M/s Punjab Genco Limited, Chandigarh V. ACIT, Chandigarh

ITA 1254/CHANDI/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 77019 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 29-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARVEER SINGH
• Assessee Lawyers: VINEET KHUR ANA
• Section: 234B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO. 1254/CHD/2012 ASSESSMENT YEARS : 2009-10 PUNJAB GENCO LTD VS. A.C.I.T. CIRCLE 4(1) SOLAR PASSIVE COMPLEX CHANDIGARH PLOT NO. 1-2 SECTOR 33-D, CHANDIGARH AABCE 4274 L (APPELLANT) (RESPONDENT) APPELLANT BY: S/SHRI TEJ MOHAN SINGH & VINEET KHUR ANA RESPONDENT BY: SHRI AMARVEER SINGH DATE OF HEARING 24.3.2014 DATE OF PRONOUNCEMENT 21.4.2014 O R D E R PER T.R. SOOD, A.M THIS APPEAL IS DIRECTED AGAINST THE ORDER DATED 4.1 0.2012 OF THE LD CIT(A), CHANDIGARH. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: 1 THAT THE LD. CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS IN UPHOLDING THE DISALLOWANCE OF DEDUCTION OF RS. 1182 00375/- CLAIMED U/S 80IA OF THE ACT WHICH IS ILLEGAL, ARBIT RARY AND UNJUSTIFIED. 2 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDIN G THAT THE DEDUCTION IS NOT ALLOWABLE FOR THE REASON THAT CERT AIN COLUMNS OF FORM 10CCB WERE BLANK AND THE ASSESSEE HAD NOT FILE D THE AUDIT REPORT IN THE OFFICE OF THE ASSESSING OFFICER WHICH IS NOT THE REQUIREMENT OF LAW AS PER CIRCULAR NO. 3/2009 AND A S SUCH THE ORDER PASSED IS ILLEGAL, ARBITRARY AND UNJUSTIFIED. 3 THAT THE LD. CIT(A) HAS FAILED TO CONSIDER THE SU BMISSIONS PUT FORTH BEFORE HIM AND EVEN THE AFFIDAVIT OF THE C.A NARRATING THE FACTUAL POSITION AND AS SUCH THE ORDER PASSED WITHO UT CONSIDERING THE COMPLETE DOCUMENTS IS ILLEGAL, ARBITRARY AND UN JUSTIFIED. 4 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDIN G THE ADDITION OF RS. 99,678/- MADE BY RESORTING TO THE P ROVISIONS OF SECTION 14A R.W. RULE 8D OF THE ACT WHICH IS ARBIT RARY AND UNJUSTIFIED. 5 THAT THE BALANCE DEMAND OF RS. 31793720/- BE STAY ED TILL THE DECISION OF THE APPEAL AS A SUM OF RS. 11765690 /- HAS ALREADY BEEN DEPOSITED AND ADJUSTED. 2 6 THAT THE LD. CIT(A) HAS FURTHER ERRED IN UPHOLDI NG THE CHARGING OF INTEREST U/S 234B OF THE ACT WHICH IS N OT CHARGEABLE IN THE FACTS OF THE CASE. 3 AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE A SSESSEE SUBMITTED THAT HE WOULD LIKE TO PRESS ONLY TWO ISSU ES NAMELY (I) DENIAL OF DEDUCTION U/S 80IA BECAUSE OF THE DEFECT IN FORM NO. 10 CCB (II) LEVY OF INTEREST U/S 234B OF INCOME -TA X ACT, 1961. FIRST ISSUE 4 AFTER HEARING BOTH THE PARTIES WE FIND THAT THE A SSESSEE IS A GOVERNMENT UNDERTAKING ENGAGED IN THE BUSINESS OF TRANSMISSION OF POWERS. THE ASSESSEE HAD CLAIMED D EDUCTION U/S 80IA AMOUNTING TO RS. 118200375/-. THE ASSESSE E FURNISHED FORM NO. 10CCB. DURING ASSESSMENT PROCEE DINGS THE ASSESSING OFFICER NOTICED THAT FORM 10CCB IS NO T WITHIN DUE DATE ACCORDING TO SECTION 44AB. IT WAS NOTED THAT FORM 10CCB SUBMITTED BY THE ASSESSEE WAS DATED 25TH OCT 2009 W HEREAS DUE DATE WAS 30TH SEPT 2009. THE ASSESSING OFFICER ISSUED A SHOW CAUSE NOTICE THAT WHY DEDUCTION U/S 80IA SHOUL D BE NOT BE DENIED IN VIEW OF FORM 10CCB BEING BEYOND THE DU E DATE. THE ASSESSEE SUBMITTED VIDE LETTER DATED 14.12.201 1 AS UNDER: THE STATUTORY AUDITORS M/S AGGARWAL ASHOK & ASSOCI ATES AND TAX AUDITORS M/S S.K. KHAITAN AND CO. CONDUCTED AND FIN ISHED THE AUDITORS UNDER THE COMPANIES ACT AND AUDIT U/S 44AB OF THE INCOME -TAX ACT, 1961 ON 22.9.2009 (COPY OF AUDIT R EPORT ENCLOSED VIDE ANNEXURE I AND II). SUBSEQUENTLY THE AUDIT U/S 80IA IS TAKEN UP BY C.A SURESH GUPTA AND THE AUDIT REPORT IN FORM NO. 10CCB WAS FURNISHE D. THE AUDIT WAS FINISHED ON 25.9.2009 BUT DUE TO A TYPOGRAPHICA L ERROR THE DATE INSTEAD OF 25.9.2009 WAS TYPES AS 25.10.2009 W HICH ESCAPED THE ATTENTION OF C.A SURESH GUPTA DUE TO THE HEAVY RUSH OF THE INCOME TAX RETURNS TO BE FILED BY 30.9.2009. IT IS PERTINENT TO MENTIONED THAT THE RETURN OF INCOME OF PUNJAB GENCO . LTD., WAS ALSO FILED BY C.A SURESH GUPTA FROM HIS IP ADDRESS 122.160.44.13 BY 30.9.2009. COPY OF INCOME TAX RETURN ENCLOSED V IDE ANNEXURE II(A)(). THE AUDIT REPORT IN THIS CHRONOLOGICAL ORDER WAS OB TAINED ON 25.9.2009 BUT INADVERTENTLY WAS DATED 25.10.2009 DU E TO AN OVERSIGHT OF THE CLERICAL AND TYPOGRAPHICAL MISTAKE . 3 IT WAS FURTHER CONTENDED THAT THE ASSESSEE CANNOT B E MADE TO SUFFER BECAUSE OF A CLERICAL / TYPOGRAPHICAL MISTAK E ON THE PART OF THE COUNSEL OR THE ADVISOR. IN THIS REGARD RELI ANCE WAS PLACED ON VARIOUS CASE LAWS. 5 THE ASSESSING OFFICER CONSIDERED THE REPLY. STAT EMENT OF SURESH GUPTA WAS ALSO RECORDED WHEREIN IT WAS ACCEP TED THAT THE DETAILS / INFORMATION MENTIONED IN THE AUDIT RE PORT U/S 80IA(7) IN FORM NO. 10 CCB ARE TRUE AND CORRECT. I T WAS FURTHER NOTED THAT NO COMPUTATION OF THE AMOUNT OF DEDUCTIO N WAS GIVEN IN THE FORM. IN THIS BACKGROUND IT WAS OBSER VED THAT THE ASSESSEE HAS NOT FULFILLED THE CONDITIONS OF FILING PROPER REPORT IN FORM 10CCB. ACCORDINGLY CLAIM FOR DEDUCTION WAS REJECTED. 6 ON APPEAL THE SUBMISSIONS BEFORE THE ASSESSING OF FICER WERE REITERATED AND THE LD. CIT(A) DID NOT FIND FOR CE IN THE SAME AND REJECTED THE SAME. 7 BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE REITE RATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND EMPHASI ZED THAT IT W AS A SIMPLE MISTAKE ON THE PART OF AUDITOR OF PUTTING A WRONG DATE WHICH SHOULD NOT LEAD TO THE DENIAL OF C LAIM. HE REFERRED TO THE DECISION OF HON'BLE PUNJAB AND HARY ANA HIGH COURT IN CASE OF CIT VS. DEEPAK KUMAR, 38 DTR 118 (COPY FILED) WHEREIN IT WAS HELD THAT THE ASSESSEE CANNOT BE ALLOWED TO SUFFER BECAUSE OF THE WRONG ADVICE OF THE EXPERT . SIMILAR VIEW HAS BEEN TAKEN IN CASE OF CIT VS. SIDHARATHA E NTERPRISES, 322 ITR 80. 8 HE FURTHER POINTED OUT THAT EVEN THE ASSESSING O FFICER COMMITTED A MISTAKE IN MENTIONING THE DATE AT PAGE 7 WHEREIN HE HAS STATED THAT THE STATEMENT OF SURESH GUPTA WA S RECORDED ON 29.9.2012 WHEREAS ASSESSMENT ORDER HAS BEEN PASS ED ON 30.12.2011. SIMILARLY EVEN THE LD. CIT(A) HAS COMM ITTED A 4 MISTAKE AT PAGE 2 OF HIS ORDER WHEREIN IN THE LAST LINE IT HAS BEEN MENTIONED THAT THE APPELLANT HAS NOT FURNISHED AUDIT REPORT IN THE OFFICE OF THE ASSESSING OFFICER BY TH E DUE DATE I.E. 30.10.2009 WHICH IN FACT SHOULD BE 30.9.2009. THER EFORE SUCH TYPE OF MISTAKE IS POSSIBLE BY ANYBODY AND AN ADVER SE INFERENCE CANNOT BE TAKEN. 9 WE HAVE GONE THROUGH THE RIVAL SUBMISSIONS CAREFU LLY AND FIND FORCE IN THE SUBMISSIONS OF THE LD. COUNSEL FO R THE ASSESSEE. THE DEDUCTION U/S 80IA HAS BEEN DENIED M ERELY BECAUSE FORM NO. 10CCB HAS BEEN DATED 25.10.2009 WH ICH IN FACT WAS 25.9.2009. IN FACT IN THE COMPUTATION OF INCOME DEDUCTION AMOUNTING TO RS. 118200375/- HAS BEEN CLA IMED WHICH MEANS THAT THE REPORT ITSELF WAS FILED WITHIN DUE DATE. THIS MEANS REPORT HAD BEEN SIGNED ON 25.9.2009 BUT BY MISTAKE WRONG DATE HAS BEEN MENTIONED. IT IS A SET TLED LAW THAT LITIGANT CANNOT SUFFER JUST BECAUSE OF SOME CL ERICAL / TYPOGRAPHICAL MISTAKE ON THE PART OF THE ADVISOR OR LEGAL EXPERT. THEREFORE IN OUR OPINION, ACTUAL REPORT WA S SIGNED ON 25.9.2009 WHICH IS WELL WITHIN TIME. INTERESTINGLY THE COUNSEL FOR THE ASSESSEE HAS POINTED THAT WRONG MENTIONING OF DATE IN THE ASSESSMENT ORDER AS WELL AS IN THE IMPUGNED ORD ER. AS THE ASSESSING OFFICER OR THE FIRST APPELLATE AUTHORITY HAD COMMITTED A MISTAKE BY WRONG MENTIONING OF DATE, SIMILAR MIST AKE CAN BE COMMITTED BY A C.A ALSO. THEREFORE WE SET ASIDE TH E ORDER OF THE LD. CIT(A) AND DIRECT THE ASSESSING OFFICER TO ALLOW DEDUCTION U/S 80IA AMOUNTING TO RS. 118200375/-. 10 SECOND ISSUE IS IN RESPONSE OF CHARGING OF INTER EST U/S 234B WHICH IS OF CONSEQUENTIAL NATURE AND THEREFORE ASSESSING OFFICER IS DIRECTED TO LEVY INTEREST IN ACCORDANCE WITH LAW. 11 IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 21.4.2014 SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21.4.2014 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 5