Shri Sunil Kumar Basantilal Prop M/s Satyam Fibers, Barwani V. The DCIT, Khandwa

ITA 162/Ind/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0908 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-12-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PUNEET KUMAR
• Assessee Lawyers: P D NAGAR
• Keywords: Revised return
• Section: 143(3); 54F; 80IB

Judgement Text

[ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE SMC BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER ITA NO.162/IND/2018 ASSESSMENT YEAR: 2011-12 SHRI SUNIL KUMAR AGRAWAL P.D. NAGAR & CO. CHARTERED ACCOUNTANTS 403, CITY PLAZA 564, M.G. ROAD INDORE / VS. DCIT KHANDWA ( APPELLANT ) ( REVENUE ) P.A. NO. ABCPA4537D APPELLANT BY SHRI P.D. NAGAR, A.R. RESPONDENT BY SHRI PUNEET KUMAR, SR. D.R. DATE OF HEARING: 11.12.2019 DATE OF PRONOUNCEMENT: 20.12.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE AGAINST ORDER OF THE CIT(A)-2, INDORE DATED 13.11.2017 PERTAINING TO THE ASSESSMENT YEAR 2011-12. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: [ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] 2 1. THAT THE LEARNED CIT(A) ERRED IN LAW IN CONFIRMING THE DEDUCTION U/S 80IB OF THE ACT AS CLAIMED IN THE ORIGINAL RETURN ON THE GROUND THAT R EVISED RETURN WAS NOT FILED WITHIN THE PRESCRIBED TIME HENCE IT WAS NON-EST AND IT HAD NO MEANING IN THE EYE OF LAW. HE ERRED IN NOT APPRECIATING THAT EVEN IF THE CLAIM MADE BY THE ASSESSEE DOES NOT FORM PART OF THE ORIGINAL RETURN, IT COULD STILL BE CONSIDERED BY TH E APPELLATE AUTHORITIES, IF THE RELEVANT MATERIAL WAS AVAILABLE ON RECORD, OR ON REMAND, BY THE ASSESSING OFFICER. CONFIRMATION OF ASSESSMENT WITHOUT ALLOWING PROPER DEDUCTION U/S 80IB OF THE ACT SUPPORTED BY REVISED REPORT IN FORM 10 CCB IS UNJUSTIFIED AND BAD IN LAW . 2. THE APPELLANT FURTHER CRAVES LEAVE TO ADD, ALTER AN D/OR TO AMEND THE AFORESAID GROUNDS OF APPEAL AS AND WHEN REQUIRED. 2. THE ONLY EFFECTIVE GROUND IN THIS APPEAL IS AGAINST DISALLOWANCE OF DEDUCTION U/S 80IB OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). THE FACTS GIVI NG RISE TO THE PRESENT APPEAL ARE THAT CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY ASSESSMENT. THE ASSESSMENT U/ S 143(3) OF THE ACT WAS FRAMED VIDE ORDER DATED 28.3.20 14 PERTAINING TO THE ASSESSMENT YEAR 2011-12. WHILE FRAMI NG THE ASSESSMENT, THE A.O. ACCEPTED THE RETURN FILED BY THE ASSESSEE. THE ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A ) ON THE GROUND THAT THE A.O. HAD ALLOWED THE DEDUCTION OF RS.2,92,997/- AS AGAINST RS.7,18,903/- AS CLAIMED BY THE ASSESSEE IN THE REVISED RETURN. HOWEVER, THE LD. CI T(A) DISMISSED THE APPEAL ON THE GROUND THAT THE REVISED RE TURN [ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] 3 SO FILED WAS NON-EST. THUS, THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 3. LD. COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE JUDGEMENT OF THE HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (P ) LTD. (2012) 349 ITR 336. LD. COUNSEL FOR THE ASSESSEE ALS O HAS PLACED RELIANCE ON THE DECISION OF THE COORDINATE BENC H RENDERED IN THE CASE OF RAJRATAN GLOBAL WIRE LD. VS. AC IT INDORE IN ITA NO.589/IND/2017 DATED 18.10.2018 AND DECISION OF COORDINATE BENCH RENDERED IN THE CASE OF MANOHAR REDDY BASANI VS. ITO (2018) 171 ITD 279 (HYD). LD. CIT(A) DISMISSED THE CLAIM OF THE ASSESSEE BY OBS ERVING AS UNDER IN PARA-5.1 OF THE IMPUGNED ORDER: THE A.O. HAS MENTIONED IN HIS REMAND REPORT THAT I N THIS CASE, THE RETURN WAS FILED ON 30.90.2011 ON THE TOTAL INCOME OF RS.44,18,340/- AFTER CLAIMING DEDUCTION U/S CHAPTER VI AT RS.4,07,997/-. A CLAIM OF