Affine Steels Pvt. Ltd., Haridwar V. ACIT, Muzaffarnagar

ITA 1449/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3761 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 09-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 119(2)(b); 80IC; 139(1); 80IC; 13; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SH. AMIT SHUKLA, JUDICIAL MEMBER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER ITA NO. 1449/DEL/2017:ASSTT. YEAR : 2012- 13 AFFINE STEELS PRIVATE LIMITED, PLOT NO. 98, SEC. 7, IIE, SIDCUL, HARIDWAR-249403 VS ACIT, CIRCLE-1, MUZAFFARNAGAR (APPELLANT (RESPONDENT) PAN NO. AAECA8267A ASSESSEE BY : NONE REVENUE BY : SH. RAJESH KUMAR, SR. DR DATE OF HEARING: 19.02.2020 DATE OF PRONOUNCEMENT: 28.02.2020 ORDER PER DR. B. R. R. KUMAR, ACCOUNTANT MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDERS OF THE LD. CIT(A), MUZAFFARNAGAR DATED 15.12 .2016. 2. FOLLOWING GROUNDS HAVE BEEN RAISED BY THE ASSESS EE: 1. THAT THE LEARNED CIT(A) HAS ERRED ON FACTS AND LAW IN DISALLOWING DEDUCTION U/S 80 IC OF THE INCOM E TAX ACT 1961, DUE TO THE LATE FILLING OF RETURN, BY OVERLOOKING FACTS OF THE CASE AND NOT CONSIDERING C ASE LAWS AND OTHER SUPPORTING DOCUMENTS. 3. FOR THE YEAR UNDER CONSIDERATION, THE ASSESSEE C OMPANY HAS CLAIMED DEDUCTION U/S 80IC AMOUNTING TO RS.7,52,173/- @ 30% OF THE ELIGIBLE PROFITS. FOR THE INSTANT YEAR, THE DUE DATE FOR FIL ING OF RETURN U/S 139(1) OF THE INCOME TAX ACT, 1961 WAS 30.09.2012 WHEREAS THE RETURN HAS BEEN FILED ON 28.10.2012. OWING TO THE DELAY OF 28 DAYS THE ASSESSING OFFICER DISALLOWED THE DEDUCTION U/S 80IC RELYING ON THE PR OVISIONS OF SECTION ITA NO. 1449/DEL/2017 AFFINE STEELS PVT. LTD. 2 80AC. THE LD. CIT (A) CONFIRMED THE ADDITION ON THE GROUNDS THAT THE ASSESSEE COULD NOT SUBSTANTIATE THE REASONS FOR DEL AY IN FILING OF THE APPEAL. 4. WE FIND FROM THE RECORDS THAT THE AUDIT WAS COMP LETED ON 24.08.2012 AND THE PAPERS WERE HANDED OVER TO THE C OUNSEL FOR FILING OF THE RETURN WHICH COULD NOT BE DONE DUE TO SYSTEMS E RROR ON THE LAST DATE OF FILING OF THE RETURN. 5. IN THE CASE OF M/S. FIBERFILL ENGINEERS VS. DEPU TY COMMISSIONER OF INCOME TAX IN W.P. (C) NO. 3935/2015 DATED 10.08.20 17, THE HONBLE JURISDICTIONAL HIGH COURT OBSERVED THAT WHEN THE DE PARTMENT FOR AY 2010- 11 ACCEPTED THAT ON MERITS THE PETITIONERS CLAIM F OR DEDUCTION UNDER SECTION 80 IC OF THE ACT WAS JUSTIFIED. WITH THERE BEING NO CHANGE IN THE CIRCUMSTANCES, THE PETITIONERS CLAIM FOR DEDUCTION UNDER SECTION 80 IC OF THE ACT ON MERITS FOR THE NEXT YEAR I.E. AY 2011-12 COULD NOT POSSIBLY BE DENIED. THE HONBLE HIGH COURT NOTED THAT THE ABOVE FACTS WERE NOT CONSIDERED BY THE CBDT WHEN IT REJECTED THE PETITIO NERS APPLICATION UNDER SECTION 119(2)(B) OF THE ACT. THE APPLICATION MADE BY THE PETITIONER BEFORE THE CBDT PURSUANT TO THE ORDER PASSED BY THE HIGH COURT WAS A DETAILED ONE. THE PETITIONER POINTED OUT THAT IN AL L THE SUBSEQUENT YEARS, I.E., AY 2012-13 UP TO 2016-17, THERE WAS NO DELAY WHATSOEVER IN THE FILING OF THE RETURNS. IT ALSO POINTED OUT THAT SIN CE THE PETITIONER WAS AN ELIGIBLE UNDERTAKING IT COULD NOT BE DENIED THE DED UCTION UNDER SECTION 80IC OF THE ACT. THE ABOVE FACTORS DID NOT APPEAR T O HAVE BEEN TAKEN INTO ACCOUNT BY THE CBDT. 6. THE HONBLE HIGH COURT WAS NOT CONVINCED WITH TH E DEPARTMENT IN THAT CIRCULAR NO.9/2015 OF THE CBDT WOULD NOT APPLY TO THE BELATED FILING OF A RETURN WHERE DEDUCTION IS CLAIMED UNDER SECTIO N 80 IC OF THE ACT AS THE SAID CIRCULAR DOES NOT EXPRESSLY SAY SO. ITA NO. 1449/DEL/2017 AFFINE STEELS PVT. LTD. 3 7. THE HONBLE HIGH COURT FURTHER NOTED THAT AS PER THE HONBLE BOMBAY HIGH COURT, THE PHRASE GENUINE HARDSHIP IN SECTION 119(2)(B) OF THE ACT OUGHT TO BE CONSTRUED LIBERALLY. AS OBSERVE D BY THE SAID HIGH COURT WHEN SUBSTANTIAL JUSTICE AND TECHNICAL CONSIDERATI ONS ARE PITTED AGAINST EACH OTHER, CAUSE OF SUBSTANTIAL JUSTICE DESERVES T O BE PREFERRED, FOR THE OTHER SIDE CANNOT CLAIM TO HAVE VESTED RIGHT IN INJ USTICE BEING DONE BECAUSE OF A NON-DELIBERATE DELAY. 8. THE HONBLE HIGH COURT OPINED THAT SINCE THE ENT ITLEMENT OF THE PETITIONER TO THE DEDUCTION UNDER SECTION 80 IC OF THE ACT EVEN FOR AY 2010-11 HAD NOT BEEN QUESTIONED BY THE DEPARTMENT O N MERITS, THERE WAS NO JUSTIFICATION FOR NOT VIEWING THE DELAY OF 46 DA YS IN FILING THE RETURN TO BE BONA FIDE. IT WAS NOT ONE OF THOSE CASES WHERE T HE DELAY WAS SO EXTRAORDINARY SO AS TO NOT BE CONDONED. IN CONCLUSI ON IT WAS HELD THAT THE CLAIM OF THE PETITIONER FOR DEDUCTION U/S 80IC CANN OT BE DEFEATED ON THE GROUND OF DELAY IN FILING THE RETURN. SIMILARLY, TH E COORDINATE BENCH OF THE ITAT CHANDIGARH IN THE CASE OF SYMBIOSIS PHARMACEU TICALS (P) LTD. VS DCIT (2017) 51 CCH 0632 (CHD-TRIB) HELD THAT THE CL AIM OF THE ASSESSEE OF DEDUCTION COULD NOT BE OUSTED IF THE RETURN HAS BEEN FILED WITHIN THE EXTENDED PERIOD OF SUB SECTION (4) OF SECTION 139 O F THE I.T. ACT. 9. RELIANCE IS ALSO PLACED ON THE DECISION DATED 26 TH JUNE 2013 OF THE ANDHRA PRADESH HIGH COURT IN ITTA NO.114 OF 2013 (CIT V. SRI S VENKATAIAH), THE DECISIONS DATED 29TH APRIL 2013 OF THE ITAT MADRAS IN ITA NO.1214/MDS/2012 (ACIT VS. PRECOT MERIDIAN LTD. ) AND 4TH FEBRUARY 2013 IN ITA NO. 1219-1223/MDS/2012 (ACIT V. V.N. DE VADOSS), THE DECISIONS OF THE ITAT DELHI DATED 30TH JULY 2010 IN ACIT V. DHIR GLOBAL INDUSTRIAL (P) LTD. 133 TTJ (DEL) 580, THE DECISION OF THE BANGALORE ITAT DATED 12TH APRIL 2103 IN M/S VANSHEE BUILDERS & DEV ELOPERS P. LTD. V. CIT 63 SOT 30 DEDUCTION CHAPTER VI-A HAS BEEN ALLOWED W HEREIN THE RETURN ITA NO. 1449/DEL/2017 AFFINE STEELS PVT. LTD. 4 HAS BEEN FILED LATE AGAINST THE STIPULATION MENTION ED IN SECTION 80AC, OWING TO THE BONAFIDE REASONS IN FILING OF THE RETU RN BELATEDLY. THE SUM AND SUBSTANCE OF THE CASES IS THAT, IF THE ASSESSEE IS ELIGIBLE FOR DEDUCTION, THE HYPER TECHNICALITIES SHOULD NOT COME IN THE WAY OF ALLOWING SUCH DEDUCTION TO THE ASSESSEE. 10. IN THE INSTANT CASE, THE TIME LIMIT FOR FILING OF THE RETURN UNDER SUB- SECTION (4) OF THE SECTION 139 OF THE ACT HAS NOT B EEN EXPIRED WHICH ENTITLES THE ASSESSEE FOR DEDUCTION U/S 80IC. IN VI EW OF THIS, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO EX AMINE THE LIMITED ASPECT AS TO WHETHER THE ASSESSEE, OTHERWISE, IS ENTITLED TO CLAIM DEDUCTION US 80IC OF THE ACT AND IF SO FOUND ELIGIBLE, THE ASSES SING OFFICER WILL ALLOW THE CLAIM ACCORDINGLY IRRESPECTIVE OF THE FACT THAT THE RE WAS A DELAY OF 28 DAYS IN FILING THE RETURN OF INCOME BEYOND THE PRESCRIBE D PERIOD UNDER THE PROVISIONS OF SECTION 139(1) OF THE ACT. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28/02/2020. SD/- SD/- (AMIT SHUKLA) (DR . B. R. R. KUMAR) JUDICIAL MEMBER ACCOU NTANT MEMBER DATED: 28/02/2020 *SUBODH* COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR