Mettupakkam Foundation, CHENNAI V. ITO, CHENNAI

ITA 1865/CHNY/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96024 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Bench Allotted: D
• Next Hearing Date: 04-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 30-06-2014
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Reasonable cause; Condonation of delay

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL S M C BENCH : CHENNAI . . . , [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER ] ./ I.T.A.NO.1865/MDS/2014 / ASSESSMENT YEAR : 2009-10 M/S METTUPAKKAM FOUNDATION NO.11 BASEMENT VARSHA APARTMENT 1 ST STREET, NEHRU NAGAR ADYAR, CHENNAI 600 020 VS. THE INCOME TAX OFFICER BUSINESS WARD IV(2) CHENNAI [PAN AAEFM 9675 R] ( ! / APPELLANT) ( '# ! /RESPONDENT) / APPELLANT BY : SHRI S. SRIDHAR, ADVOCATE /RESPONDENT BY : DR. B NISCHAL, JCIT / DATE OF HEARING : 04 - 0 9 - 2015 / DATE OF PRONOUNCEMENT : 11 - 0 9 - 2015 / O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-VIII, CHE NNAI, DATED 27.3.2013 FOR THE ASSESSMENT YEAR 2009-10. 2. THERE IS A DELAY OF 415 DAYS IN FILING THE APPEAL. THE ASSESSEE FILED AN APPLICATION FOR CONDONATION OF DE LAY. AFTER HEARING BOTH REPRESENTATIVES FOR THE ASSESSEE AND THE REVE NUE, THIS TRIBUNAL FINDS THAT THERE WAS A REASONABLE CAUSE FOR NOT FIL ING THE APPEAL BEFORE ITA NO. 1865/14 :- 2 -: THIS TRIBUNAL. ACCORDINGLY, THE DELAY OF 415 DAYS IS CONDONED AND THE APPEAL IS ADMITTED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF PROPERT Y DEVELOPMENT, FILED ITS RETURN OF INCOME ON 1.10.2009 DECLARING N IL INCOME. SUBSEQUENTLY, NOTICES WERE ISSUED AND THE MATTER WA S SELECTED FOR SCRUTINY. THE ASSESSEE-FIRM CLAIMED DEDUCTION U/ S 80IB(10)OF THE ACT OF ` 12,27,475/-. THE ASSESSEE-FIRM HAS RECEIVED APPR OVAL FOR CONSTRUCTION OF RESIDENTIAL UNITS AND ALSO ELIGIBLE FOR DEDUCTION U/S 80IB(10) OF THE ACT. IN THE COURSE OF HEARING PROCE EDINGS, A QUESTIONNAIRE WAS ISSUED AND THE ASSESSEE-FIRM HAS COMPLIED WITH THE INFORMATION PERTAINING TO HOUSING PROJECTS AND STAT UTORY APPROVALS. FURTHER, IT WAS BROUGHT TO THE KNOWLEDGE OF THE ASS ESSING OFFICER THAT THE ASSESSEE-FIRM HAS MADE A CONDONATION PETITION TO THE CENTRAL BOARD OF DIRECT TAXES (CBDT) U/S 119(2)(C) OF THE ACT ON 3.10.2011 AS STATUTORY REQUIREMENT OF FILING OF RETURN FOR TH E ASSESSMENT YEAR 2009-10 IS ON OR BEFORE 30.9.2009 U/S 139(1)OF TH E ACT HAS NOT BEEN COMPLIED DUE TO TECHNICAL ERROR. THE RETURN COULD N OT BE UPLOADED WITH INCOME-TAX WEBSITE ON 30.9.2009. WITH GREAT DIFFIC ULTY, THE RETURN WAS FILED ON 1.10.2009. PENDING THE ASSESSEES PE TITION U/S 119(2)(C) OF THE ACT BEFORE THE CBDT, THE ASSESSING OFFICER DISALLOWED THE CLAIM ITA NO. 1865/14 :- 3 -: OF THE ASSESSEE AND BROUGHT TO TAX THE NET INC OME FROM BUSINESS AT ` 12,27,475/- AND DETERMINED THE TAX LIABILITY OF ` 5,22,290/-. 4. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, TH E ASSESSEE-FIRM HAS FILED AN APPEAL BEFORE THE CIT(A) BY RAISING VARIOUS GROUNDS. THE CIT(A) HAS MADE A FINDING THAT THE RE TURN WAS NOT FILED WITHIN THE PERIOD PRESCRIBED U/S 139(1) OF THE ACT AND ALSO NO SPECIFIC PROJECT APPROVAL FROM LOCAL AUTHORITY HAS BEEN OBTA INED AND ALSO NOT COMPLIED WITH THE TOTAL BUILT-UP AREA AND TIME LIMI T FOR COMPLETION OF THE PROJECT. IN THE HEARING PROCEEDINGS, THE ASSE SSEE BROUGHT TO THE KNOWLEDGE OF THE CIT(A), THE DIFFICULTY IN NOT FILI NG THE RETURN WITHIN THE TIME U/S 139(1) AND ALSO FILED THE DETAILS OF HOUSING UNITS CONSTRUCTED IN RESPECT OF FEW UNITS AND DISCUSSION WAS MADE FOR PROPORTIONAL DEDUCTION IN RESPECT OF CONSTRUCTION O F UNITS WHERE IT EXCEEDED THE SPECIFIED AREA. ALSO SUPPORTED BY ORD ERS OF CO-ORDINATE BENCH OF JURISDICTIONAL ITAT. ON MERITS, THE ASSE SSEE HAS A GOOD CASE DULY SUBSTANTIATING WITH CASE LAWS. THE CIT(A) ALSO PERUSED THE APPLICATION MADE BY THE ASSESSEE U/S 119(2)(C) OF THE ACT BEFORE THE CBDT FOR CONDONATION OF DELAY IN FILING THE RETURN BELATEDLY. SINCE THE APPLICATION IS PENDING BEFORE THE CBDT, THE CIT(A) DISALLOWED THE CLAIM OF THE ASSESSEE AND DISMISSED THE APPEAL. A GGRIEVED BY THE ORDER, THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. ITA NO. 1865/14 :- 4 -: 5. DURING THE COURSE OF HEARING, THE LD. COUNSEL IN HI S SUBMISSIONS STATED THAT THE ORDER WAS RECEIVED FROM CBDT IN RESPECT OF THE APPLICATION MADE FOR CONDONATION OF DELAY FO R CLAIMING DEDUCTION U/S 80IB(10). THE COPY OF THE ORDER DAT ED 26.11.2014 OF CBDT WAS PRODUCED BEFORE THE TRIBUNAL AND REQUESTED TO PASS THE ORDER ON MERITS. 6. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE O RDERS OF THE LOWER AUTHORITIES AND OBJECTED TO THE REQUEST M ADE BY THE LD. COUNSEL FOR DISPOSAL OF APPEAL ON MERITS. 7. THE TRIBUNAL, AFTER HEARING THE RIVAL SUBMISSIONS O F THE PARTIES AND ALSO PERUSING THE MATERIAL EVIDENCE AVA ILABLE ON RECORD WITH RESPECT TO GENUINE HARDSHIP OF THE ASSESSEE-F IRM IN FILING THE RETURN OF INCOME BELATEDLY AND ADJUDICATION OF FACT S BY THE ASSESSING OFFICER AND THE CIT(A) AND CONSIDERING THE APPLICAT ION MADE BY THE ASSESSEE U/S 119(2)(C) OF THE ACT BEFORE THE CBDT, IS OF THE OPINION THAT THE ASSESSING OFFICER HAS TO CONSIDER THE ORD ER DATED 26.11.2014, OF THE CBDT AUTHORIZING THE ASSESSING OFFICER TO A DMIT THE RETURN OF INCOME FOR ASSESSMENT YEAR 2009-10 FILED BY THE AS SESSEE ON 1.10.2009 AS HAVING BEEN FILED WITHIN THE DUE DATE U/S 139(1) OF THE ACT AND DEAL WITH THE RETURN ON MERITS IN ACCORDANC E WITH LAW. ON THESE FACTS AND CIRCUMSTANCES, THE TRIBUNAL SET ASI DE THE ORDER OF THE ITA NO. 1865/14 :- 5 -: CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AS SESSING OFFICER TO CONSIDER THE ABOVE ORDER OF THE CBDT AND PASS A SPE AKING ORDER ON MERITS BY PROVIDING ADEQUATE OPPORTUNITY TO THE AS SESSEE. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH SEPTEMBER, 2015, AT CHENNAI. SD/- ( . . . ! ) (N.R.S. GANESAN) / JUDICIAL MEMBER '# / CHENNAI $% / DATED: 11 TH SEPTEMBER, 2015 RD %&'' ()'*) / COPY TO: ' 1 . / APPELLANT 4. ' + / CIT 2. / RESPONDENT 5. ),-' . / DR 3. ' +'/! / CIT(A) 6. -0'1 / GF