M/s. Hanuman Filaments Pvt.Ltd., Surat V. The Dy.CIT.,Circle-1, Surat

ITA 188/AHD/2010

• Counselvise Citation: 18820514 RSA 2010
• Duration Of Justice: 1 year(s) 9 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 20-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Question of law; Revised return
• Section: 139(5); 139

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# '#,$% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A. NO.188/AHD/2010 ( # ( # ( # ( # ( / / / / ASSESSMENT YEAR : 2004-05) HANUMAN FILAMENTS PVT.LTD. 208, SHREE SHYAM CHAMBERS OPP. SUBJAIL, RING ROAD, SURAT # # # # / VS. DY.CIT CIRCLE-1 SURAT ) $% ./*+ ./ PAN/GIR NO. : AAACH 5965 N ( ), / // / APPELLANT ) .. ( -.),/ RESPONDENT ) ), / $/ APPELLANT BY : -NONE- (WRITTEN SUBMISSIONS) -.), 0 / $ / RESPONDENT BY : SHRI B.L. YADAV #1 0 %/ // / DATE OF HEARING : 31/10/2011 2'( 0 % / DATE OF PRONOUNCEMENT : 31/10/2011 $3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-I, SURAT DATED 10/12/2009 AND THE GROUNDS RAISED READ AS UNDER:- 1) THAT THE HONBLE C.I.T. (A) HAS ERRED IN SUSTA INING DISALLOWANCE OF DEDUCTION U/S.80IB(4) OF THE ACT OF RS.1,47,718/-. ITA NO .188/AHD/2010 HANUMAN FILAMENTS PVT.LTD. VS. DY.CIT ASST.YEAR 2004-05 - 2 - 2) THAT THE HONBLE C.I.T. (A) HAS ERRED IN SUSTAI NING INTEREST CHARGED U/S.234B OF INCOME TAX ACT, 1961. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) R.W.S. 263 OF THE I.T. ACT, 1961 DATED 31.07.2009 WERE THAT THE ASSESSEE-COMPANY DURING THE YEAR WAS ENGAGED IN THE BUSINESS OF MANUFACTURING OF TEXTURISED AND TWISTED YARN. IT WAS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS CLAI MED A DEDUCTION U/S.80-IB(4) OF RS.3,27,718/-. IT WAS ALSO NOTICED BY THE ASSESSING OFFICER THAT IN RESPECT OF THE SAID CLAIM THE ASSES SEE HAS NOT FURNISHED THE AUDIT REPORT ON THE PRESCRIBED FORM. IT WAS ALSO N OTED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS CLAIMED DEDUCTION U/S .80IB(4) ON THE COMMISSION AMOUNT AS WELL. AS FAR AS THE QUESTION OF CLAIMING OF DEDUCTION IN RESPECT OF THE COMMISSION INCOME, THE SAME WAS SURRENDERED BY THE ASSESSEE AND TO THAT EXTENT THE DEDUCTION WAS WITHDRAWN BY THE ASSESSEE. IN THE RESULT, THE ASS ESSING OFFICER HAS NOT ACCEPTED THE CLAIM OF DEDUCTION U/S.80-IB(4) OF THE ACT PRIMARILY ON THE GROUND THAT THE ASSESSEE HAS FAILED TO FURNISH THE AUDIT REPORT. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHO RITY. 3. THE LD.CIT(A) WAS OF THE VIEW THAT THE ASSESSEE DID NOT HAVE THE TIME TO REVISE THE RETURN AS PER THE AMENDED PROVIS IONS OF LAW WITH EFFECT FROM 01/04/1989 ACCORDING TO WHICH AS PER THE SECTI ON 149(5) OF THE I.T.ACT, THE TIME LIMIT FOR REVISION OF THE RETURN WAS LIMITED TO ONE YEAR AND SINCE THAT TIME HAD ALREADY LAPSED, THEREFORE T HE FURNISHING OF AUDIT REPORT AFTER THE SAID PRESCRIBED LIMIT HAD NO CONSE QUENCE. DUE TO THAT REASON, THE ACTION OF THE ASSESSING OFFICER WAS AFF IRMED. ITA NO .188/AHD/2010 HANUMAN FILAMENTS PVT.LTD. VS. DY.CIT ASST.YEAR 2004-05 - 3 - 4. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE APPELLANT, HOWEVER A WRITTEN SUBMISSION WAS FURNISH ED. FROM THE SIDE OF THE REVENUE, THE LD.DR MR.B.L.YADAV APPEARED AND SU PPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. THE ISSUE OF NON-FURNISHING OF PRESCRIBED REPORT ALONG WITH INCOME-TAX RETURN, BUT FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HAS ALREADY BEEN DEALT WITH BY SEVERAL HONBLE COURTS AND THE LIST IS AS UNDER:- 1. CIT VS. VALLICOTTON TRADERS (P) LTD. (2007) 288 ITR (MAD.) 2. ZENITH PROCESSING MILLS VS. CIT (1996) 219 ITR 721 (GUJ.) 3. CIT VS. GUJARAT OIL AND ALLIED INDUSTRIES (1993) 201 ITR 325 (GUJ.) 4. CIT VS. CONTIMETERS ELECTRICALS PVT.LTD. (2009) 317 ITR 249 (DEL) 5. CIT VS. PANAMA CHEMICALS WORKS (2007) 292 ITR 147 (M.P.) 6. CIT VS. JAYANT PATEL (2001) 248 ITR 199 (MAD.) 7. CIT VS. MAHALAXMI RICE FACTORY (2007) 294 ITR 631 (P&H) 5.1. IN THE CASE OF CIT VS. VALLI COTTON TRADERS P. LTD.(SUPRA), IT WAS HELD AS UNDER:- HELD, THAT SECTION 139(5) OF THE ACT ENABLES THE ASSESSEE , WHO, HAVING FURNISHED A RETURN UNDER SECTION 139(1) OR I N PURSUANCE OF A NOTICE ISSUED UNDER SECTION 142(1), DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, TO FURNISH A REVISED R ETURN AT ANY POINT OF TIME BEFORE THE EXPIRY OF ONE YEAR FROM TH E END OF THE ITA NO .188/AHD/2010 HANUMAN FILAMENTS PVT.LTD. VS. DY.CIT ASST.YEAR 2004-05 - 4 - ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE AT, WHICHEVER IS EARLIER AND SECTION 139(9) OF THE ACT PROVIDES THAT WHERE THE ASSESSING OFFICER CONSIDERS THE RETURN OF INCOME FU RNISHED BY THE ASSESSEE AS DEFECTIVE, HE MAY INTIMATE THE DEFECT T O THE ASSESSEE AND GIVE HIM AN OPPORTUNITY TO RECTIFY THE DEFECT W ITHIN A PERIOD OF FIFTEEN DAYS FROM THE DATE OF SUCH INTIMATION. A H ARMONIOUS CONSTRUCTION OF SUB-SECTIONS (5) AND (9) OF SECTION 139 OF THE ACT WOULD GO TO SHOW THAT THE POWER CONFERRED ON THE AS SESSING OFFICER UNDER SUB-SECTION (9) HAS TO BE READ WITH S UB-SECTION (5), IN WHICH EVENT, THE CONSEQUENCE WOULD BE THAT AS PE R SUB-SECTION (5), THE ASSESSEE HIMSELF COULD VOLUNTARILY FILE A REVISED RETURN, IF HE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT IN THE ORIGINAL RETURN OR ALTERNATIVELY, AS PER SUB-SECTION (9), IF THE ASSESSING OFFICER CONSIDERS THE RETURN OF INCOME FURNISHED BY THE ASSESSEE DEFECTIVE, HE MAY INTIMATE THE DEFECT TO THE ASSESS EE AND GIVEN AN OPPORTUNITY TO RECTIFY THE DEFECT WITHIN A PERIOD O F FIFTEEN DAYS FROM THE DATE OF SUCH INTIMATION OR WITHIN SUCH FUR THER PERIOD WHICH HE MAY ALLOW, ON AN APPLICATION MADE IN THIS BEHALF. 5.2. IN THE CASE OF CIT VS. CONTIMETERS ELECTRICALS P.LTD.(SUPRA), IT WAS HELD AS UNDER:- HELD, DISMISSING THE APPEAL, THAT THE TRIBUNAL HAD ARRIVE D AT THE CORRECT CONCLUSION THAT THE REQUIREMENT OF FILING T HE AUDIT REPORT ALONG WITH THE RETURN WAS NOT MANDATORY BUT DIRECTO RY AND THAT IF THE AUDIT REPORT WAS FILED AT ANY TIME BEFORE THE F RAMING OF THE ASSESSMENT, THE REQUIREMENT OF SECTION 80-IA(7) WOU LD BE MET. THE TRIBUNAL WAS ALSO RIGHT IN HOLDING THAT THE COMMISS IONER DID NOT EVEN CALL FOR ANY EXPLANATION OF THE A AND THE ISSU E OF FULFILLMENT OF THE CONDITIONS OF SECTION 80-IA HAD NOT BEEN PART O F THE SHOW- CAUSE NOTICE. THEREFORE, IT COULD NOT FORM THE BAS IS FOR REVISION OF THE ASSESSMENT ORDER UNDER SECTION 263. NO SUBSTA NTIAL QUESTION OF LAW AROSE. 6. SINCE THE ADMITTED FACTUAL POSITION IS THAT THE IMPUGNED AUDIT REPORT WAS FURNISHED BY THE ASSESSEE DURING THE ASS ESSMENT PROCEEDINGS, THEREFORE THE REASON ASSIGNED BY THE AUTHORITIES BE LOW FOR REJECTION OF THE ITA NO .188/AHD/2010 HANUMAN FILAMENTS PVT.LTD. VS. DY.CIT ASST.YEAR 2004-05 - 5 - CLAIM CANNOT BE APPROVED BY RESPECTFULLY FOLLOWING THE ABOVE DECISIONS. WE HEREBY REVERSE THE FINDINGS OF THE AUTHORITIES B ELOW AND DIRECT TO ALLOW THE CLAIM TO THE EXTENT IT WAS ADMISSIBLE AS PER LAW. GROUND IS ALLOWED. REST OF THE GROUNDS ARE CONSEQUENTIAL IN NATURE, HENCE NEEDS NO INDEPENDENT ADJUDICATION AT THIS STAGE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. SD/- SD/- (A. MOHAN ALANKAMONY) (MUKUL KR. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 31/ 10 /2011 4..#, .#../ T.C. NAIR, SR. PS $3 0 -5 6$5( $3 0 -5 6$5( $3 0 -5 6$5( $3 0 -5 6$5(/ COPY OF THE ORDER FORWARDED TO : 1. ), / THE APPELLANT 2. -.), / THE RESPONDENT. 3. 7 / CONCERNED CIT 4. 7() / THE CIT(A)-I, SURAT 5. 5:; -# , , / DR, ITAT, AHMEDABAD 6. ; <1 / GUARD FILE. $3# $3# $3# $3# / BY ORDER, .5 - //TRUE COPY// = == =/ // / * * * * ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION..31.10.2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 31.10.2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 31.10.2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 31.10.2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER