Sree Kailai Spinners P Ltd., Coimbatore V. ITO, Coimbatore

ITA 1226/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5895 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 17-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: S SENDAMARAI KANNAN
• Keywords: Revised return

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . . . , !, # $% BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ./ ITA NO.1226/MDS/2017 ( )( / ASSESSMENT YEAR : 2013-14 M/S SREE KAILAI SPINNERS PVT. LTD., 2/5, VELLAKINAR POST, COIMBATORE 641 029. PAN : AAJCS 5384 H V. THE INCOME TAX OFFICER, CORPORATE WARD 3, COIMBATORE. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI S. SENDAMARAI KANNAN, ADVOCAT E -.+, / 0 / RESPONDENT BY : SHRI N. MADHAVAN, ADDL. CIT 1 / 2# / DATE OF HEARING : 11.10.2017 3 ) / 2# / DATE OF PRONOUNCEMENT : 02.11.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -1, COIMBA TORE, DATED 31.03.2017 AND PERTAINS TO ASSESSMENT YEAR 2013-14. 2 I.T.A. NO.1226/MDS/17 2. SHRI S. SENDAMARAI KANNAN, THE LD.COUNSEL FOR TH E ASSESSEE, SUBMITTED THAT IN THE ORIGINAL RETURN FIL ED BY THE ASSESSEE, THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80-IA OF THE INCOME- TAX ACT, 1961 (IN SHORT 'THE ACT') IN RESPECT OF IN COME GENERATED FROM WINDMILL. WHILE FILING THE REVISED RETURN ON 19.12 .2013, ACCORDING TO THE LD. COUNSEL, THE ASSESSEE HAS NOT CLAIMED DEDUC TION UNDER SECTION 80-IA OF THE ACT SINCE THE INCOME OF ` 60,81,004/- WAS NOT ASSESSABLE DURING THE YEAR UNDER CONSIDERATION. AC CORDING TO THE LD. COUNSEL, THE ASSESSEES INCOME RECEIVED FROM WI NDMILL TO THE EXTENT OF ` 60,81,004/- HAS TO BE ASSESSED ONLY IN THE ASSESSME NT YEAR 2014-15, THEREFORE, THE DEDUCTION UNDER SECTIO N 80-IA OF THE ACT WAS NOT CLAIMED IN THE REVISED RETURN. HOWEVER , THE ASSESSING OFFICER FOUND THAT THE INCOME OF ` 60,81,004/- GENERATED FROM OPERATION OF WINDMILL HAS TO BE ASSESSED IN THE YEA R UNDER CONSIDERATION. THEREFORE, ACCORDING TO THE LD. COU NSEL, BY A LETTER DATED 28.10.2015, THE ASSESSEE REQUESTED THE ASSESS ING OFFICER TO GIVE AN OPPORTUNITY TO THE ASSESSEE TO FILE THE AUD IT REPORT IN FORM 10CCB FOR CLAIMING DEDUCTION UNDER SECTION 80-IA OF THE ACT. THE ASSESSING OFFICER, HOWEVER, REJECTED THE CLAIM OF T HE ASSESSEE ON THE GROUND THAT IT WAS NOT RAISED IN THE REVISED RE TURN OF INCOME. 3 I.T.A. NO.1226/MDS/17 3. THE LD.COUNSEL FOR THE ASSESSEE FURTHER SUBMITTE D THAT ON REFERRING TO THE JUDGMENT OF APEX COURT IN GOETZE ( INDIA) LTD. V. CIT (2006) 284 ITR 323, THAT THE ASSESSING OFFICER FOUN D THAT THE CLAIM WHICH WAS NOT MADE IN THE REVISED RETURN CANNOT BE ALLOWED. ACCORDING TO THE LD. COUNSEL, THE RECEIPT OF ` 60,81,004/- WAS TAKEN AS INCOME FOR THE YEAR UNDER CONSIDERATION, THEREFO RE, THE ASSESSING OFFICER HAS TO NECESSARILY EXAMINE WHETHE R IT IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80-IA OF THE ACT. REFE RRING TO THE JUDGMENT OF APEX COURT IN GOETZE (INDIA) LTD. (SUPR A), THE LD.COUNSEL SUBMITTED THAT THIS TRIBUNAL CAN EXAMINE THE CLAIM OF THE ASSESSEE UNDER SECTION 80-IA OF THE ACT. THE LD.CO UNSEL ALSO PLACED HIS RELIANCE ON THE JUDGMENT OF APEX COURT I N JUTE CORPORATION OF INDIA V. CIT (1991) 187 ITR 688 AND SUBMITTED THAT THE CLAIM OF THE ASSESSEE HAS TO BE CONSIDERED ON T HE FACTS OF THE CASE. ACCORDING TO THE LD. COUNSEL, THE GROUND RAI SED BY THE ASSESSEE WAS BONAFIDE ONE AND THE SAME CANNOT BE RE JECTED. IN THIS CASE, THE ASSESSEE WAS UNDER THE BONAFIDE IMPR ESSION THAT THE INCOME OF ` 60,81,004/- NEEDS TO BE ASSESSED IN THE ASSESSMENT YEAR 2014-15. SINCE THE ASSESSING OFFICER FOUND TH AT THE INCOME OF ` 60,81,004/- IS TO BE ASSESSED DURING THE YEAR, THE CLAIM OF THE ASSESSEE HAS TO BE EXAMINED BY THE ASSESSING OFFICE R AND THE 4 I.T.A. NO.1226/MDS/17 CIT(APPEALS). IN VIEW OF THE JUDGMENT OF APEX COUR T IN JUTE CORPORATION OF INDIA (SUPRA), THE LD.COUNSEL SUBMIT TED THAT THE ASSESSING OFFICER OUGHT TO HAVE EXAMINED THE CLAIM OF THE ASSESSEE. 4. ON THE CONTRARY, SHRI N. MADHAVAN, THE LD. DEPAR TMENTAL REPRESENTATIVE, SUBMITTED THAT EVEN THOUGH THE ASSE SSEE MADE A CLAIM UNDER SECTION 80-IA OF THE ACT IN THE ORIGINA L RETURN, SUCH A CLAIM HAS NOT BEEN MADE IN THE REVISED RETURN FILED UNDER SECTION 139(4) OF THE ACT. THE ORIGINAL RETURN FILED BY TH E ASSESSEE WAS MERGED WITH THE REVISED RETURN, THEREFORE, THE CLAI M OF DEDUCTION UNDER SECTION 80-IA OF THE ACT MADE IN THE ORIGINAL RETURN IS DEEMED TO BE WITHDRAWN. HENCE, ACCORDING TO THE LD. D.R., THE CIT(APPEALS) HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, THE ASSESSEE EARNED INCOME FROM OPERATION OF WINDMILL. THE ASSESSEE IN THE ORIGINAL RETURN CLAIMED DEDUCTION UNDER SECT ION 80-IA OF THE ACT. SUBSEQUENTLY, THE ASSESSEE FILED REVISED RETU RN. THE INCOME OF ` 60,81,004/- GENERATED FROM THE OPERATION OF WINDMIL L WAS BONAFIDELY BELIEVED BY THE ASSESSEE THAT IT HAS TO BE ASSESSED IN 5 I.T.A. NO.1226/MDS/17 THE ASSESSMENT YEAR 2014-15. SINCE THE MAJORITY OF INCOME WAS THE INCOME FROM HOUSE PROPERTY FOR THE YEAR UNDER C ONSIDERATION, THE ASSESSEE HAS NOT MADE ANY CLAIM UNDER SECTION 8 0-IA OF THE ACT IN THE REVISED RETURN. WHEN THE ASSESSING OFFI CER FOUND THAT THE RECEIPT OF ` 60,81,004/- HAS TO BE ASSESSED IN THE YEAR UNDER CONSIDERATION, THE ASSESSEE BY A LETTER REQUESTED T HE ASSESSING OFFICER TO ALLOW THE DEDUCTION UNDER SECTION 80-IA OF THE ACT AND ALSO PERMIT TO FILE AUDIT REPORT IN FORM 10CCB AS R EQUIRED BY STATUTE. THE ASSESSING OFFICER BY APPLYING THE JUD GMENT OF APEX COURT IN GOETZE (INDIA) LTD. (SUPRA), FOUND THAT TH E CLAIM MADE IN THE ORIGINAL RETURN AND WITHDRAWN IN THE REVISED RE TURN CANNOT BE ALLOWED. THIS TRIBUNAL IS OF THE CONSIDERED OPINIO N THAT THE ASSESSEE WAS UNDER THE BONAFIDE IMPRESSION THAT THE SUM OF ` 60,81,004/- WAS TO BE ASSESSED IN THE ASSESSMENT YE AR 2014-15 AND NOT IN THE ASSESSMENT YEAR 2013-14, THEREFORE, THE CLAIM WAS NOT MADE IN THE REVISED RETURN. 6. IN VIEW OF JUDGMENT OF APEX COURT IN JUTE CORPOR ATION OF INDIA (SUPRA), THE ASSESSEE CAN MAKE ADDITIONAL CLA IM. MOREOVER, WHEN THE ASSESSING OFFICER FOUND THAT THE AMOUNT OF ` 60,81,004/- SAID TO BE GENERATED FROM THE OPERATION OF WINDMILL TO 6 I.T.A. NO.1226/MDS/17 BE ASSESSED DURING THE YEAR UNDER CONSIDERATION, TH E CLAIM OF DEDUCTION UNDER SECTION 80-IA OF THE ACT CAN BE BRO UGHT TO THE NOTICE OF THE ASSESSING OFFICER IN VIEW OF JUDGMENT OF APEX COURT IN CIT V. SHELLY PRODUCTS AND ANOTHER (2003) 261 ITR 3 67. WHEN THE ASSESSEE IS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 -IA OF THE ACT, SUCH A CLAIM CAN BE BROUGHT TO THE NOTICE OF THE AS SESSING OFFICER OR ANY OF THE INCOME-TAX AUTHORITIES DURING THE COU RSE OF ASSESSMENT PROCEEDING. WHEN SUCH A CLAIM WAS BROUG HT TO THE NOTICE OF THE ASSESSING OFFICER DURING THE COURSE O F ASSESSMENT PROCEEDING, THE ASSESSING OFFICER HAS TO CONSIDER T HE SAME IN VIEW OF THE JUDGMENT OF APEX COURT IN SHELLY PRODUCTS AN D ANOTHER (SUPRA). THEREFORE, THIS TRIBUNAL IS UNABLE TO UPH OLD THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY, ORDERS OF BOTH THE A UTHORITIES BELOW ARE SET ASIDE AND THE CLAIM OF DEDUCTION UNDER SECT ION 80-IA IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE OF DEDUCTION UNDER SECTION 80-IA OF THE ACT AND THEREAFTER DECIDE THE ISSUE AFRESH IN A CCORDANCE WITH LAW, AFTER GIVING A REASONABLE OPPORTUNITY TO THE A SSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7 I.T.A. NO.1226/MDS/17 ORDER PRONOUNCED ON 2 ND NOVEMBER, 2017 AT CHENNAI. SD/- SD/- ( ! ) ( . . . ) (SANJAY ARORA) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 2 ND NOVEMBER, 2017. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-1, COIMBATORE 4. PRINCIPAL CIT-1, COIMBATORE 5. 7: -2 /DR 6. ;( < /GF.