M/s. Bhatewara Associates, Pune V. Income -tax Officer, Pune

ITA 1422/PUN/2017

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7730 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-06-2018
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N DOSHI
• Keywords: Rectification of order; Additional evidence; Reasonable cause
• Section: 80C; 80IB; 154; 139

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH SMC, PUNE . , , BEFORE SHRI D. KARUNAKARA RAO, AM . / ITA NO. 265/PUN/2015 !' # $# / ASSESSMENT YEAR : 2010-11 M/S. BHATEWARA ASSOCIATES, MANIK, SILVER GARDEN AREA, NEAR KAMAT HOSPITAL, CHINCHWAD, PUNE-411 033. PAN : AAKFB2742G ....... / APPELLANT %' / V/S. THE INCOME TAX OFFICER, WARD 9(1), PUNE. / RESPONDENT . / ITA NO. 1422/PUN/2017 !' # $# / ASSESSMENT YEAR : 2010-11 M/S. BHATEWARA ASSOCIATES, MANIK, SILVER GARDEN AREA, NEAR KAMAT HOSPITAL, CHINCHWAD, PUNE-411 033. PAN : AAKFB2742G ....... / APPELLANT %' / V/S. THE INCOME TAX OFFICER, WARD 9(1), PUNE. / RESPONDENT APPELLANT BY : SHRI S.N. DOSHI RESPONDENT BY : DR. VIVEK AGGARWAL. 2 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 / DATE OF HEARING : 15.06.2018 / DATE OF PRONOUNCEMENT : 27.06.2018 & / ORDER PER D. KARUNAKARA RAO, AM THERE ARE TWO APPEALS UNDER CONSIDERATION RELATING TO AS SESSMENT YEAR 2010-11. 2. IN ITA NO.265/PUN/2015, THE ASSESSEE HAS RAISED GRO UNDS RELATING TO ADVERSE CALCULATIONS IN THE RECTIFICATION ORDER DATED 08.08.2 013 PASSED BY THE ASSESSING OFFICER REJECTING CLAIM OF ASSESSEES CONTENT IONS THAT PRIMA FACIE ADJUSTMENT MADE BY THE ASSESSING OFFICER U/S.143(1)(A) O F THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) IS OUTSIDE THE SCOPE OF SAID PROVISIONS. ASSESSEE QUESTIONED OTHER ISSUES TOO. OR IGINALLY, IN THE SUMMARY ASSESSMENT U/S.143(1)(A) OF THE ACT, ASSESSING OFFIC ER DENIED THE CLAIM OF DEDUCTION U/S. 80IB (10) OF THE ACT ON THE GROUND OF FILING RETURN OF INCOME U/S.139(1) OF THE ACT BEYOND THE DUE DATE SPECIFIED IN THE PROVISIONS OF SECTION 139(1) OF THE ACT. 3. BRIEFLY STATED RELEVANT FACTS INCLUDE THAT THE ASSESSE E IS A BUILDER AND DEVELOPER AND ENTERED INTO A JOINT VENTURE AGREEMENT W ITH THE M/S.SANGHVI PREMISES PVT. LTD. THE ASSESSEE OWNS A LAND AND AGREED FOR DEVELOPMENT THROUGH THE JOINT VENTURE WITH SHARING OF 35% OF THE GRO SS REVENUE. IN THE ASSESSMENT YEAR UNDER CONSIDERATION, ASSESSEES SHARE OF REVENUE FROM THE HOUSING PROJECT WORKS OUT TO THE TUNE OF RS.31,06,990/-. ASSESSEE CLAIMED EXEMPTION U/S. 80IB(10) OF THE ACT IN RESPECT OF THE SHARE OF THE PROFITS. 3 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 ASSESSEE FILED THE RETURN OF INCOME ON 31.03.2012 ONLY AGA INST DUE DATE ON 15 TH OCTOBER, 2010. THUS, THERE IS DELAY OF 15 & MONTHS IN FILIN G RETURN OF INCOME. DURING THE SUMMARY ASSESSMENT PROCEEDINGS, ASSES SING OFFICER DENIED THE CLAIM OF SAID DEDUCTION ON THE GROUND THE RET URN HAS NOT BEEN FILED IN TIME AS PROVIDED U/S.139(1) OF THE ACT. AGGRIEVED WITH THE SAID INTIMATION U/S.143(1)(A) OF THE ACT, THE ASSESSEE FILED AN APPLICA TION FOR RECTIFICATION U/S.154 OF THE ACT SEEKING RECTIFICATION AND AR GUED THAT SUCH ADJUSTMENTS ARE NOT PERMISSIBLE U/S.143(1)(A) OF THE ACT. SUC H ADJUSTMENTS DO NOT CONSTITUTE PRIMA FACIE ADJUSTMENTS. THE ASSESSING OFFICER REJECTED THE SAME AS PER HIS ORDER DATED 08.08.2013 BY OBSERVING AS UNDER: 3. I HAVE CONSIDERED THE SUBMISSIONS OF THE ASSESSE E AND THE SAME ARE NOT FOUND TO BE ACCEPTABLE. SECTION 80AC OF THE I.T. ACT PROVIDES THAT DEDUCTION U/S.80IB SHALL BE ALLOWED TO THE ASS ESSEE ONLY IF THE ASSESSEE FURNISHES A RETURN OF INCOME ON OR BEFORE THE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE I.T. ACT. AS SUCH, IN THE PRESENT CASE, THE RETURN OF INCOME WAS REQUIRED TO BE FILED ON OR BEFORE 15 TH OCTOBER, 2010, BUT THE SAME HAS BEEN FILED ONLY ON 31.03.2012 I.E. AFTER GAP OF ALMOST 15 MOTHS. THEREFORE, THE CLAIM OF THE ASSESSEE THAT IT WAS ENTITLED FOR DEDUCTION U/S. 80IB CANNOT BE ACCEPTED TO. 4. FURTHER , THE ASSESSEE IN HIS APPLICATION HAS RE LIED UPON JUDICIAL DECISIONS IN THE CASE OF ACIT VS. DHIR GLOBAL INDUS TRIAL (P) LTD. (2010) 45 DTR 290/133 TTJ 580 ( DELHI) (TRIB.) AND CIT VS. KULU VELLY TRANSPORT CO. (P). LTD. (77 ITR 518). WITH DUE RESP ECT TO THE JUDICIAL AUTHORITIES, IT IS STATED THAT THE JUDICIAL DECISIO NS RELIED UPON BY THE ASSESSEE DOES NOT GRANT IMMUNITY TO IT, AS THE DECIS IONS ARE MISPLACED FOR THE FOLLOWING REASONS: (I) IN ONE CASE OF ACIT VS. DHIR GLOBAL INDUSTRIAL (P) LTD., THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 10B, THE DELAY IN FILING OF RETURN OF INCOME WAS 1 & MONTH DUE TO THE NEW PRO VISO REGARDING E-FILING OF RETURN WHICH WAS INTRODUCED AND IN THE RELEVANT YEAR THE SOFTWARE DID NOT ACCEPT THE RETUR N. IN THIS CASE, THE DEDUCTION CLAIMED WAS U/S.80IB AN D THE RETURN WAS DELAYED BY ALMOST 15 MOTHS JUST BECAUSE OF THE OVERSIGHT OF THE TAX RETURN PREPARER WHICH IS NOT A VALID REASON. THE ASSESSEE WAS NOT PREVENTED FROM HIRING ANOTHER CONSULTANT. FURTHER, THE REASONS GIVEN FOR LATE FILING IS ALSO TOO VAGUE. THERE BEING NO SATISFACTORY EXPLANATION FOR DELAY IN FILI NG RETURN, THE ASSESSEE REQUEST IS REJECTED. HENCE, THE DECISION RELIED UPON BY THE ASSESSEE IS DISTINGUISHED. FURTHER, THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S. BINDRA CONTR ACTORS VS. UNION BANK OF INDIA AND OTHERS, CWP NO. 8427 OF 200 9, HAS RULED THAT THE REFUSAL TO CONDONE THE DELAY WAS JU STIFIED AS THERE WAS NOT SATISFACTORY EXPLANATION FOR DELAY IN FILING RETURN. 4 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 (II) IN THE CASE OF CIT VS. KULU VALLEY TRANSPORT C O. (P) LTD., THE ASSESSEE HAD CLAIMED SET OFF OF CARRIED FORWARD BUS INESS LOSS IN A.Y.1953-54 AND 1854-55, INCOME TAX ACT, 1922 WAS I N FORCE AT THAT TIME. IN THE CASE OF THE ASSESSEE, THE DEDUCTION IS CLAIM ED U/S.80IB. FURTHER, THE INCOME TAX ACT, 1961 HAS OVERRULED THE I.T. ACT, 1922. SECTION 80AC HAS BEEN INSERTED IN FINANCE ACT , 2006 W.E.F. 1.4.2006, DISALLOWING DEDUCTION IN CASE OF B ELATED RETURN. THE DECISION RELIED UPON BY THE ASSESSEE IS DISTING UISHED AND HENCE MISPLACED. 5. THUS, APPLICATION FILED BY ASSESSEE IS ACCORDING LY REJECTED, FOR THE DISCUSSIONS MADE ABOVE. 4. DURING THE FIRST APPELLATE PROCEEDINGS, THE CIT(A) CONFIRM ED THE RECTIFICATION ORDER OF ASSESSING OFFICER. AGGRIEVED WITH THE S AME ASSESSEE FILED AN APPEAL BEFORE ME BY RAISING THE FOLLOWING GROUNDS: THE LEARNED CIT(A) ERRED ON FACTS, IN LAW AND UNDER THE CIRCUMSTANCES IN :- A) CONFIRMING THE DISALLOWANCE OF CLAIM MADE U/S. 80IB(10) OF INCOME TAX ACT, 1961 OF RS.31 ,06,990/-. B) OBSERVING AND THEREAFTER CONCLUDING THAT THE PROVIS IONS OF SEC.80 AC OF INCOME TAX ACT READ WITH 4TH PROVISO TO SEC.1 39(1) OF INCOME TAX ACT, 1961 ARE MANDATORY AND NOT DIRECTORY . C) OBSERVING THAT THERE IS AN AOP BETWEEN THE APPELLAN T & M/S SANGHVI PREMISES PVT. LTD AND AOP SHOULD HAVE BEEN ASSESSED TO TAX AND SHOULD HAVE CLAIMED DEDUCTION U/S. 80IB(10) AND NOT THE APPELLANT WHO HAS CLAIMED DEDUCTION U/S. 80IB(10) IN THE RETURN FILED BY THE APPELLANT. D) HOLDING THAT APPELLANT IS NOT ENGAGED IN DEVELOPING AND BUILDING HOUSING PROJECTS IN ITS OWN CAPACITY. E) HOLDING THAT RETURN OF INCOME FILED AS PER THE PROV ISION OF SEC.139(4) CANNOT BE TREATED AS FILED PURSUANT TO S EC . 139(1) OF INCOME TAX ACT, 1961. THE APPELLANT RESPECTFULLY SUBMITS THAT IT IS ENTIT LED TO DEDUCTION U/S 801B (10) OF INCOME TAX ACT OF RS.31 ,06,990/- BEING PROFIT AND GAIN DERIVED AS BU I LDER & DEVELOPER AND THE DELAY IN FILING THE RETURN IS DUE TO REASONABLE CAUSE AND AS WELL THE DELAY CANNOT NEGATE HIS CLAIM . IT HAS FILED THE RETURN WITHIN THE TIME ALLOWED U/S. 139(4) OF INCOME TAX ACT , 1961 . THE APPELLANT FURTHER SUBMITS THAT HIS JOINT VENTURE ME MBER HAS BEEN DULY ALLOWED THE CLAIM ON INCOME FALLING ON ITS PART U/S. 801B(10) AND AS A MEMBER OF JOINT VENTURE IT SHOULD ALSO BE ALLOWED T HE CLAIM . THE APPELLANT SUBMITS THAT ALL THE GROUNDS OF APPEA L ARE WITHOUT PREJUDICE TO ONE ANOTHER. 5 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 THE APPELLANT CRAVES LEAVE TO ADD, AMEND, AND WITHD RAW ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. FROM THE ABOVE, THE ASSESSEE SUBMITTED THAT THE CLAIM O F ASSESSEE IS ALLOWABLE ON MERIT AS THE RETURN FILED ON 31.03.2012, IS WITHIN THE TIME PERMITTED U/S. 139(4) OF THE ACT. 5. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE RAISED VAR IOUS SUBMISSIONS STATING THAT : (I) THE DUE DATE QUA FILING RETURN OF INCOME FOR CLAIMING DEDUCT ION U/S. 80IB(10) CONSTITUTES DEBATABLE ISSUE AND THEREFORE, THE SAME IS OUTSIDE THE SCOPE OF THE PROVISIONS OF SECTION 154 OF THE ACT. (II) THE PRIMA FACIE ADJUSTMENT MADE BY THE ASSESSING OFFICER U/S.139(1) OF THE ACT IS OUTSIDE THE PROVISIONS SPECIFIED IN SUB SECTION (1) OF SECTION 139 OF THE ACT WHICH DEALS QUANTUM OF DEDUCT ION CLAIMED U/S. 80IB (10) OF THE ACT. THE LD. COUNSEL SUBMITTED BELATED FILING OF RETURN OF INCOME LINKED WITH THE CLAIM OF SAID DEDUCTIO N DO NOT CONSTITUTE INCORRECT CLAIM AND IN THIS CASE, THIS ISSUE IS NOT REQUIRED TO BE REBUTTED AND DISPUTED. (III) RELYING VARIOUS DECISIONS, LD. COUNSEL SUBMITTED THAT SAID DECISIONS CONFIRMED THE EXISTENCE OF DEBATE ON THIS ISSUE. R EFERRING THE AMENDED PROVISIONS OF SECTION 139 CLAUSE 3(I) OF SUB SEC TION (1), LD. COUNSEL SUBMITTED THAT THESE PROVISIONS DO NOT APPLY TO THE ASSESSMENT YEAR 2010-11, AS THE SAME WERE INCORPORATE D BY THE FINANCE ACT, 2017. HE FURTHER MENTIONED THAT THESE PROV ISIONS ARE PROSPECTIVE IN NATURE AND NOT RETROSPECTIVE. (IV) RELYING ON THE DECISION OF PUNE BENCH OF TRIBUNAL IN THE CASE OF SURENDRA RAMCHANDRA BHATKAR VS. ITO, ITA NO. 1892/P N/2013, DECIDED ON 21.01.2014, LD. COUNSEL SUBMITTED THAT SUCH CLAIMS ARE ALLOWABLE IN THE SUMMARY ASSESSMENTS EVEN IF RETURN ARE FILE D LATE 6 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 AND THE SAME CONSTITUTES PLAUSIBLE VIEW. FURTHER, LD. COU NSEL RELIED ON VARIOUS DECISIONS ALONG WITH WRITTEN SUBMISSIONS COPIES O F WHICH ARE PLACED AT PAGE 1 TO 4 OF THE PAPER BOOK. (V) FURTHER REFERRING TO THE DECISION OF MUMBAI BENCH OF TR IBUNAL IN THE CASE OF ITO VS. M/S. UMA DEVELOPERS , ITA NO. 7718/MUM/2014, DECIDED ON 10.08.2016, THE LD. COUNSEL SUBM ITTED THAT THE ISSUE DECIDED BY THE MUMBAI BENCH OF TRIBUNAL I S EXACTLY IDENTICAL TO THE FACTS OF THE PRESENT CASE THAT CLAIM OF DEDUCTION U/S. 80IB (10) WAS CLAIMED IN THE RETURN FILED BEYOND THE TIME LIMIT AS SPECIFIED U/S.139 OF THE ACT AND ALSO RECTIFICATION APPLICATION U/S.154 OF THE ACT WAS DENIED BY THE ASSESSING OFFICER IN VIEW OF PR OVISIONS OF SECTION 80AC OF THE ACT. THE TRIBUNAL HELD SUCH PRIMA FACIE ADJUSTMENT IS OUTSIDE THE SCOPE OF PROVISIONS OF SECTION 1 43(1) OF THE ACT AND CONSEQUENTLY, HELD ASSESSEES CLAIM OF DEDUCTION U/S.80IB (10) IS TO BE ALLOWED AND RECTIFICATION APPLICATION U/S.154 OF T HE ACT SHOULD HAVE BEEN RIGHTLY DECIDED IN FAVOUR OF ASSESSEE. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE RELIED HEAVILY ON THE INTIMATION ISSUED U/S. 143(1)(A) OF THE ACT AS WELL AS RECTIFICAT ION ORDER PASSED BY THE ASSESSING OFFICER DATED 08.08.2013. THE LD. D R RAISED VARIOUS ISSUES RELATING TO: I) RETROSPECTIVE APPLICABILITY OF AMENDED PROVISION OF SECTION 143(1)(A) OF THE ACT. II) STRICT INTERPRETATION OF PROVISIONS OF SECTION 80AC OF THE ACT. III) NON-EXTENDING THE DUE DATE OF FILING RETURN OF INCOME AS SPECIFIED U/S. 139(1) OF THE ACT WITH REGARD TO ALLOWABILITY OF CLAIM OF THIS KIND. THE LD. DR RELIED ON VARIOUS DECISIONS IN SUPPORT OF HIS AR GUMENTS. HE ALSO FILED WRITTEN SUBMISSIONS DATED 12.06.2018 CONTENDING THAT DUE 7 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 DATE FOR FILING THE RETURN OF INCOME AS PROVIDED U/S. 139(1) O F THE ACT CANNOT BE EXTENDED IN VIEW OF PROVISIONS OF SECTION 139(4) OF THE ACT. 7. I HAVE HEARD BOTH THE PARTIES. THE LEGAL ISSUE RAISED BY ASSE SSEE IN HIS ARGUMENTS FOR ADJUDICATION BEFORE ME INCLUDES: I) WHETHER DENYING CLAIM OF DEDUCTION U/S. 80IB(10) OF THE ACT IN VIEW OF THE FILING THE RETURN OF INCOME BELATEDLY BEYOND DUE DA TE AS SPECIFIED U/S. 139(1) OF THE ACT CONSTITUTES PRIMA FACIE ADJUS TMENT OR NOT? II) ANOTHER ASPECT OF THIS ISSUE RELATES TO WHETHER THE SAID DENIAL CLAIM OF DEDUCTION CONSTITUTES A DEBATABLE ISSUE AND THE SAME IS OUTSIDE TH E SCOPE OF PROVISIONS OF SECTION 154 OF THE I. T. ACT OR NOT? 8. ON HEARING BOTH THE PARTIES ON BOTH THE LEGAL ISSUES CITED ABOVE, I AM OF THE VIEW, BOTH THESE ISSUES ARE NOW ANSWERED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SURENDRA RAMCHANDRA BHATKAR VS. ITO (SUPRA.) . ON PERUSAL OF THE SAID DECISION COPY OF WHICH IS PLACED A T PAGE 54 TO 59 OF THE PAPER BOOK, I FIND THE FACTS ARE VERY MUCH IDENTICAL TO THE FACTS OF THE PRESENT CASE AND THE CLAIM IS FOUND ALLOWED. RELYING ON THE DECISION OF HYDERABAD BENCH OF TRIBUNAL IN THE CASE OF ITO VS. SRI S. VENKATAIAH, ITA NO. 984/HYD/2011, DECIDED ON 31.05.2012 , THE PUNE BENCH OF TRIBUNAL ALLOWED THE APPEAL OF ASSESSEE FOR STATISTICAL PURPO SES. IN PARA 14 OF THE SAID ORDER, THE TRIBUNAL HELD THAT THE CLAIM OF THE A SSESSEE CANNOT BE DENIED ON TECHNICALITIES WHEN THE ASSESSEE IS LEGALLY OTHER WISE ENTITLED FOR DEDUCTION. 9. I HAVE ALSO PERUSED THE DECISION OF MUMBAI BENCH OF TR IBUNAL IN THE CASE OF ITO VS. M/S. UMA DEVELOPERS (SUPRA.) AND FOUND THE FACTS OF THE 8 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 PRESENT CASE ARE ALSO COMPARABLE. THE TRIBUNAL DECIDED TH E ISSUE IN FAVOUR OF ASSESSEE BY HOLDING AS UNDER: 3.4.2 ON AN APPRECIATION OF THE FINDINGS RENDERED BY THE LEARNED CIT(A) WHILE ALLOWING THE ASSESSEE'S APPEAL (SUPRA) , WE OBSERVE THAT THE LEARNED CIT(A) HAS CONSIDERED AT LENGTH THE ISS UE OF WHETHER THE AO'S DISALLOWANCE OF THE ASSESSEE'S CLAIM FOR DEDUC TION UNDER SECTION 80IB(10) OF THE ACT, FOR THE REASON THAT THE RETURN OF INCOME FOR A.Y. 2012-13 WAS FILED BEYOND THE DUE DATE STIPULATED UN DER SECTION 139(1) OF THE ACT (BUT WAS FILED WITHIN THE TIME ALLOWED U NDER SECTION 139(4) OF THE ACT), IN VIEW OF THE PROVISIONS OF SECTION 80AC OF THE ACT IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 143(1) OF TH E ACT. WE CONCUR WITH THE VIEW OF THE LEARNED CIT(A) THAT AS PER THE RATI O OF THE DECISIONS OF THE HON'BLE BOMBAY HIGH COURT IN TRUSTEES OF TULSHI DAS GOPALJI CHARITABLE & CHALESHWAR TEMPLE TRUST (SUPRA) AND OF THE COORDINATE BENCH IN THE YASH DEVELOPERS (SUPRA), EVEN IN CASES WHERE THE RETURN OF INCOME IS FILED BEYOND THE DUE DATE STIPULATED U NDER SECTION 139(1) OF THE ACT, THE DEDUCTION SHOULD NOT BE DISALLOWED UNDER SECTION 143(1) OF THE ACT MERELY IN VIEW OF THE PROVISIONS OF SECT ION 80C OF THE ACT. WE ALSO FIND ON A PERUSAL OF THE PROVISIONS OF SECTIO N 143(1) OF THE ACT, THAT THE AOS ACTION IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, SINCE THE RETURN OF INCOME WAS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139 (1) OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 80AC, IS BEYOND THE SCOPE OF SECTION 143(1) SINCE THERE IS NEITHER AN ARITHMETICAL ERROR NOR A N INCORRECT CLAIM APPARENT FROM THE RECORD. IN THIS VIEW OF THE MATTE R, WE UPHOLD THE FINDING OF THE LEARNED CIT(A) THAT THE AO WAS NOT J USTIFIED IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDE R SECTION 80IB (10) OF THE ACT AND HIS DIRECTION TO THE AO TO DELETE TH E DISALLOWANCE THEREOF, MADE UNDER SECTION 143(1)(A)/143(1) OF THE ACT. CON SEQUENTLY, REVENUES GROUNDS OF APPEAL ARE DISMISSED. AS SUCH, THE ISSUE UNDER CONSIDERATION ATTRACTS LOTS OF LEGAL DEBATE AND THEREFORE, THEY CANNOT CONSTITUTE PRIMA-FACIE ADJUSTMENTS FOR THE YEAR UNDER CONSIDERATION. FROM THE ABOVE, IT IS EVIDENT THAT T HE PRIMA FACIE ADJUSTMENT MADE BY THE ASSESSING OFFICER U/S.143(1)(A) IS NO T PERMISSIBLE AND SUSTAINABLE IN LAW. CONSEQUENTLY, THE APPLICATION OF ASSE SSEES REQUEST FOR RECTIFICATION U/S. 154 OF THE ACT SHOULD HAVE BEEN ALLOW ED. FURTHER, THE ORDER OF MUMBAI BENCH OF TRIBUNAL IN THE CASE OF ITO VS. M/S. UMA DEVELOPERS (SUPRA.) IS DIRECTLY APPLICABLE ON THIS ISSUE. CONSIDERING THE SAME, I AM OF THE OPINION THAT ALL THE GROUNDS RAISED BY A SSESSEE IN THIS APPEAL ARE REQUIRED TO BE ALLOWED IN FAVOUR OF THE ASSESSE E. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 9 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 10. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 1422/PUN/2017 A.Y.2010-11 11. THIS APPEAL IS FILED BY THE ASSESSEE IN CONNECTION WITH THE ORDERS PASSED BY THE AO/CIT(A). THE ISSUES/ GROUNDS RELATE TO THE SUMMARY ASSESSMENT ORDER MADE U/S.143(1)(A) OF THE ACT. THUS, THIS A PPEAL RELATES TO THE SUMMARY ASSESSMENT ORDER AND THE EARLIER APPEAL R ELATES TO THE RECTIFICATION ORDER ON THE SAID SUMMARY ASSESSMENT ORDER . THE GROUNDS RAISED IN THIS APPEAL ARE EXTRACTED AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN DISMISSING THE APPEAL OF THE APPELLANT ON THE GROUND OF DELAY IN FILING THE APPEAL REFUSING TO ACCEPT THE SUFFICI ENT CAUSE EXPLAINED FOR OCCURRENCE OF DELAY IN FILING THE APPEAL. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E BY DISMISSING OF APPEAL ON THE GROUND OF DELAY IN FILING OF THE APPE AL THE LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE ISSUE OF MERIT INVOLV ED IN THE APPEAL. THE ABOVE GROUNDS OF APPEAL MAY KINDLY BE ALLOWED T O BE AMENDED, ALTERED, MODIFIED ETC. IN THE INTEREST OF NATURAL J USTICE. 12. THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE BEFORE U S INCLUDE THAT THE ASSESSEE FILED APPEAL AGAINST PRIMA FACIE ADJUSTMENT U /S.143(1)(A) /143(1) OF THE ACT BEFORE CIT(A) AND THE GROUNDS ARE OVER -LAPPING WITH THE GROUNDS RAISED BEFORE THE CIT(A) IN CONNECTION WITH THE OR DER U/S.154 OF THE ACT DATED 08.08.2013. HOWEVER, THE APPEAL IS STATED TO HA VE BEEN FILED BEFORE THE CIT(A). AS PER DISCUSSION GIVEN IN PARA 2.1 TO 4 OF THE ORDER OF CIT(A), THE DELAY OF 3 YEARS WAS NOT CONDONED BY TH E CIT(A) AND THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A) WITHOUT GOING INTO MERITS. 10 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 13. BEFORE ME, THE LD. COUNSEL FOR THE ASSESSEE DEMONST RATED THAT THE ISSUES RAISED IN THIS APPEAL ARE PARAMETERIA ON THE CONTE NT WITH THAT OF THE ISSUES RAISED IN ITA NO. 265/PUN/2015. THEREFORE, IT IS THE SUBMISSION OF ASSESSEE THAT IN CASE RELIEF IS GRANTED IN THE ABOVE SAID APPEAL I.E. ITA NO.265/PUN/2015 AGAINST ORDER PASSED U/S.154 OF THE ACT, THE ADJUDICATION OF THIS APPEAL BECOMES AN ACADEMIC EXERCISE . HE FURTHER MENTIONED THAT THE ORDER PASSED U/S.143(1)(A) OF THE ACT A ND ALSO RECTIFICATION ORDER PASSED U/S.154 OF THE ACT TRAVEL ON SAME FOO TINGS ON THEIR CONTENTS AND THEREFORE, ADJUDICATION OF THIS ISSUE HAS THE SAME EFFECT ON BOTH THE ORDERS. 14. ON THE OTHER HAND, LD. DR FOR THE REVENUE FAIRLY S UBMITTED THAT THE CIT(A) HAS NOT ADJUDICATED THIS ISSUE ON MERITS AND THER EFORE, THE ISSUE NEEDS TO BE REMANDED BACK TO THE FILE OF CIT(A) FOR WANT O F PROPER ADJUDICATION ON MERIT. OTHERWISE, THE CIT(A) WAS ON THE ISS UE OF LATE FILING OF THE APPEAL BEFORE HIM. 15. ON HEARING BOTH THE SIDES, I FIND THE ISSUE RAISED BEFO RE CIT(A) ON MERIT RELATES TO THE PRIMA FACIE ADJUSTMENT MADE BY THE ASSESSING OFFICER U/S. 143(1)(A) OF THE ACT AND THE RECTIFICATION ORDER REJECTING ASSESSE ES CLAIM OF DEDUCTION U/S.80IB(10) OF THE ACT. IN THIS REGARD, IT IS R ELEVANT TO REFER MY ORDER ABOVE (PARA 1 TO 10) IN CONNECTION WITH ITA NO.265/PUN/2015 WHERE I HAVE ALLOWED THE APPEAL OF ASSESSEE AFTER GIVING DETAILED RE ASONS ON MERITS. FOLLOWING THE SAME PARITY OF REASONS, GROUNDS RAISED IN ITA NO.1422/PUN/2017 BY ASSESSEE RELATING TO THE TECHNICA LITIES BECOMES A TECHNICAL ONES. CONSEQUENTLY, IN MY VIEW, ADJUDICATION OF THE ISSUE RELATING TO DELAY IN FILING APPEAL LATE BEFORE THE CIT(A) BY ASSESSEE B ECOMES AN 11 ITA NO.265/PUN/2015 ITA NO.1422/PUN/2017 A.Y.2010-11 ACADEMIC EXERCISE. THUS, THE GROUNDS RAISED BY ASSESSEE ARE DISMISSED ACCORDINGLY. 16. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. 17. TO SUM UP, THE APPEAL OF THE ASSESSEE IN ITA NO.2 65/PUN/2015 IS ALLOWED AND THE APPEAL OF ASSESSEE IN ITA NO.1422/PUN/201 7 STANDS DISMISSED. ORDER PRONOUNCED ON 27 TH DAY OF JUNE, 2018. SD/- ( . / D. KARUNAKARA RAO ) / ACCOUNTANT MEMBER / PUNE; ! ' / DATED : 27 TH JUNE, 2018. SB &'(!)*+,+$) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS), PUNE-6. 4. THE CIT-5, PUNE. 5. %&' (( )* , + )* , - ,-. , / DR, ITAT, SMC BENCH, PUNE. 6. '/ 01 / GUARD FILE. // TRUE COPY // +2 / BY ORDER, ( 3 ). /PRIVATE SECRETARY + )* , / ITAT, PUNE.