DEDUCTION U/S 80IB AT RS .2,92,997/- WAS ALSO INCLUDED IN TOTAL AMOUNT OF DEDUCTION AT RS.4, 07,997/-. FURTHER, THE A.O. HAS SUBMITTED IN REPORT THAT THE APPELLANT HAD ALSO FILED AUDIT REPORT IN FORM NO.10CCB DATED 5.9.2011 FOR THE DEDUCTION QUANTIFIED AT RS.2,92,996/- AGAINST DERIV ED FROM ELIGIBLE BUSINESS QT RS.11,71,986/-. HOWEVER, THE APPELLANT HAD CLAIMED DEDUCTION U/S 80IB AT RS.7,18,903/- BY FILING A REV ISED RETURN ON [ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] 4 21.01.2014. THE RETURN FILED ON 21.01.2014 WAS A N ON-EST AND IT HAD NO MEANING IN THE EYE OF LAW. THE A.O. HAS STA TED IN REPORT THAT THE RETURN FOR THE A.Y. 2011-12 WAS FILED ON 30.9.2 011, WITHIN DUE DATE COULD BE REVISED ONLY UPTO 31.3.2013. THE VIE W OF THE A.O. IS FOUND CORRECT BECAUSE THE APPELLANT HAD NOT FILED R EVISED RETURN WITHIN PRESCRIBED TIME LIMIT I.E. 31.3.2013 AND HE HAD FILED RETURN ON 21.1.2014 WHICH WAS APPROXIMATELY 9 MONTHS DELAY FR OM THE PRESCRIBED TIME LIMIT AND THE A.O. HAS ALSO RELIED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOTZE (IND IA) LTD., VS. CIT REPORTED IN 204 CTR (SC) 182 (2005), 284 ITR 323 IN WHICH THE HON'BLE SUPREME COURT HAS HELD THAT:- THE A.O. COULD ENTERTAIN ADDITIONAL CLAIM OF DEDUC TION/EXEMPTION ONLY ON THE BASIS OF REVISED RETURN NOT ON A PETITI ON FILED. 4. THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD. (SUPRA) H AS HELD AS UNDER: 23. IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGEMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER, IT CAN BE MADE BEFORE THE APPELLATE AUTHOR ITIES. THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERT AIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGE MENT. IN FACT, THE SUPREME COURT MADE IT CLEAR THAT THE ISSUE IN T HE CASE WAS LIMITED TO THE POWER OF ASSESSING AUTHORITY AND THA T THE JUDGEMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER SECTION 254. 24. A DIVISION BENCH OF THE DELHI HIGH COURT DEALT WITH A SIMILAR SUBMISSION IN COMMISSIONER OF INCOME-TAX V. JAI PAR ABOLIC SPRINGS LIMITED (2008) 306 ITR 42. THE DIVISION BENCH, IN PARAGRAPH 17 OF THE JUDGEMENT HELD THAT THE SUPREME COURT DISMISSED THE APPEAL MAKING IT CLEAR THAT THE DECISION WAS LIMITED TO TH E POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCT ION OTHERWISE THAN BY A REVISED RETURN AND DID NOT IMPINGE ON THE POWERS OF THE TRIBUNAL. IN PARAGRAPH 19, THE DIVISION BENCH HELD THAT THERE WAS NO PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENT ERTAIN AN [ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] 5 ADDITIONAL GROUND WHICH, ACCORDING TO THE TRIBUNAL, ARISES IN THE MATTER AND FOR THE JUST DECISION OF THE CASE. 5. RELIANCE IS ALSO PLACE IN THE CASE OF M/S. RAJRATAN GLOBAL WIRE LTD. VS. ACIT (SUPRA) AND ALSO THE DECISION OF THIS COORDINATE BENCH IN THE CASE OF MANOHAR REDDY BASANI VS. ITO (SUPRA), WHEREIN THE DEDUCTION U/S 54F OF TH E ACT WAS ALLOWED BY THE TRIBUNAL. 6. I HAVE CONSIDERED THE CASE LAWS AS RELIED BY THE LD . COUNSEL FOR THE ASSESSEE. IN THE LIGHT OF THE JUDGE MENT OF THE HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE O F CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD. (SUPRA), THE FINDING OF THE LD. CIT(A) CANNOT BE SUSTAINED. THERE FORE, I DIRECT THE A.O. TO ALLOW DEDUCTION, IF THE ASSESSEE I S FOUND TO BE ELIGIBLE. GROUND OF THE ASSESSEES APPEAL IS ALL OWED IN TERMS INDICATED ABOVE. [ITA NO.162/IND/2018] [SHRI SUNIL KUMAR AGRAWAL, OZAR] 6 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20 . 12.2019. SD/ - (KUL BHARAT) JUDICIAL MEMBER INDORE; DATED : 20/12/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE