M/s. Bhatewara Associates, Pune V. Deputy Commissioner of Income tax, Pune

ITA 1423/PUN/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 3114 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARI KRISHAN
• Keywords: Reasonable cause
• Section: 143(3); 119(2)(b); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AA BENCH, PUNE BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER ITA No. 1423/PUN/2017 (Assessment Year: 2011-12) M/s. Bhatewara Associates Manik Silver Garden Area Near Kamat Hospital Chinchwad Pune 411033 Vs. Deputy Commissioner of Income Tax, Circle -9 Pune PAN – AAKFB2742G Appellant Respondent Appellant by: Shri Hari Krishan Respondent by: Shri S.P. Walimbe Date of Hearing: 25.04.2020 Date of Pronouncement: 04.05.2020 O R D E R Per S.S. Godara, JM This assessee’s appeal for AY 2011-12 is against the order of the CIT(A) 6, Pune dated 31.03.2017 passed in case No. PN/CIT(A)-V/DCIT Cir- 9/368/2014-15 involving proceedings under Section 143(3) of the Income Tax Act, 1961 in short the Act. Heard both the parties. Case file perused. 2. The assessee pleads the following substantive grounds in the instant appeal: - “1. On the facts and in the circumstances of the case the ld. CIT(A) has erred in sustaining the disallowance of claim made by the appellant u/s 80IB(10) overlooking the fact that this claim is in respect of housing project completed by the appellant and M/s Sanghvi Premises (P) Ltd. as per the joint venture agreement executed under principal to principal basis and most importantly allowing the said claim in the hands of M/s . Sanghvi Premises (P) Ltd. 2. On the facts and in the circumstances of the case and as assumed by the CIT(A) that this arrangement of joint venture is ITA No. 1423/Pun/2017 M/s. Bhatewara Associates 2 in the nature of AOP nonetheless the 80IB(10) claim should not have been denied. 3. On the facts and in the circumstances of the case the ld. CIT(A) has erred in rejecting the claim made u/s 80IB(10) by assigning the reasons such as obtaining ULC certificate, commencement certificate etc in the name of the appellant one of the associates overlooking the fact that the housing project is taken up and completed by the appellant and M/s Sanghvi Premises (P) Ltd. in their joint venture. 4. On the facts and in the circumstances of the case ld. CIT(A) has erred in assuming and holding that these are two different undertakings/projects, one by M/s Sanghvi Premises (P) Ltd. and second by the appellant. 5. On the facts and in the circumstances of the case the ld. CIT(A) has erred in denying the deduction claimed u/s 80IB(10) on ground that the return of income has not been filed within the due date U/S 139(1) as required by section 80AC, refusing to accept the sufficient and reasonable cause occurred in filing the return late and further not appreciating the settled legal position that requirement of filing the return before the due date U/S 80AC is directory and not mandatory.” 3. It is sufficiently clear from the assessee’s averments that the learned lower authorities have declined to entertain its Section 80IB(10) deduction claim for the reason that the same had not been raised in its return filed within the “due date” prescribed under Section 139(1) of the Act. And that the learned lower authorities quote Sections 80A(5) r.w.s. 80AC of the Act. Case law (2019) 107 taxmann.com 220 (Mum) EBR Enterprises vs. Union of India holds that filing of such return under Section 139(1) for claiming Chapter VIA deduction is very much a mandatory condition. We thus adopt stricter direction in light of Commissioner of Customs vs. Dilip Kumar (2018) 9 SCC (FB) and affirm learned lower authorities action rejecting the impugned deduction claimed. 4. Learned counsel next invited our attention to the assessee’s petition dated 23.04.2022 that it had filed an application before the CBDT under Section 119(2)(b) seeking condonation of delay in filing the above statutory return. He clarified that the Board had rejected the same on 11.10.2019. And that the assessee’s Writ Petition No. 1394 of 2021 challenging the same is pending for final adjudication before the hon'ble jurisdictional high court. He therefore sought adjournment to await its final outcome. We find no merit in assessee’s instant adjournment request as its return is found to have been ITA No. 1423/Pun/2017 M/s. Bhatewara Associates 3 filed well beyond the “due date” prescribed in Section 139(1) of the Act. The assessee’s foregoing pleas fail accordingly. 5. This assessee’s appeal is dismissed. Order pronounced in the open court on 4 th May, 2022. Sd/- Sd/- (Dipak P. Ripote) (S.S. Godara) Accountant Member Judicial Member Pune, Dated: 4 th May, 2022 Copy to: 1. The Appellant 2. The Respondent 3. The CIT(A) -6, Pune 4. The Pr.CIT - 5, Pune 5. The DR, “AA” Bench, ITAT, Pune By Order //True Copy// Assistant Registrar ITAT, Pune Benches, Pune n.p.