St. John Freight Systems Ltd., Tuticorin V. DCIT Central Circle 1, Madurai

ITA 188/CHNY/2019

AI Insights

The case involves appeals by M/s. St. John Freight \\u2013 Systems Pvt. Ltd. against the orders of the Commissioner of Income Tax (Appeals), which arose from the orders passed by the Assessing Officer under sections 143(3) read with section 147 of the Income Tax Act, 1961 for the assessment years 2007-08 to 2010-11. The primary issues revolved around the eligibility for deduction under section 80IA(4) of the Act, the validity of reopening the assessment beyond four years, and the requirement of filing the return within the due date as specified under section 139(1) and section 80AC. The Tribunal considered various judicial precedents and the specific provisions of the Income Tax Act, leading to a decision that partly favored the assessee.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135793 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: B
• Next Hearing Date: 12-03-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 24-01-2019
• Other Referred Cases: ACIT Vs. V.N. Devadoss [2013] 32 taxmann.com 133 (Chennai - Trib.), CIT v A.L.Logistics in TC(A) No.1031 of 2014 dt 23.12.2014, Container Corporation of India Ltd v ACIT 346 ITR 140 (Del), CIT v. Valli Cotton Trader (P) Ltd, CSEC Ltd. Vs. DCIT, CIT V. Jayant Patel, Saffire Garments v. ITO, K.P. Varghese v. ITO, PCIT-III, Bangalore and another V. M/s Wipro Limited
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Search and seizure; Competent authority; Revised return; Reassessment proceedings; TDS; Set aside
• Section: 147; 132; 154; 139; 143(3); 80HHC; 153A; 80IB; 10B; 80IA; 201; 139(1); 43; 73; 13; 22

Judgement Text

आयकरअपीलसं./ITA Nos.188 & 2898 to 2900/Chny/2019 िनधा रणवष /Assessment Years: 2007-08 to 2010-11 M/s.St.John Freight – Systems Pvt. Ltd., C-98, SIPCOT Complex, Harbour Express Road, Tuticorin-628 008. v. The Dy. Commissioner- of Income Tax, Central Circle-1, Madurai. [PAN:AAACS 4697 N] (अपीलाथ /Appellant) ( थ /Respondent) अपीलाथ की ओर से/ Appellant by : Mr.R.Vijayaraghavan, Adv. थ की ओर से /Respondent by : Mr.S.Senthil Kumaran, CIT सुनवाईकीतारीख/Date of Hearing : 13.03.2023 घोषणाकीतारीख /Date of Pronouncement : 06.04.2023 आदेश / O R D E R PER ARUN KHODPIA, ACCOUNTANT MEMBER: The captioned appeals filed by the assessee are directed against respective orders passed by the Commissioner of Income Tax (Appeals), which inturn arises from the respective orders passed by the Assessing Officer u/s.143(3) r.w.s.147 of the Income Tax Act, 1961 (in short “the Act") for the aforementioned assessment years. As common issues are involved in the aforementioned appeals, the same have been taken up and आयकर अपीलीय अिधकरण, ‘बी’ "ायपीठ, चे%ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH: CHENNAI ी महावीर िसंह, माननीय उपा ,एवं (ी अ ण खोडिपया, माननीय लेखा सद) के सम BEFORE SHRI MAHAVIR SINGH, HON’BLE VICE PRESIDENT AND SHRI ARUN KHODPIA, HON’BLE ACCOUNTANT MEMBER ITA No.188 & 2898-2900/Chny/2019 :: 2 :: disposed off by way of consolidated order, which shall be taken up in ITA Nos.188 & 2898 to 2900/Chny/2019 for the AYs 2007-08 to 2010-11. ITA No.2898/Chny/2019 for the AY 2008-09 is the lead matter and the orders therein shall apply mutatis mutandis to the remaining cases. The assessee has raised the following grounds of appeal before us. 1. The order of the Commissioner of Income tax (Appeals) is contrary to law, facts and circumstances of the case. 2. The Commissioner of Income tax (Appeals) erred in confirming the validity of the reopening of the assessment u/s.147 of the Act beyond four years from the end of the assessment year on a mere change of opinion and not on account of concealment of any particulars by the Appellant; hence the order is to be quashed as being without jurisdiction. 3.1 Without prejudice to the above, The Commissioner of Income tax (Appeals) erred in confirming that since the return of income has been filed only on 20.01.2009 i.e. beyond the due date u/s.139(1) i.e.30.09.2008 as per provisions of section 80AC, assessee was not eligible for deduction u/s.80IA(4). 