The Asst. CIT, Circle-11(1), Hyderabad V. M/s Noel Pharma, Hyderabad

ITA 1664/HYD/2012

• Counselvise Citation: 166422514 RSA 2012
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 08-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B SHANTI KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO. 1664/HYD/2012 ASSESSMENT YEAR : 2009-10 ASST. COMMISSIONER OF INCOME- TAX, CIRCLE 11(1), HYDERABAD. VS. M/S NOEL PHARMA HYDERABAD. PAN: AAHFN4260C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SOLGY JOSE T KOTTARAM ASSESSEE BY : SHRI B. SHANTI KUMAR DATE OF HEARING : 27-11-2013 DATE OF PRONOUNCEMENT : 29-11-2013 O R D E R PER B. RAMAKOTAIAH, A.M.: THIS IS AN APPEAL BY REVENUE DIRECTED AGAINST THE O RDER OF CIT(A)-VI, HYDERABAD DATED 21-08-2012. THE ISSUE IN THIS APPEAL IS WITH REFERENCE TO THE ALLOWANCE CLAIM U/S 80IC. 2. BRIEFLY STATED, ASSESSEE FILED RETURN OF INCOME ADMITTING NIL INCOME AFTER CLAIMING DEDUCTION OF RS. 4,06,98,440/ - U/S 80IC. THE RETURN WAS FILED ON 01-10-2009 WHEREAS THE DUE DATE FOR FILING THE RETURN WAS ON 30-09-2009. THERE WAS A DELAY OF ONE DAY, WHICH WAS STATED TO BE DUE TO TECHNICAL REASONS WHILE UPLOADI NG E-RETURN. AO FOLLOWING HIS STAND TAKEN IN AY 2008-09 IN THE CASE OF SAME UNIT IN THE HANDS OF THE PROPRIETOR SRI S. VENKATAIAH WHERE IN THERE WAS A DELAY OF 74 DAY, DEDUCTION U/S 80IC WAS DENIED INVO KING THE 2 ITA NO. 1664/HYD/2012 M/S NOEL PHARMA PROVISIONS OF SECTION 80AC OF THE IT ACT. IT WAS TH E AOS CONTENTION THAT RETURN WAS REQUIRED TO BE FILED BEFORE THE DUE DATE AS SPECIFIED U/S 139(1) AND SINCE ASSESSEE HAS FAILED TO DO SO, THE CLAIM WAS DISALLOWED. 3. BEFORE THE LEARNED CIT(A), ASSESSEE CONTENDED TH AT THE DELAY WAS TECHNICAL IN NATURE AS IT WAS ONLY FEW HOURS AN D IT HAPPENED DUE TO DELAY IN UPLOADING THE E-RETURN DUE TO TECHNICAL FACTORS AS IT DID NOT GET THE CONNECTIVITY AT THE RELEVANT POINT OF T IME. EVEN OTHERWISE, IT WAS CONTENDED THAT THE CLAIM CANNOT BE DISALLOWE D MERELY ON TECHNICALITIES AND ASSESSEE IS OTHERWISE ELIGIBLE F OR DEDUCTION. ASSESSEE RELIED ON VARIOUS DECISIONS OF ITAT INCLUD ING THE ORDER IN CASE OF SRI VENKATAIAH, PROPRIETOR, BEFORE IT BECAM E THE PARTNERSHIP FIRM DURING THE YEAR. THE LEARNED CIT(A) ALLOWED TH E CLAIM BY HOLDING AS UNDER: 4.1 I HAVE CONSIDERED THE FACTS ON RECORD AND THE S UBMISSIONS OF THE AR. THIS IS THE FIRST YEAR OF ASSESSMENT OF THE ASSESSEE. FOR THE PRECEDING YEAR, THE BUSINESS HAS BEEN DONE AS A PROPRIETORSHIP OF SRI S. VENKATAIAH. FOR THE AY 200 S-09, SRI S.VENKATAIAH HAD FILED HIS RETURN OF INCOME ON 23.1 2.200S. THE CLAIM OF DEDUCTION U/S. 80IC HAD BEEN DISALLOWED TO HIM FOR THE SAME REASON I.E. THE RETURN HAD NOT BEEN FILED WITH IN THE TIME PRESCRIBED U/S. 139( 1). ON APPEAL, THE ITAT IN ITS ORDER IN ITA NO. 984/HYD/2011, DATED 31.05.2012 REFERRED TO ITS DECISION IN THE CASE OF VEGA CONVEYORS AND AUTOMATION LTD (ITA NO. 1231 & 1199/HYD/2010, DTD. 31.12.2010) AS WELL AS THE DECISION IN THE CASE OF HEMSONS INDUSTRIES [2001] 251 ITR 693{AP) AND HELD THAT THE CLAIM OF THE ASSESSEE CANNOT BE DENIED ON TECHNICALITIES WHEN TH E ASSESSEE IS LEGALLY OTHERWISE ENTITLED FOR DEDUCTION. THE IT AT CONDONED THE DELAY OF 74 DAYS IN FILING OF THE RETURN AND PE RMITTED THE ASSESSEE TO AVAIL DEDUCTION U/S. 80IC. 4.2 IN THE PRESENT APPEAL, FILED BY THE SUCCESSOR FIRM TO THE SAME UNDERTAKING, THE DELAY IS OF ONLY ONE DAY, CLA IMED BY THE ASSESSEE TO HAVE BEEN CAUSED BY THE DETAILED DATA E NTRY REQUIRED FOR E- FILING OF ITS RETURN. IT IS APPAREN T AND UNDISPUTED THAT THERE WAS CONSIDERABLE DELAY IN FILING OF RETU RN FOR THE PRECEDING YEAR INVOLVING RE-ENTRY OF DATA FOR THE E NTIRE YEAR. IT IS, THEREFORE, CONCEIVABLE THAT THE ASSESSEE BEING PREOCCUPIED 3 ITA NO. 1664/HYD/2012 M/S NOEL PHARMA WITH AFFAIRS OF THE PRECEDING YEAR WAS NOT IN A POS ITION TO COMPLETE THE ACCOUNTING AND OTHER REQUIREMENTS FOR FINALISATION OF ITS ACCOUNTS WELL WITHIN TIME. IT I S ALSO RELEVANT TO NOTE THAT THE DELAY IN FILING OF RETURN WAS OF O NLY ONE DAY, INDEED OF A FEW HOURS. THE ASSESSEE'S EXPLANATION T HAT THE DELAY OCCURRED DUE TO THE REQUIREMENT OF EXTENSIVE DATA ENTRY FOR E-FILING APPEARS PLAUSIBLE. FOR THE PRECE DING YEAR, THE ITAT HAS TAKEN NOTE OF THE MITIGATING CIRCUMSTA NCES TO CONDONE THE DELAY IN FILING OF RETURN AND ALLOWED T HE DEDUCTION U/S 80IC. I FIND THAT THE CIRCUMSTANCES F OR THE CURRENT YEAR ARE SIMILAR AND WARRANT A SIMILAR VIEW TO BE TAKEN. 4.3 FURTHER, IN THE OTHER DECISIONS RELIED ON BY THE AR , THE COURTS HAVE HELD THAT THE DUE DATE FOR FURNISHING T HE RETURN OF INCOME AS PER SEC.1 39( 1) IS SUBJECT TO THE EXTENDED PERIOD PROVIDED U/S. 139( 4). FOLLOWING THIS INTERPRETATION, THE ASSESSEE'S RETURN OF INCOME WAS FILED WELL WITH IN THE TIME REQUIRED TO COMPLY WITH SEC. 80AC. 4.4 IN VIEW OF THE ABOVE, IT IS HELD THAT THE ASSESSEE WAS PREVENTED BY A GENUINE REASON IN FILING THE RETURN OF INCOME WITHIN THE TIME SPECIFIED U/S. 139(1) AND SINCE THE ASSESSEE HAS FILED THE RETURN WITHIN THE EXTENDED TIME ALLOW ED U/S. 139(4), THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IC . 4. AGGRIEVED BY THE ORDER OF CIT(A), THE REVENUE IS IN APPEAL BEFORE US. 5. AFTER CONSIDERING RIVAL CONTENTIONS AND PARTICUL ARLY THE ARGUMENT OF THE LEARNED DR THAT SECTION 80AC REFERS ONLY TO THE DUE DATES FOR FURNISHING RETURN OF INCOME U/S 139(1), WE ARE OF T HE OF THE OPINION THAT THERE IS NO MERIT IN REVENUES APPEAL. AS FAR AS THE DELAY IS CONCERNED, THE DELAY IS NOT BECAUSE OF ANY LAPSE O N THE PART OF ASSESSEE BUT DUE TO TECHNICAL REASONS IN UPLOADING THE RETURN ELECTRONICALLY AND DUE TO DELAY OF FEW HOURS IN GET TING CONNECTIVETY, THE DATE HAS CHANGED FROM 30-09-2009 TO 01-10-2009. IN VIEW OF MITIGATING CIRCUMSTANCES, THE DELAY CAN BE CONDONED . FURTHER, AS RIGHTLY HELD BY THE LEARNED CIT(A), THE COURTS HAVE HELD THAT DUE DATE FOR FURNISHING RETURN OF INCOME AS PER SECTION 139( 1) IS SUBJECT TO EXTENDED PERIOD PROVIDED U/S 139(4). IN VIEW OF THI S REASON ALSO THE 4 ITA NO. 1664/HYD/2012 M/S NOEL PHARMA ORDER OF CIT(A) IS TO BE UPHELD. IN ASSESSEES UNIT S OWN CASE WHEN IT WAS A PROPRIETARY CONCERN OF SRI S. VENKATAIAH IN EARLIER YEAR, ITAT ELABORATELY DISCUSSED THE ISSUE AND UPHELD CIT(A)S ORDER DISMISSING REVENUES APPEAL AS DEVOID OF ANY MERIT. RESPECTFUL LY FOLLOWING THE SAID ORDER OF COORDINATE BENCH, WHICH THE LEARNED C IT(A) ALSO FOLLOWED, WE DISMISS THE GROUNDS RAISED BY REVENUE IN THIS REGARD. 6. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 29 TH NOVEMBER, 2013. SD/- SD/- (SAKTIJIT DEY) (B. RAMAKOTAIA H) JUDICIAL MEMBER ACCOU NTANT MEMBER HYDERABAD, DATED: 29 TH NOVEMBER, 2013. KV COPY TO:- 1) ACIT, CIRCLE 11(1), HYDERABAD. 2) M/S NOEL PHARMA, D.NO. 24-85/7, LAXMINARAYANA NAGAR COLONY, IDA, UPPAL, HYDERABAD 3) CIT(A)-VI, HYDERABAD 4) CIT-V, HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A .T., HYDERABAD.