M/s Bindra Warehousing Corporation, V. Income TAx Officer Ward 1(1),

ITA 153/JAB/2016

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4626 (ITAT-JABALPUR)
• Duration Of Justice: 5 year(s) 2 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SWATI AGARWAL
• Assessee Lawyers: SSH SANJAY MISHRA; RAJESHWAR DAYAL S
• Keywords: Business income; Depreciation; Reason to believe; Reassessment proceedings; TDS; Set aside
• Section: 143(3); 80IB; 80IA; 139(1); 44AB; 147; 148

Judgement Text

ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,1 IN THE INCOME TAX APPELLATE TRIBUNAL, JABALPUR BENCH , JABALPUR (SMC) (THROUGH VIDEO CONFERENCING) BEFORE SH. SANJAY ARORA, HON'BLE ACCOUNTANT MEMBER ITA NO. 153/JAB/2016 ASSESSMENT YEAR : 2008-09 BINDRA WAREHOUSING CORPORATION, ITARSI, HOSHANGABAD (M.P.) [PAN: AAHFB 1982B] VS. INCOME TAX OFFICER, WARD-1(1), ITARSI (M.P.) (APPELLANT) (RESPONDENT) APPELLANT BY S/SH. SANJAY MISHRA & RAJESHWAR DAYAL ADVOCATES RESPONDENT BY SMT. SWATI AGARWAL, SR. DR DATE OF HEARING 03/09/2021 DATE OF PRONOUNCEMENT 30/09/2021 ORDER PER SANJAY ARORA, AM THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-31, NEW DELHI (CAMP BHOPAL) (CIT(A) FOR SHORT) DATED 16.03.2016, DISMISSING T HE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMENT YEAR (AY ) 2008-09 VIDE ORDER DATED 06.12.2010. 2. THE APPEAL RAISES TWO GROUNDS, AS UNDER: 1. THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS ERRE D IN ARBITRARILY CONFORMING THE ADDITION OF RS. 8,43,219/- MADE BY THE LEARNED ASSESSING AUTHORITY BY ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,2 DISALLOWING THE CLAIM OF DEDUCTION U/S 80IB(11A) OF THE I.T. ACT 1961 WHICH IS NEITHER CORRECT NOR JUSTIFIED THEREFORE SAME IS LIABLE TO BE DELETED. 2. THAT THE LEARNED FIRST APPELLATE AUTHORITY HAS E RRED IN ARBITRARILY CONFORMING THE ADDITION OF RS.1,01,259/-MADE IN THE TOTAL INCO ME BY DISALLOWING THE CLAIM OF DEPRECIATION AND IMPOSING THE TAX ON THE S AME WHICH IS NEITHER CORRECT NOR JUSTIFIED THEREFORE SAME IS LIABLE TO B E DELETED . HOWEVER, PRIOR TO ARGUING THE SAME, THE LD. COUNS EL FOR THE ASSESSEE, SHRI MISHRA, WOULD PLEAD FOR ADMISSION OF LEGAL GROUNDS (GDS. 3 & 4), READING AS UNDER, ALSO PRAYING FOR THEIR ADJUDICATION FIRST IN ASMUCH AS THE ACCEPTANCE THEREOF, WHERE SO, WOULD RENDER INFRUCTUOUS THE ADJ UDICATION OF GROUNDS 1 AND 2: 3. THE REOPENING OF CASE U/S. 147 OF THE ACT, IS IL LEGAL AND UNJUSTIFIED BECAUSE NO ADDITIONS HAS BEEN MADE, FOR THE REASONS FOR REC ORDED BY THE ASSESSING OFFICER DATED 04/05/2010. HENCE THE CONSEQUENTIAL A SSESSMENT IS AB-INITIO VOID, AND DESERVES TO BE SET ASIDE. 4. THAT, THE ASSESSMENT OF THE APPELLANT WAS REOPEN ED ON NON-EXISTING AND IRRELEVANT REASONS HENCE THE REOPENING U/S. 147/148 OF THE IT ACT, 1961 AND ASSESSMENT ORDER DATED 06.12.2010 IS ILLEGAL, WITHO UT JURISDICTION AND VOID . 3. GROUNDS 3 AND 4 BEING LEGAL WERE ADMITTED AFTER BRIEF ARGUMENTS. QUA GD. 4, ADVERTING TO THE REASONS RECORDED, REPRODUCE D HEREUNDER, IT WAS SUBMITTED BY SHRI MISHRA, THAT THE ONLY REASON FOR REOPENING THE ASSESSEES ASSESSMENT FOR THE RELEVANT YEAR WAS THE ASSESSEE S TATING PER ITS RETURN OF INCOME OF IT BEING NOT LIABLE TO GET ITS ACCOUNT A UDITED U/S. 44AB OF THE ACT. THIS WAS UNDERSTOOD BY THE ASSESSING OFFICER (AO) A S A NON-CONDUCT OF THE AUDIT THERE-UNDER AND, INEXPLICABLY, AUDIT U/S. 80- IB OF THE ACT AND, CONSEQUENTLY, NON-ELIGIBILITY TO DEDUCTION U/S. 80I B(11A) OF THE ACT, CLAIMED AT RS.8,43,219: (PB-2, PG. 32) THE ASSESSEE IS RUNNING A WAREHOUSE AND HAS FILED R ETURN OF INCOME FOR AY 2008-09 ON 27-9-2008 THROUGH E-FILING. THE ASSESSEE HAS CLA IMED DEDUCTION U/S. 80IB (11A) AND THE WHOLE WAREHOUSE INCOME OF RS. 8,43,219/- IS CLAIMED EXEMPT UNDER THIS SECTION. THE ASSESSEE SHOULD HAVE GOT HIS ACCOUNTS AUDITED BY STATUTORY AUDITOR BEFORE ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,3 THE DUE DATE OF FILING OF IT RETURN. PERUSAL OF RET URN OF INCOME FILED BY THE ASSESSEE REVEALS THAT IN PART A OF GENERAL INFORMATION OF RE TURN, WHERE THERE IS SPECIFIC COLUMN OF DETAILS OF AUDIT U/S. 44AB, THE ASSESSEE HAS SPE CIFICALLY MARKED THAT HE IS NOT LIABLE FOR AUDIT U/S. 44AB. TO CLAIM DEDUCTION U/S 80IB OF THE IT ACT THE ASSES SEE MUST HAVE HIS ACCOUNTS AUDITED BY STATUTORY AUDITOR AS PER THE PROVISIONS OF SECTION 80IB(13) READ WITH SECTION 80IA (7) OF THE IT ACT. THUS THE DEDUCTION/S 80IB ( 11A) IS NOT ALLOWABLE TO THE ASSESSEE. I HAVE THEREFORE REASON TO BELIEVE THAT INCOME OF R S 8,43,219/- CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTIO N 147 OF THE IT ACT 1961. ISSUE NOTICE U/S. 148 FOR THE A.Y. 2008-09 . THERE WAS NO REQUIREMENT, HE WOULD CONTINUE, FOR FU RNISHING THE AUDIT REPORT ALONG WITH THE RETURN OF INCOME, AND TOWARD WHICH H E WOULD DRAW MY ATTENTION TO INSTRUCTIONS FOR FILLING-OUT FORM ITR-5, PLACING A COPY OF THE SAME ON RECORD. THE REASON RECORDED, HE ARGUED, IS THUS INFIRM. MS. AGARWAL, THE LD. SR. DR, WOULD, ON THE OTHER HAND, SUBMIT THAT THE INSTRUCTI ON REFERRED TO BY SH. MISHRA FORMS PART OF THE BOARD CIRCULAR NO. 09/2006, DATED 10/10/2006, PLACING A COPY OF THE SAME ON RECORD, AND WHICH WAS FOR AY 2006-07 (AND NOT FOR AY 2008- 09) AND, TWO, APPLICABLE ONLY TO RETURNS FOR OTHER THAN BUSINESS INCOME, VIZ. IN FORMS 1, 2, 3, AND NOT FORM 5, APPLICABLE TO THE AS SESSEE. ADVERTING TO SECTIONS 80-IB(13) AND 80IA(7), SHE WOULD CONTINUE, THERE WA S THUS NO DICHOTOMY IN LAW, I.E., AS TO THE REQUIREMENT OF FURNISHING THE AUDIT REPORT ALONG WITH THE RETURN OF INCOME FILED ON 27.09.2008, AND WHICH H AD ADMITTEDLY NOT BEEN DONE, ON ONE HAND, AND THE PROCEDURAL REQUIREMENT P ER THE RELEVANT RULE (R. 12) READ WITH THE BOARD INSTRUCTION FOR FILLING-UP THE RETURN FORM IN RESPECT OF BUSINESS INCOME, WHICH ARE THUS IN HARMONY. AS REGA RDS THE VALIDITY OF THE REASON TO BELIEVE, THE REASON RECORDED, AS APPARENT , HAS TWO LIMBS, EACH OF WHICH HAS TO BE GIVEN DUE WEIGHT. THE SECOND LIMB O F THE REASON RECORDED CLEARLY STATES OF NON-COMPLIANCE OF THE PROVISION O F SECTION 80IA(7), SO THAT DEDUCTION U/S. 80IB(11A) IS NOT ADMISSIBLE IN TERMS OF SECTION 80IB(13), WHICH MAKES SOME CLAUSES OF SECTION 80IA, INCLUDING SEC. 80IA(7), APPLICABLE TO A ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,4 CLAIM FOR DEDUCTION U/S. 80IB. HOW COULD THE AO INFER COMPLIANCE OF S. 80IA(7), OR THE CONDUCT OF AUDIT U/S. 80IB, WHERE THE SAME W AS NOT, AS REQUIRED BY LAW, FILED ALONG WITH THE RETURN OF INCOME AND, IN FACT, EVEN THEREAFTER ? 4. I HAVE HEARD THE PARTIES, AND PERUSED THE MATERI AL ON RECORD. 4.1 IT WOULD BE RELEVANT TO REPRODUCE THE RELEVANT PROVISIONS OF LAW, AS UNDER: 80-IA. DEDUCTIONS IN RESPECT OF PROFITS AND GAINS F ROM INDUSTRIAL UNDERTAKINGS OR ENTERPRISES ENGAGED IN INFRASTRUCTURE DEVELOPMENT, ETC. (7) THE DEDUCTION UNDER SUB-SECTION (1) FROM PROFIT S AND GAINS DERIVED FROM AN UNDERTAKING SHALL NOT BE ADMISSIBLE UNLESS THE ACCOUNTS OF THE UNDERTAKING FOR THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR FOR W HICH THE DEDUCTION IS CLAIMED HAVE BEEN AUDITED BY AN ACCOUNTANT, AS DEFINED IN THE EX PLANATION BELOW SUB-SECTION (2) OF SECTION 288, AND THE ASSESSE FURNISHES, ALONG WITH THE RETURN OF INCOME, THE REPORT OF SUCH AUDIT IN THE PRESCRIBED FORM DULY SIGNED AND V ERIFIED BY SUCH ACCOUNTANT. DEDUCTION IN RESPECT OF PROFITS AND GAINS FROM CERT AIN INDUSTRIAL UNDERTAKINGS OTHER THAN INFRASTRUCTURE DEVELOPMENT UNDERTAKINGS. 80-IB (1) WHERE THE GROSS TOTAL INCOME OF AN ASSESSEE IN CLUDES ANY PROFITS AND GAINS DERIVED FROM ANY BUSINESS REFERRED TO IN SUB-SECTIO NS (3) TO (11), (11A) AND (11B) (SUCH BUSINESS BEING HEREINAFTER REFERRED TO AS THE ELIGIBLE BUSINESS), THERE SHALL, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF TH IS SECTION, BE ALLOWED, IN COMPUTING THE TOTAL INCOME OF THE ASSESSEE, A DEDUC TION FROM SUCH PROFITS AND GAINS OF AN AMOUNT EQUAL TO SUCH PERCENTAGE AND FOR SUCH NUM BER OF ASSESSMENT YEARS AS SPECIFIED IN THIS SECTION. (2) TO (12) (13) THE PROVISIONS CONTAINED IN SUB-SECTION (5) AN D SUB-SECTIONS (7) TO (12) OF SECTION 80-IA SHALL, SO FAR AS MAY BE, APPLY TO THE ELIGIBL E BUSINESS UNDER THIS SECTION. 4.2 QUA THE FIRST LIMB OF THE REASON RECORDED, WHEN THE AS SESSEE STATES IN ITS RETURN OF INCOME A DULY VERIFIED DOCUMENT, THAT IT IS NOT LIABLE TO GET ITS ACCOUNTS AUDITED U/S. 44AB, IT ONLY MEANS THAT, IN VIEW OF THE ASSESSEE, THE SAID PROVISION IS NOT APPLICABLE THERETO FOR THE RELEVAN T YEAR. THE ONLY INFERENCE ARISING FROM THE SAID STATEMENT BY THE ASSESSEE IN ITS RETURN, WHICH IS TO BE REGARDED AS TRUE AND, FURTHER, ONLY WHERE THE AO HA S REASON/S TO BELIEVE OF THE ASSESSEE BEING, ON THE CONTRARY, LIABLE TO GET ITS ACCOUNT AUDITED U/S. 44AB, IS ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,5 THAT THE ASSESSEE HAS NOT COMPLIED WITH THE PROVISI ONS OF THE SAID SECTION. THERE IS NO INCOME IMPLICATION, EVEN AS NONE EMANATES FRO M THE (PART OF THE) SAID REASON, AS RECORDED, AS WELL. THE ASSESSEE MAY AT B EST BE LIABLE TO PENALTY U/S. 271B. THE FIRST LIMB OF THE REASON RECORDED, IS, TH US, CLEARLY NOT VALID. 4.3 THE SECOND LIMB OF THE REASON RECORDED, TO BE R EAD ON ITS TERMS, CONCERNS THE REQUIREMENT FOR ELIGIBILITY FOR DEDUCTION U/S. 80-IB. THE ASSESSEES CONTENTION THAT THE REASON RECORDED ONLY SPEAKS OF THE REQUIREMENT OF AUDIT (U/S. 80IB), WHICH HAD IN FACT BEEN UNDERTAKEN, THOUGH TH E AUDIT REPORT NOT FURNISHED ALONG WITH THE RETURN OF INCOME, BUT ONLY DURING TH E REASSESSMENT PROCEEDINGS, SO THAT THE REASON DOES NOT HOLD, CANNOT BE ACCEPTE D. THE REASON, READ HOLISTICALLY, SPEAKS OF NON-COMPLIANCE OF THE STATU TORY PROVISIONS OF SECTION 80IB(13) READ WITH S. 80IA(7); IT NOTING A FAILURE TO COMPLY WITH THE SAID PROVISIONS. WHEN THE REASON, AS RECORDED, ADVERTS T O THESE PROVISIONS, THE SAME HAVE TO BE NECESSARILY READ INTO THE SAID REASON, A ND WHICH EXPLAINS THE REPRODUCTION THEREOF HEREINBEFORE. THE REQUIREMENT OF LAW IS, AS APPARENT, TWO- FOLD . THE FIRST REQUIREMENT IS TO GET THE ACCOUNTS AUDI TED U/S. 80-IB AND OBTAIN THE AUDIT REPORT, DULY VERIFIED, IN THE PRESCRIBED FORM AND, TWO, TO FURNISH THE SAME ALONG WITH THE RETURN OF INCOME. SECTION 80AC PROSCRIBES DEDUCTION UNDER, AMONG OTHERS, SECTION 80-IB, WHERE THE RETUR N OF INCOME IS NOT FURNISHED BY THE DUE DATE OF FILING THE RETURN U/S. 139(1). I MPLICIT THEREIN IS THE REQUIREMENT TO GET THE ACCOUNTS AUDITED U/S. 80-IB BY THE SAID DATE. THE RELEVANT RULE (R.18BBB) PRESCRIBES FORM 10CCB (FOR DEDUCTION U/S. 80-IB). THE SAME, I.E., THE AUDIT REPORT (IN THE SAID OR ANY OTHER FO RM) WAS ADMITTEDLY NOT SUBMITTED ALONG WITH THE RETURN OF INCOME, FURNISHED ELECTRON ICALLY ON 27.9.2008 (AND PHYSICALLY ON 10/10/2008), OR EVEN BY THE DUE DATE U/S. 139(1) (30.09.2008), OR EVEN BY 20.01.2010, THE DATE OF RECORDING OF THE RE ASON TO BELIEVE. BOTH THE CONDITIONS OF SECTION 80-IA(7) ARE, THUS, AS PER TH E REASON RECORDED, NOT MET. ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,6 AT THIS STAGE, ONE MAY ADVERT TO THE BOARD INSTRUCT IONS (COPY ON RECORD) REFERRED TO AND RELIED UPON BY THE LD. COUNSEL, SH. MISHRA, DURING HEARING, BEING, CONTRARY TO WHAT THE LD. SR. DR CONTENDED, FOR AY 2 008-09 (ALSO AT 302 ITR (ST.) 151-276). THE SAME, AS CLARIFIED THEREIN (PAR A 1), ARE NON-STATUTORY IN CHARACTER, TO BE TAKEN AS A GUIDELINE FOR FILLING-U P FORMS ITR 1 TO 8, NOTIFIED BY THE BOARD PER NOTIFICATION NO. 752(E), DATED 25/3/2 008, IN EXERCISE OF ITS POWERS U/S. 295 OF THE ACT, WHICH CONFERS POWER TO THE BOARD TO, SUBJECT TO THE CONTROL OF THE CENTRAL GOVERNMENT, MAKE RULES FOR T HE WHOLE OR PART OF INDIA FOR CARRYING OUT THE PURPOSES OF THE ACT BY NOTIFICATIO N IN THE GAZETTE OF INDIA. THE INSTRUCTIONS PROVIDE FOR BOTH PAPER-LESS (I.E., ELE CTRONICALLY) AS WELL AS PAPER RETURNS FOR RETURNING INCOME UNDER DIFFERENT HEADS OF INCOME AND BY DIFFERENT CLASSES OF PERSONS, INCLUDING BUSINESS INCOME BY, A MONG OTHERS, FIRMS, I.E., ITR- 5 (PARA 5). HOWEVER, IN EITHER CASE, I.E., PAPER OR ELECTRONIC, THESE ARE ANNEXURE- LESS, I.E., WITHOUT ANY DOCUMENTS, VIZ. AUDITED ACC OUNTS, AUDIT REPORTS, TDS/TCS CHALLANS, RECEIPTS, ETC. REQUIRED TO BE FURNISHED A LONG WITH THE RETURN OF INCOME, CLARIFYING THAT THE DEPARTMENTAL OFFICIALS HAVE BEE N INSTRUCTED TO DETACH SUCH DOCUMENTS WHERE FILED ALONG WITH THE RETURN FORMS ( PARA 4). HOW, PRAY, THEN, COULD THE ASSESSEE FURNISH THE AUDIT REPORT U/S. 80 -IB, I.E., AS REQUIRED BY SS. 80- IB(13) R/W S. 80-IA(7)? HOW, AGAIN, ONE MAY ASK, DOES THE SAID NON-FURNISHI NG LEAD TO THE REASON TO BELIEVE NON-CONDUCT OF AUDIT U/S. 80-IB AND, THUS, NON- ELIGIBILITY TO DEDUCTION U/S. 80-IB(11A) ? THE SECOND LIMB OF THE REASON RECORDED APPEARS INFIRM. THE MATTER IN VIEW OF THE CLEAR MANDATE OF LAW (S. 80-IB(13) R/W S.80- IA(7)) REQUIRES A CLOSER LOOK. SOMETHING, SURELY, I S AMISS, AS, RATHER THAN BEING FACILITATIVE, PROVIDING MECHANISM FOR ITS COMPLIANC E, THE INSTRUCTIONS ARE DISABLING AND IN CONFLICT WITH THE SUBSTANTIVE LAW, WHICH WOULD IN THAT CASE PREVAIL. NO DOUBT, PARA 1 OF THE INSTRUCTION, CLARI FYING THE LEGAL STATUS THEREOF, STATES THAT IN CASE OF DOUBT REFERENCE BE MADE TO T HE PROVISIONS OF THE ACT AND ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,7 THE INCOME-TAX RULES, 1962. FURTHER, PARA 10(1)(B)( VI) OF THE INSTRUCTION, EXPLAINING THE SCHEME OF THE LAW, STATES THAT DEDUC TIONS U/C. VI-A OF THE ACT (WHICH CHAPTER CONTAINS SS. 80-IA, 80-IB) BE CLAIME D FROM THE GROSS TOTAL INCOME BY FOLLOWING THE PROCEDURE PRESCRIBED BY LAW . WHAT, HOWEVER, WHEN THE BOARD, WHOSE RULE-MAKING POWERS ARE FOR THE PURPOSE S OF THE ACT, ITSELF PROVIDES FOR, CONTRARY TO THE PROCEDURE PER THE EXP RESS PROVISION OF LAW, ANNEXURE-LESS RETURNS? A PROCEDURE, IN ANY CASE, IS ONE WHICH COULD BE FOLLOWED, I.E., TO THE EXTENT POSSIBLE, OR PRACTICA BLY SO. A BROWSE OF THE ACT CLEARS ANY VESTIGE OF DOUBT. THE INSTRUCTION IS WHO LLY IN TERMS OF AND CONSISTENT WITH THE ACT. SECTIONS 139C & 139D STAND COOPTED ON THE STATUTE BY FINANCE ACT, 2007, W.R.E.F. 01/6/2006, AND PROVIDE FOR THE POWER TO THE BOARD FOR SPECIFYING PERSONS OR CLASSES OF PERSONS NOT REQUIR ED TO FURNISH DOCUMENTS, STATEMENTS, RECEIPTS, AUDIT REPORTS, ETC., REQUIRED TO BE FURNISHED ALONG WITH THE RETURN OF INCOME BY OR UNDER THE OTHER PROVISIONS O F THE ACT, BUT ON DEMAND PRODUCE THE SAME BEFORE THE ASSESSING OFFICER, I.E. , IN RESPECT OF ELECTRONIC AND PAPER RETURNS. SECTION 295(2), WHICH DEFINES THE AR EAS OR MATTERS QUA WHICH THE BOARD MAY FRAME RULES, ALSO WITNESSED, SIMULTANEOUS LY, INSERTION OF TWO CORRESPONDING CLAUSES, I.E., CL. (EEBA) AND CL. (EE BB), ONE EACH FOR PAPER AND ELECTRONIC RETURNS. THIS, THEN, RESOLVES ANY AMBIGU ITY OR THE APPARENT CONFLICT BETWEEN THE PROCEDURE/S REQUIRED BY THE ACT AND BY THE BOARD, WHOSE RULE MAKING POWER IS SUBORDINATE TO THE FORMER, AND ADMI TTEDLY FOR CARRYING OUT THE PURPOSES OF THE ACT, AND NOT IN DEROGATION THEREOF. ONE AREA OF CONCERN STILL REMAINS. THE RULE PRESCRI BES FORM ITR-5, WHILE THERE IS NOTHING TO SHOW THAT THE ASSESSEE RETURNED ITS INCOME FOR THE YEAR IN THE SAID FORM. THIS IS RELEVANT AS THE ANNEXURE-LESS RE TURN RULE IS APPLICABLE ONLY TO THE NEW FORMS, I.E., FORM 1 TO FORM 8, DETAILED PER THE SAID NOTIFICATION. HOWEVER, THE BOARD HAS PER ITS CIRCULAR 09/2006, R ELIED UPON BY THE LD. SR. DR, CLARIFIED THAT THE RETURNS IN OLD FORMS WOULD NOT B E VALID, AND THAT THE ASSESSEES ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,8 SHALL BE REQUIRED TO FURNISH RETURNS IN THE NEW FOR MS. THIS IS ONLY IN TERMS OF THE LAW; S. 139(1) PROVIDING FOR FURNISHING THE RETURN OF INCOME IN THE PRESCRIBED FORM. NO DISPUTE OR OBJECTION STANDS RAISED BY THE REVENUE IN THE MATTER, AT ANY STAGE, ACCEPTING THE RETURN FURNISHED AS VALID. THI S IS PARTICULARLY RELEVANT IN VIEW OF S. 80-AC. NO ISSUE QUA THE PRESCRIBED FORM, THEREFORE, OBTAINS. IN THE INSTANT CASE, THE ASSESSEE HAS ACTED CONSIST ENT WITH LAW FURNISHING THE RETURN WITHIN THE PRESCRIBED TIME, IN THE ANNEX URE-LESS MODE; OBTAINED THE AUDIT REPORT IN THE PRESCRIBED FORM (FORM 10CCB) IN TIME (ON 25/8/2008)(PB-1, PGS. 24-29), AND FURNISHED THE SAME BEFORE THE AO A T THE EARLIEST POSSIBLE TIME, I.E., ON 23/2/2010, ALONG WITH THE REPLY IN RESPONS E TO THE NOTICE U/S. 148(1) DATED 20/1/2010 (REFER LETTER DATED 22/6/2010 AT PB -2, PGS. 33-35). NO REASON TO BELIEVE NON-CONDUCT OF AUDIT U/S. 80-IB AND, THUS, NON-ELIGIBILITY TO DEDUCTION THEREUNDER COULD HAVE BEEN, IN VIEW OF THE FOREGOIN G, FORMED BY THE AO, WHO CANNOT BUT BE AWARE OF THE EXTANT PROCEDURE, OR IS REQUIRED TO BE, PARTICULARLY WHEN THE REASON FORMED IS BASED ON THE PROVISIONS O F LAW. AS CLARIFIED BY THE APEX COURT IN JAGANMOHAN RAO (V.) V. CIT [1970] 75 ITR 373 (SC), IT IS ONLY THE TRUE AND CORRECT STATE OF LAW THAT CAN FORM A B ASIS FOR THE REASON TO BELIEVE ESCAPEMENT OF INCOME FROM ASSESSMENT. THE AO, WHERE HE WANTED TO CLEAR HIS DOUBTS IN THE MATTER, OUGHT TO HAVE INQUIRED WITH T HE ASSESSEE, AS U/S. 133(6). NO WONDER, THE LAW STANDS AMENDED SINCE (BY FINANCE AC T, 2020, W.E.F. 01/4/2020), DELINKING THE FURNISHING OF THE AUDIT REPORT FROM T HAT OF THE RETURN OF INCOME, SO THAT BOTH ARE INDEPENDENTLY REQUIRED TO BE FURNISHE D BY THE DUE DATE/S PRESCRIBED IN THEIR RESPECT. THE SECOND LIMB OF THE REASON RECORDED IS, THUS, AL SO NOT VALID. 4.3 THE ASSESSEE, ACCORDINGLY, SUCCEEDS IN ITS LEG AL CHALLENGE PER GD.4, SO THAT THERE IS NO VALID ASSUMPTION OF JURISDICTION U /S. 147 IN THE INSTANT CASE. IN VIEW THEREOF, IT IS NOT NECESSARY TO TRAVEL TO OTHE R GROUNDS (I.E., GDS. 1 TO 3) OF APPEAL, ALSO ARGUED AT THE BAR, WHICH THEREFORE BEC OME INFRUCTUOUS. ITA NO. 153/JAB/2016 (AY 2008-09) BINDRA WAREHOUSING CORPORATION V. ITO ,9 5. I WISH TO, HOWEVER, BEFORE PARTING WITH THIS ORD ER, EXPRESS MY CONCERN AT THE STATE OF REPRESENTATION BEFORE THIS TRIBUNAL. S H. MISHRA, WHILE BRINGING OUT THE RELEVANT INSTRUCTION, FAILED TO BRING IT WITHIN THE LEGAL FRAMEWORK; RATHER, CONCEDING, ON BEING ASKED DURING HEARING, TO THERE BEING A CONFLICT BETWEEN THE PROVISIONS OF THE ACT AND THE BOARD INSTRUCTION, WH ICH HAVE NO LEGAL STATUS. THAT THE INCOME STANDS RETURNED IN THE NEW FORM (IT R-5) IS ALSO NOT EXHIBITED. MS. AGARWAL, THE LD. SR. DR, ALSO DID NOT HELP MATT ERS WHEN SHE SUBMITTED, INCORRECTLY, AND TO NO REBUTTAL BY THE LD. COUNSEL, THAT THE INSTRUCTION BEING REFERRED TO BY HIM IS A PART OF THE BOARD CIRCULAR 09/2006, APPLICABLE TO AY 2006-07, AND NOT TO THE CURRENT YEAR. THE WHOLE PRE MISE OF REPRESENTATION, IT NEEDS TO BE APPRECIATED, IS TO ASSIST THE COURT OR TRIBUNAL TO ARRIVE AT THE CORRECT DECISION, I.E., IN ACCORDANCE WITH LAW AND CONSISTE NT WITH THE JUSTICE OF THE CASE. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 30, 2021 SD /- (SANJAY ARORA) A CCOUNTANT MEMBER DATED: 30/9/2021 AKS/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: M/S. BINDRA WAREHOUSING CORPORATION, LAHORIA ROAD, INDUSTRIAL AREA ITARSI, DISST. HOSANGABAD (M. P.) 2. THE RESPONDENT: INCOME TAX OFFICER, WARD-1(1), ITAR SI, HOSANGABAD (M.P.) 3. THE PR. CIT-1, BHOPAL 4. THE CIT(APPEALS)-1, BHOPAL 5. THE SR. DR, ITAT, JABALPUR 6. GUARD FILE // TRUE COPY //