3.2 The Commissioner of Income tax (Appeals) should have found that a return filed under Section 153A takes the place of the original return under Section 139, for the purposes of all other provisions of the Act, and once the Assessing Officer accepts the revised return filed under Section 153A on 13.06.2011 (Due date 30.06.2011), the original return under Section 139 abates and becomes non-est 3.3 The Appellant submits that as per Section 153A(1)(a) of the Act the return filed under Section 153A of the Act shall be considered as return filed u/s.139 of the Act. Hence the requirement of Section 80IA read with Section 80AC should be considered on the basis of time limit for filing return u/s.153A. 3.4 The Appellant relies on the decision in the case of ACIT Vs. V.N. Devadoss [2013] 32 taxmann.com 133 (Chennai - Trib.) 4. The Commissioner of Income tax (Appeals) erred in confirming that the certificate issued by Tuticorin Port Trust is not in ITA No.188 & 2898-2900/Chny/2019 :: 3 :: accordance with the Circular No.10/2005 dt 16.12.2005 and the benefit of deduction u/s.80IA(4) could not be allowed for the current assessment year 2008-09 based on certificate issued by the Tuticorin Port Trust on 26.03.2015. 4.1 The Appellant submits that the Ministry of Commerce infra-1 Section, Government of India vide letter dated 11.08.1994 has granted approval for conversion of CFS to ICD, The Certificate issued by the Tuticorin Port Trust on 26.03.2015 certifying the ICD as inland port/extended arm of the Port would apply from the date of conversion of CFS to ICD and not from the date of certificate as contended by the assessing officer. 4.2 The Appellant relies on the decision of The Hon'ble Madras High Court in the case of CIT v A.L.Logistics in TC(A) No.1031 of 2014 dt 23.12.2014, and the decision of the Hon'ble Delhi High Court in the case of Container Corporation of India Ltd v ACIT 346 ITR 140 (Del) wherein it has been held that container freight station will fall within the customs area attached to the Port and it would fall under the provisions of section 80IA(4)(i) Explanation (d) of the Act. 5 The Appellant craves leave to file additional grounds at the time of hearing. 2. The brief facts of the case are that the assessee is a company engaged in the business of agency of clearing &forwarding of shipping. The assessee has filed his original return belatedly for all the years under consideration. For the AY 2007-08, the assessee has shown its total income of Rs.4,68,84,120/- after claiming deduction of Rs.1,31,84,425/- u/s.80IA(4) of the Act. The above return was processed u/s.143(1) of the Act, where the claim of deduction u/s.80IA(4) of the Act, was not allowed. Subsequently, a search u/s.132 of the Act, was conducted on the assessee on 30.09.2009. The search assessment was completed u/s.143(3) r.w.s.153A of the Act, on 19.12.2011 determining the total income ITA No.188 & 2898-2900/Chny/2019 :: 4 :: of Rs.4,68,84,120/- also the deduction u/s80IA of the Act, which was not allowed u/s.143(1) of the Act, was allowed while framing the assessment order u/s.143(3) r.w.s.153A of the Act. The department has later considered this mistake of allowing deduction u/s 80IA, as apparent from the records, a notice u/s.154 of the Act, was issued to the assessee on 09.02.2015 and again on 24.06.2015. In response, the assessee vide its letter dated 09.07.2015 filed detailed objections against the rectification. The AO rejected those objections, passed the order u/s 154 and held that the assessee was not eligible for deduction u/s.80IA(4) of the Act. The reason assigned for rejecting the claim was that the return of income was not filed by the assessee before the due date specified u/s.139(1) of the Act as contemplated in Sec.80AC of the Act and secondly, the assessee was failed to enclose a certificate from the Port Trust Authority along with Audit Report in Form 10CCB. Similar disallowances were made by the Ld AO in assessments done u/s 143(3) of the Act for AY 2008-09 to 2010-11 also only quantum of the addition were different. 3. Aggrieved by the action of the AO, the assessee preferred an appeal before the First Appellate Authority i.e. Commissioner of Income Tax (Appeals). The Ld.CIT(A) deliberated the matter and ITA No.188 & 2898-2900/Chny/2019 :: 5 :: found no merits in the contention of the assessee and sustained the order of the AO. The findings of the Ld.CIT(A) for AY 2007-08 was as under: 5. In view of the above mentioned facts the issue is now decided on merits as under: 5.1 It is mentioned by the Assessing Officer, that the original E- return was filed belatedly for the AY 2007-08 on 7.2.2008 at an income of Rs.4,68,84,120. This return claimed an deduction of Rs.1,31,84,425 u/s.80IA(4). But, since the original return was not filed in time, the claim of deduction claimed u/s.80IA(4) was denied because of the provisions of section 80AC. As per the provisions of Section 80AC, no deduction u/s.80IA shall be levied unless the assessee furnishes the return of income for the said assessment year on or before the due date that is specified u/s.139(1). As in this case, return which was otherwise due on 30.11.2007, was filed on 7.2.2008. It is noted that the provisions of section 80AC are mandatory and contains one of the important eligibility criteria for making the assessee/appellant eligible for deduction available under Chapter VI A of the IT Act" i.e the return of income has be filed on or before the due date as per the provisions of section 139(1). Since in the present case, it is undisputed fact that the original return was not filed in time as per the requirements of section 139(1) for that particular year. Therefore, it disqualifies the appellant from availing deduction u/s.80IA as the mandatory requirements of section 80AC are not fulfilled: The fact that a particular return has been filed in time or not is a mater pertaining to pure facts and there can be no two views about it. Therefore, this matter pertaining to the facts is duly, covered under the provisions of section 154 and is apparent from record. The Assessing Officer therefore correctly resorted to the said provisions for the rectification of a mistake of allowing a deduction that assessee was not otherwise eligible. 5.2 The appellant has nowhere this appeal controverted the fact whether the return filed is to be considered in time or not. The appellant claims that the return filed u/s.153A has to be considered a return filed u/s.139 of the IT Act and since this post search return has been filed by it on time. Therefore, the requirement of filing the return in time u/s.80IA r.w.s.80AC should be considered as return to that been filed in time. His further contention is that as per the second proviso to section 153A where assessment/re- ITA No.188 & 2898-2900/Chny/2019 :: 6 :: assessment for any assessment year falling within the period of six assessment years referred to section 153A, pending on the date of initiation of search u/s.132 shall abate. If the assessment on the basis of original return has abated, then there can be no disallowance of section 80IA r.w.s.80AC in respect of the original return. As the only surviving return is that filed pursuant to notice,153A and the time limit for filing of return and claiming deduction u/s.80IA shall be as per section 153A. 5.3. As aforesaid contention of the assessee cannot be agreed to as that would mean an interpretation of provisions in a way which will render an ineligible assessee as per the original return to be eligible for deduction once search and seizure is carried out in his premises u/s.132 and he files the return in time. That could never be the intention of the legislature. 5.4 In view of the above, the appeal against the order of the Section 154 passed by the Assessing Officer is dismissed with regard to the fact that the original return was not filed in time. 6. There is another item mentioned in the rectification order for rejecting the claim of section 154 that the return of income of the appellant was not enclosed with the certificate of the Port Trust authorities along with the audit report u/s.10CCB. The appellant has submitted that the view of the Assessing Officer is not acceptable because of the Certificate issued by Tuticorin Port Trust certifying the ICD as inland Port/extended arm of the Port, and the same would fall within the definition of "Port" and qualifies as "infrastructural facility" for the purpose of deduction u/s.80IA of the Act. 6.1. It is observed that since the assessee is disqualified from availing the deduction on the fact of filing belated return, therefore this matter of certificate from Port need not be further adjudicated. Since one fact of belated return is sufficient to reject the claim of the assessee/appellant u/s.80IA the Assessing officer has rightfully done it. 4. Now, the assessee is before us to challenge the findings of the authorities below. ITA No.188 & 2898-2900/Chny/2019 :: 7 :: 5. Ground no 1 & 2 are general in nature, Ground to regarding reopening was not argued, thus both these grounds are not adjudicated. 6. The sole ground to be adjudicated, raised in Ground 3 & 4 of all these appeals, which has to be adjudicated is regarding disallowance of deduction u/s 80IA(4). 7. On the issue in hand, at the outset. Ld AR of the assessee has submitted that the reasons, for not allowing the deduction u/s by the Ld AO in all the years under consideration wherein the disallowance of deduction u/s 80IA was made, either under the Rectification proceedings U/s 154 (AY 2007-08) or reassessment u/s 143(3) r.w.s. 147, were as under: - 1. As per provisions of section 80AC, no deduction u/s 80IA shall be allowed unless the assessee furnishes a Return of Income for such Assessment Year on or before the due date of filing of return u/s 139 (1) of the Act. 2. The assessee has failed to enclose the certificate from the port trust authorities along with the audit report in Form 10CCB while filing the ITR for the respective year. 8. A statement of dates for filing of return and assessment proceedings for the impugned AY’s was furnished by the assessee, extracted as under :- ITA No.188 & 2898-2900/Chny/2019 :: 8 :: 9. On the impugned reasons given by the Ld AO, Ld AR reiterated its submission before the Ld CIT(A) for AY 2008-09, which reads as under:- “The Deputy Commissioner of Income tax erred in holding that assessee is not eligible for deduction us. 80IA(4) of the Act. The Deputy Commissioner of Income tax erred in holding that since return of income was filed beyond due date, as par provisions of section 80AC of the Act, assessed is not eligible for deduction us.801A(4) of the Act. The Deputy Commissioner of Income tax ought to have appreciated that as per section 1534(1)(a) of the Act the return filed under section 153A of the Act shall be considered as return filed us. 139 of the Act. Hence the requirement of section 8OIA read with section 80AC should be considered on the basis of time limit for filing return u/s 153A of the Act. ITA No.188 & 2898-2900/Chny/2019 :: 9 :: The Deputy Commissioner of Income tax ought to have appreciated that as per second proviso to section 153A, where assessment/reassessment for any assessment year filing within the period of six assessment years referred as in section 153A, pending on the date of initiation of search under section 132 shall abate. The Deputy Commissioner of Income tax ought to have appreciated that if the assessment on the basis of original return has abated there can be no disallowance of section 80IA read will section 80AC in respect of the original return, as the only surviving return is that filed pursuant to notice u/s. 153A and the time limit for filing of return and claiming deduction u/s.801A shall be as per section 153A of the Act. The Deputy Commissioner of Income tax erred in not following the decision of the Hon'ble Chennai Tribunal in the case of ACIT v V.N.Devadoss 93 DTR 73 (CHNY) wherein it was held that returns filed by assessee us 153A are to be treated as returns filed us 139(1) by virtue of law stated in sec. 153A(1)(a). The Deputy Commissioner of Income tax erred in holding that the assessee is not eligible for deduction un 80IA(4) since it has not entered into any agreement with the Government or any statutory authority as required under section 80IA(4)(ii)(b). The Deputy Commissioner of income tax ought to have appreciated that the condition to enter into agreement with Government or any statutory authority was upto the assessment year 2001-02 From assessment year 2002-03 onwards the only condition for including the structures in the definition of "Port is that the concerned port authority has issued a certificate that the said structures from part of the port CBDT Circular No. 10 of 2005 dt. 16.12.2005. The Deputy Commissioner of Income tax ought to have appreciated that once the proposal is approved by the Government of India, Ministry of Commerce and Industry and notice have been issued by the Commissioner of Customs (Port) permitting the CFS to operate, it is deemed to be approval granted by the competent authority of the Central Government or an undertaking or a body of the Central Government. The Deputy Commissioner of income tax erred in holding that the assessee has not enclosed a certificate from port trust and hence not eligible for deduction u/s 80IA of the Act : The Deputy Commissioner of income tax ought to have appreciated that ITA No.188 & 2898-2900/Chny/2019 :: 10 :: Tuticorin Port Trust Vide Certificate dated 26.03.2015 has certified the CFSACD operations of the assessee Company at Harbour Estate Road al Tuticorin, which was approved by Ministry of Commerce for conversion to FCD vide liefter dt 11.08.1994, as Inland Port/extended arm of the port for claiming deduction under section 801A of the Income Tax Act. The Deputy Commissioner of Income tax ought to have appreciated in view of the certificate issued by the Tuticorin Trust certifying the ICD as inland port/extended arm of the Port, the same would fall within the definition of "Port" and qualifies as "infrastructural facility" for the purpose of deduction u/s 80IA of the Act. The Deputy Commissioner of Income tax erred in not following the ratio laid down in the following decisions :- CIT Vs. A.L.Logistics Pvt. Ltd. 374 ITR 0609 (Mad.), wherein it has been held that:- Container Freight station is held to be falling within the customs area attached to the port. As the work relating to customs is performed at these inland container depots/container freight stations, it would fall under the provision of Section 80IA(4) Explanation(d) of the IT Act. Further, once the proposal is approved by the Government of India, Ministry of Commerce and Industry and notice has been issued by the Commissioner of Customs (Port) permitting the CSF to operate, it is deemed to be approval granted by the competent authority of the Central Government or an undertaking or a body of the Central Government or an undertaking or a body of the Central Government. Container Corporation of India Vs. ACIT 346 ITR 140 (Delhi):-where the Delhi High Court has taken the same view and held that the assessee would be entitled to deduction u/s.80IA of the Act as CFS/ICD were facilities notified by the CBDT. 10. Ld AR relied further on the following case laws:- (i) CIT v. Valli Cotton Trader (P) Ltd, Hon’ble Madras High Court reposted in 288 ITR 0400:- ITA No.188 & 2898-2900/Chny/2019 :: 11 :: Held: A harmonious construction of sub-ss. (S) and (9) of s. 139 would go to show that the power conferred on the AO under sub-s. (9) has to be read with sub-s. (5), in which event, the consequences would be that as per sub-s. (5), the assessees themselves could voluntarily file a revised return, if they discover any omission or any wrong statement in the original return or alternatively, as per sub-s. (9), if the AO considers the return of income furnished by the assessee as defective, he may intimate the defect to the assessee and give an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which he may allow, on an application made in this behalf. It is the AO who refused to accept the original return filed by the assessee, in which the assessee had shown a loss and after issuing notice under s. 148, completed the assessment under s. 147, which resulted in profit. Therefore, at that point of time, the AO ought to have informed the assessee that the non- furnishing of the audit report in Form 10CCAC to claim deduction under s. 80HHC is a defect. The spirit behind sub-ss. (5) and (9) of s. 139 r/w s. 80HHC is that the assessee should be given a fair and reasonable opportunity to claim the benefit as available under the statute; any denial on technical ground is not justified. Merely because the assessee seeks to claim deduction under s. 80HHC based on the audit report in Form 10CCAC after setting aside of the original assessment order and at the stage of remittance of the matter, particularly, under the facts and circumstances of the case when, in the original return, the assessee had shown loss and subsequently, after the AO passed an order under s. 147 which resulted in profit, at which point of time the assessee claimed deduction under s. 80HHC based on the audit report in Form 10CCAC, in view of the specific provisions available under the statute, the assessee should not be denied the opportunity to file audit report for the purpose of claiming benefit under s. 80HHC. In view of the above discussion, the order of the Tribunal made in regard to the remittance of the matter to the AO for fresh consideration with regard to the claim of the assessee to avail the benefit of s. 80HHC by filing the audit report in Form 10CCAC is confirmed. (ii) In the case of CSEC Ltd. Vs. DCIT reported in (2004) 134 Taxmann 647 (Cal.), Hon’ble Calcutta High Court has held that “Section 154 of the Income Tax Act, 1961. ITA No.188 & 2898-2900/Chny/2019 :: 12 :: 11. On the issue of filing of Audit report in prescribed form along with return of income for deduction U/s 80-I, Ld AR has submitted the judicial pronouncements in the case of CIT V, Gujarat Oil & Allied Industries, 201 ITR 0325(1993) Hon’ble Gujarat High Court, which was concurred with by Hon’ble Madras High Court in the case of CIT V. Jayant Patel, reported in 248 ITR 0199 (2001), where in it has been held that: “Deduction u/s 80J – Filling of Audit Report – Directory or mandatory- Requirement of Section 80J(6A) to furnish audit report along with return is directory and mandatory – assessee is eligible for relief under s. 80J even though the audit report was not filed along with the return but was filed before the appellate authority – appellate authority has the powers of original authority – appellate authority ought to have considered the report on merits.” 12. Based on the foregoing submissions Ld AR has contented that since the assessee has field its return of income under section 153A of the act within the prescribed time stipulated in the act, Ld revenue authorities ought to have appreciated that as per section 153A(1)(a) the return filed under section 153A shall be considered as return filed u/s 139 of the Act and accordingly the requirement of section 8OIA read with section 80AC should be considered on the basis of time limit for filing return u/s 153A of the Act. Thus, deduction u/s 80IA shall be granted as per time limit for filing of return u/s 153A of the Act. ITA No.188 & 2898-2900/Chny/2019 :: 13 :: 14. Apropos, filing of audit report Ld AR placed a reliance on the judgment of the Hon’ble Jurisdictional High Court and Hon’ble Gujarat High Court in the case of Jayant Patel and Gujarat Oil & Allied Industries(supra) and accordingly have argued that filing of Audit report is directory and not mandatory and therefore deduction u/s 80IA shall not be denied. 15. Regarding submission of certificate from port trust, it was the submission of the Ld AR that, Ld AO has erred by not following the ratio laid down by the Hon’ble High Courts in the decisions in the case of CIT Vs. A.L.Logistics Pvt. Ltd. (supra) and Container Corporation of India (supra), wherein it has been held that container freight station will fall within the customs area attached to the Port and it would fall under the provisions of section 80IA(4)(i) Explanation (d) of the Act. It is therefore submitted that deduction claimed u/s 80IA shall not be denied. 16. Ld DR, on the contrary in rebuttal have submitted that the denial of deduction U/s 80IA r.w.s 80AC was a justified decision that of the Ld AO, which was fortified by confirming the same by Ld CIT(A). It is further submitted that, the Mandatory conditions as per section 80AC for allowance of deduction u/s 80IAare violated by the assessee in the present appeals, which are that, ITA No.188 & 2898-2900/Chny/2019 :: 14 :: (1) The Return of income claiming deduction u/s 80IA should be furnished on or before the due date of the filing of return u/s 139(1) but in present cases the original return of income were filed belatedly, (2) A copy of from Local /State authority (Port Trust Authorities / Customs Department in present case) from whom approval is taken should be enclosed with Audit report in form 10CCB. The Audit report in the present case were defective/ incomplete, even the certificate required was not enclosed with the same. The certificate furnished during the assessment proceeding was also defective. Ld AO’s observation on the subject were as under:- 4.1 From the above details, it is noticed that the assessee has not entered into any agreement with the Government or any statutory authority as required under the provisions of section 80 IA(4)(i)(b). Therefore, the assessee has not satisfied the basic condition and hence is ineligible for deduction u/s 80 1A(4). 4.2 The assessee has claimed that CBDT has notified that CFSIICD as customs area Port. However, in this regard it is important to underline that subsequent to amendment to section 80 IA(4) by the Finance Act 2001, the power to notify infrastructure facilities for the purpose of the section was taken away from the CBDT w.e.f. 1.4.2002. Further vide clarification dt 6.1.2011 issued by the· CBDT wherein circulars dt. 23.3.2000 and 16.12.2005 were considered and it was clarified that ICD's and CFS are not ports located on any inland waterway, river or canal and therefore they cannot be classified as 'inland ports' for section 80 1A(4)(i). Therefore, the assessee's arguments are not tenable and the assessee is not eligible for deduction u/s 80 IA(4). ITA No.188 & 2898-2900/Chny/2019 :: 15 :: 4.3 Further, in the form 10CCB filed during the course of assessment proceedings the copy of approval as specified in column 13 has not been filed. The assessee's representative was asked to furnish the copy of the certificate issued by the Port Trust Authorities. During the course of assessment proceedings for the A.Y 2012-13, a letter was addressed on 10.02.2015 to the Port Trust Authorities, Tuticorin under the provisions of section 133(6), requesting for a copy of the certificate issued to the assessee. In response, a reply dt. 26.03.2015 was received from Port Trust Authorities enclosing a copy of the certificate dt.26.03.2015 issued to the assessee on a specific request made by the assessee vide its ietter dt. 16.03.2015. 4.4 The following are the exact wordings of the certificate issued by the Port Trust Authorities: "Based on the provisions of section 2(12) of the Customs Act, 1962, defining Customs Port as any Port appointed under Clause (a) of Section 7 to be a Customs Port and includes Inland Container Depot(lCD) appointed under Clause(aa) of Section 7 of the Act read with approval of Ministry of Commerce infra- 1 Section, Government of India vide letter dated 11.8.1994, for conversion of CFS of S Uohn Freight System Ltd. to ICD, the same is certified as Inland Port/extended arm of the Port for claiming deduction under section 80 lA of the Income Tax Act, 1961. , This is issued with specific reference to the request made by your Company vide letter dated 16.03.2015 only." 4.5 The above certificate has been issued to the assessee only on 26.03.2015 on a specific request made by the assessee on 16.3.2015 during the course of assessment proceedings for the assessment year 2012-13. Therefore, it is amply clear that no such certificate was issued to the assessee earlier and that for the assessment year 2009-10 at the time of filing the Return of Income and Form 10 CCB, no such certificate was in assessee's possession for its claim of deduction u/s 80 lA(4). Therefore, the Form 10 CCB filed by the assessee for the assessment year 2009-10 is incomplete and incorrect. 4.6 Further, the exact wordings of the certificate do not satisfy the requirement as envisaged in the above Board's circular. As per the Board's Circular, the Port Trust Authorities should certify that "the said structures form part of the port". No such ITA No.188 & 2898-2900/Chny/2019 :: 16 :: certificate has been issued by the Port Trust Authorities. Instead, in the certificate issued by the Port Trust, it is stated that the assessee company is certified as Inland Port/extended arm of the Port for claiming deduction under section 80 lA of the Income Tax Act, 1961. The Port Trust in its certificate has remarked about the assessee's claim of deduction u/s 80 IA(4). The eligibility or otherwise of St. John CFS Park with regard to its claim of deduction u/s 80 IA(4) can only be on basis of fulfillment of statutory requirements as envisaged in the Income tax Act. The assessee has to comply with all the essential conditions of section 80 IA(4) read with the Board's circular to be eligible for the above deduction. Further, as discussed in para 4.2 above; the CBOT vide