revised return.

Therefore, in the present case only the claim was revised regarding deduction u/s 801A in the revised return and Form No. 10CCB was filed for the first time in the revised return.

Thus, the case of the appellant is a sub set of the case discussed above, wherein the deduction u/s. 801A was allowed.

The above being factual position of law would not need any interpretation and therefore the claim u/s. 801A cannot be disallowed while processing u/s 143(1) of the Income Tax Act, 1961.

In view of the above, the AO is directed to allow the deduction u/s. 801A as claimed.

Therefore, the ground no. 2 is allowed accordingly, and as substantive relief has been granted to the appellant, the other grounds no. 3, 4, 5 and 6 become academic for adjudication and hence am adjudicated.

2.2. Smt. Sunaina Bhatia, C.A vehemently contended during the course of hearing that the CIT(A) has erred in law and on facts in treating assessee as eligible for sec. 80 IA relief despite the fact that it had not filed Form 10CCB along with the original return.

2.3. Learned authorised representative on the other hand drew our attention to the clinching facts inter alia that the assessee had very well raised its sec. 80 IA deduction claim with original return filed u/s 139(1) followed by its revised return along with form 10CCB which was processed u/s 143(1) of the Act disallowing the above relief. This clinching fact has gone unrebutted from department side. Coupled with this, we also wish to reiterate here that sec.80 IA r.w.s. 80 IA (7) expressly provides for the impugned relief. We therefore quote hon’ble apex court’s landmark decision in IKV Pillai vs. CIT (1967) 63 ITR 411 (SC) to express our complete agreement with the CIT(A)’s detailed discussion treating the assessee eligible for the impugned relief. Asseessee’s sole substantive grievance to this effect allowed for statistical purposes therefore.

The assessee’s appeal is allowed for statistical purpose.”

3. Both the ld.AR’s take us to the CIT(A)’s detailed discussion holding that the assessee is entitled for deduction u/s 80IA in issue reading as under:-

2. 1. Both the learned representatives take us to the CIT(A)’s detailed discussion holding the assessee is entitled for section 80 IA deduction in issue reading as under:

“6. Considering the submissions made by the appellant in connection with the delay in filing of appeal, the delay is condoned and the appeal is decided on the merits as follows.

The appellant has filed an appeal on account of disallowance u/s 80 IA while processing u/s. 143(1) of the Income Tax Act, 1961 by the AO.

The appellant has filed a return for A. Y. 2016-17 on 14.10.2016 which was within the due date of the filing of the return. The appellant had declared an income of Rs. 5,43,660/- after claiming deduction u/s. 801A of Rs. 19,02,51,433/ – and further offered income u/s 11 5JB at Rs. 5,34,33,460/-.

The appellant further filed a revised return on 28.12.2016 declaring an income of Rs. 5,45,170/- after revising the deduction u/ s. 801A to Rs. 19,18,68,986/- u/s. 801A of the Income Tax Act and income u/s 115JB at Rs. ,5,09,10,210/-

The revised return was processed u/s 143(1) on 20.08.2017 which resulted in the disallowance u/s 801A(4) of Rs. 19,18,68,986/-, thus resulting in the income of Rs. 19,24,14,160/- (after rounding of).

The appellant filed an application u/ s. 154 which was rejected and further a grievance petition was filed on 29.01.2018 in which it was stated to the appellant that the return has been filed after the due date of filing of return.

For such an action, the appellant has stated that the adjustment has been prescribed from only A. Y. 2017-18 and therefore could not have been done for the present year, this contention of the appellant is rejected accordingly as the adjustment are not prescribed as per law and therefore to presume that an adjustment could have been done only in A. Y. 2017-18 is incorrect presumption and is rejected accordingly.

The appellant noted that as the revised return has been processed and the original return was on time, therefore the appellant was eligible for deduction u/ s. 80 IA in view of various judicial rulings with regard to 80AC, which places the clauses for the denial of deduction, if the returns are not filed within the due date.

The appellant further filed a grievance petition on 09.04.2018 by raising this contention as brought out in the above paragraph, to which the communication was received that the Form No. 10CCC/10CCB was not filed. The appellant has contended that this action u/s 143(1) is illegal and therefore the addition made u/s 143(1) should be deleted accordingly.

There are two issues which emerge’ out of the whole discussion, the first issue is regarding the eligibility of the deduction u/s. 80 IA based on a return which has been filed after the filing of original return and the filing of Form 10CCB.

The provisions of section 80A(5) and 80AC are brought out as under:

BOA(5), ‘Where the assessee fails to make a claim in his return of income for any deduction under section l0A or section 1 OAA or section 1 OB or section 1 OBA or under any provision of this Chapter under the heading “C. -Deductions in respect of certain incomes”, no deduction shall be allowed to him there under.]” “80AC. Deduction not to be allowed unless return furnished.-Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 St day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-LA or section 80-lAB or section 80-lB or Section 80-IC, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139.”

A reading of the both sections 80A(5) and 80AC, it emerges that to make a claim u/s 801A, the assessee is simply required to file the return of income u/s 139(1) and the claim can be made in the revised return of income also i.e. there is no bar for making the claim even in the return of income filed u/s 139 (5) of the IT Act.

The identical issue came up before the Hon’ble ITAT Kolkata in the case of DCIT Vs Mackintosh Burn Ltd, Kolkata, The said assessee filed its return of income on 29.11.2006, u/s 139(1) of the ITAct declaring taxable income at Rs. 15.27 Crores, subsequently, the assessee filed revised return u/ s 139(5) claiming the deduction u/ s 801A at Rs. 9.44 Crores. The AO disallowed the claim stating that there is no claim in the return filed u/ s 139( 1) as CA’s certificate in Form No.1 OCCB was not obtained on the date when the original return is filed. The CIT(A) allowed the claim and the Department preferred an appeal before the Hon’ble ITAT Kolkata. The Hon’ble ITAT in their order DCIT Vs Mackintosh Burn Ltd, Kolkata, in ITA No. 7901Kol/2014, dt: 15.03.2017, after considering the decisions of other judicial bodies dismissed the appeal of the department. The relevant part of the judgment is reproduced hereunder:

“We have heard rival submissions and gone through facts and circumstances of the case. The facts stated hereinabove remained undisputed and hence, the same are not reiterated for the sake of brevity. The analysis to the impugned issue by the Ld. CIT(A) and the various provisions of the Act relating to the impugned issue together with the various case laws relied on by the Ld. AR are not reiterated herein for the sake of brevity.

We found it pertinent to analyse the applicability of the Special bench decision of the Rajkot Tribunal in the case of Saffire Garments Vs. ITO reported in (2012)28 taxman.com 27 (Rajkot S.B) dated 30.11.2012 to the facts of the instant case. We find that the Hon’ble Special bench observed that the proviso to section 1 OA(1A) of the Act states that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sec. 139(1) of Act and accordingly, it was held that the above proviso is mandatory and not directory. The Hon’ble Special Bench distinguished catena of cases relied on by the assessee and held that those decisions were in different context, viz., filing of audit report, form No. 10 CCB etc. and hence, were not applicable to the assessee. While distinguishing the cases, the Hon’ble Special Bench observed that in the instant case the issue was filing of return itself and not filing of documents along with the return.

In the instant case before us, the assessee had filed the original return of income on 30.12.2017 which was before the due date specified u/s. 139(1) of the Act i.e………………………

Thereafter, the assessee had filed revised return on 25.06.2018 wherein it claimed deduction u/s. 801A of the Act. Since the assessee had filed its return of income before the due date specified u/s. 139(1) of the Act for the relevant year, the question of denying the benefit u/s. 801A of the Act does not arise. Hence, the decision of the Hon’ble Special Bench cannot be made applicable to the facts of the instant case before us. On the contrary, we find that the said decision is to be interpreted in favour of the assessee since the assessee had filed its return before the due date and as such, is eligible for deduction. It is not the case that the assessee before the Hon’ble Special bench had filed its original return before the due date of filing the return for the relevant year and claimed deduction u/ s. 1OA of the Act in its revised return. The case before the Hon’ble Special Bench was that the assessee had filed the return itself after the due date of filing the return and hence, the Hon’ble Special bench decided the issue against the assessee, which is not the case of the assessee before us. We find that the Ld. CIT(A) had made the very same observation after interpreting the section 80AC of the Act [similar to proviso to sec. 10 A(1A) i,e, claim of section 801A, shall be allowed if return is furnished before the due date offihing the return and held that the assessee is squarely entitled for deduction u/s 801A of the Act as all the conditions therein were duly fulfilled by the assessee. The Ld. DR did not refute any of the findings of the Ld. CIT(A) by producing any cogent material or contrary evidence and the submissions made by the Ld. AR before us. In view of our aforesaid acts and findings and respectfully following the Judicial precedents relied upon hereinabove, We do not find any infirmity in the order of the Ld. CIT(A) and the same is hereby upheld. Appeal of revenue is dismissed. In the result, appeal of revenue is dismissed.

In the above case, the assessee was allowed deduction u/s. 80 IA merely on the fact that the return was filed within the due date and in spite of the fact that the claim u/s. 801A was made for the first time in the revised return. In the instant case, the appellant had claimed the deduction u/s 801A in the original return and only revised it subsequently.

The assessee did not file the Form No.10CCB during the course of filing the original return but filed it subsequently in the revised return.

Therefore, the case of the appellant is much better than of the issue discussed above, wherein the claim was made for the first time in the revised return and therefore in that case 1OCCB obviously was filed for the first time in the revised return.

Therefore, in the present case only the claim was revised regarding deduction u/s 801A in the revised return and Form No. 10CCB was filed for the first time in the revised return.

Thus, the case of the appellant is a sub set of the case discussed above, wherein the deduction u/s. 801A was allowed.

The above being factual position of law would not need any interpretation and therefore the claim u/s. 801A cannot be disallowed while processing u/s 143(1) of the Income Tax Act, 1961.

In view of the above, the AO is directed to allow the deduction u/s. 801A as claimed.

Therefore, the ground no. 2 is allowed accordingly, and as substantive relief has been granted to the appellant, the other grounds no. 3, 4, 5 and 6 become academic for adjudication and hence am adjudicated.

2.2. Smt. Sunaina Bhatia, C.A vehemently contended during the course of hearing that the CIT(A) has erred in law and on facts in treating assessee as eligible for sec. 80 IA relief despite the fact that it had not filed Form 10CCB along with the original return.

2.3. Learned authorised representative on the other hand drew our attention to the clinching facts inter alia that the assessee had very well raised its sec. 80 IA deduction claim with original return filed u/s 139(1) followed by its revised return along with form 10CCB which was processed u/s 143(1) of the Act disallowing the above relief. This clinching fact has gone unrebutted from department side. Coupled with this, we also wish to reiterate here that sec.80 IA r.w.s. 80 IA (7) expressly provides for the impugned relief. We therefore quote hon’ble apex court’s landmark decision in IKV Pillai vs. CIT (1967) 63 ITR 411 (SC) to express our complete agreement with the CIT(A)’s detailed discussion treating the assessee eligible for the impugned relief. Asseessee’s sole substantive grievance to this effect allowed for statistical purposes therefore. The assessee’s appeal is allowed for statistical purpose.”

10. Considering the above judgment, since the assessee had filed its return of income before the due date, as specified u/s 139(1) of the Act for the relevant asst. year and in the return of income he has also claimed deduction. The tax Auditor has also certified the deduction claimed as per Sl.No.33 of the Form No.3CD therefore, only for want of not filing Form NO.10CCB within the due date the claim of deduction should not be disallowed, to which, the assessee had filed revised return within the due date. In view of this, the assessee is eligible to claim deduction u/s 80IA. Whenever the assessee received Form No.10CCB, he revised his return of income.

11. We further observed from the order of the lower authorities that the quantum of deductions has not been examined, therefore, for determination of correct amount of deduction it was asked to submit the financial statement for the verification of the quantum of the eligible amount of deduction u/s 80IA to which the assessee has submitted. The profit and loss account is as under:-

RESEARCH DEVELOPMENT AND MANUFACTURING CORPORATION

MANUFACTURING & PROFIT AND LOSS NC FOR THE YEAR ENDED 31ST MARCH 2017
To Opening Stock 0 By Sales
To Manincery maintenance 3.469.851 Wind electricity charges 7,165,946
To Consultancy 2.300 By Closing Stock 0
To Fire Insurance 32.637
To Interest on Bascom Bill discount 158.343
TO Depreciation 0
To Net Profit 3,502,815
7,165,946 7,165,946

12. On observation of the above trading profit and loss account, we notice that there is no any amount debited into the profit and loss account towards administrative expenditure whereas the administrative expenditures are necessary to keep and maintain for smooth running of the business. How and why the assessee has not debited any administrative expenses even no any salary expenditures have been shown in the profit and loss account. Therefore, it would be proper to send back the issue to the file of the AO for determining the actual profit computed in the above trading and profit and loss account without incurring of any expenditures. Needless to say that the reasonable opportunity of being heard to be given to the assessee and the assessee is directed not to seek unnecessary adjournments for eary disposal of the case.

13. In the result, appeal of the assessee is allowed for statistical purposes.

Order pronounced in court on 13th day of May, 2022

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