its letter dt.6.1.2011 has clarified that ICO's and CFS are not ports located on any inland waterway, river or canal and therefore they cannot be classified as 'inland ports' for section 80 IA(4) (i). Therefore the certificate issued by the Port Trust authorities does not satisfy the requirement specified by the above Board's circular . Hence the assessee has not complied with the requirements as specified in Board's circular nO.1 012005 dt.16.12.2005 and therefore the St. CFS Park division of St. John Freight Systems Ltd. does not qualify as an 'Infrastructure facility' as defined under the provisions of section 80 IA(4) and hence is ineligible for deduction u/s 801A(4). 17. Ld CITDR have submitted the following judicial pronouncements for our perusal on the issue in hand: 18. Civil Appeal No.1449 of 2022 in the case of PCIT-III, Bangalore and another V. M/s Wipro Limited, wherein at para 14, it has been held that: 19. In view of the above discussion and for the reasons stated above, we are of the opinion that the High Court has committed a grave error in observing and holding that the requirement of furnishing a declaration under Section 10B (8) of the IT Act is ITA No.188 & 2898-2900/Chny/2019 :: 17 :: mandatory, but the time limit within which the declaration is to be filed is not mandatory but is directory. The same is erroneous and contrary to the unambiguous language contained in Section 10B (8) of the IT Act. We hold that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. Accordingly, the question of law is answered in favour of the Revenue and against the assessee. The orders passed by the High Court as well as ITAT taking a contrary view are hereby set aside and it is held that the assessee shall not be entitled to the benefit under Section 10B (8) of the IT Act on non- compliance of the twin conditions as provided under Section 10B (8) of the IT Act, as observed hereinabove. The present Appeal is accordingly Allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. 20. In the ITAT’s Special Rajkot Bench, in the case of Saffire Garments v. ITO, reported in (2012) 28 Taxmann.com 27, it has been observed that: ITA No.188 & 2898-2900/Chny/2019 :: 18 :: Scheme of the Act with regard to filing of returns In order to decide the issue, the whole scheme of the Act needs to be considered. The assessee is required to file the return of income within the prescribed time as per the provisions of section 139(1). This provision of section 139(1) is applicable to all companies and firms irrespective of the fact as to whether they are earning taxable income or not for the current year i.e., from 1-4-2006. In respect of other persons such as individual, HUF, AOP or BO I and artificial Juridical person, the requirement is that if such a person is having taxable income before giving effect to the provisions of section 10A, then also, he is required to file return of income before the due date even if this person is not having taxable income after giving effect to the provisions of section 10A. [Para 11] Consequences of failure to file return within due date It is found that the provisions of the proviso to section 10A(1A) is nothing but a consequence of failure of the assessee to file the return of income within the due date prescribed under section 139(1). For such a failure of the assessee to file his return of income within the due date prescribed under section139(1), this is not the only consequence. One consequence of such failure is prescribed in section 234A also as per which, the assessee is liable to pay interest on the tax payable by him after reducing advance tax and TDS/TCS if any paid by him apart from some other reductions. Such interest is payable from the date immediately following the due date for filing the I return of income and is payable up to the date on which such return of income was furnished by the assessee and if the assessee has not furnished any return of income then the interest is payable till the date of completion of the assessment under section 144. It is held that above is also one of the consequences of not filing return of income by the assessee within the due date. [Para 11] One may raise the argument that interest under section 234A is payable only if the assessee has not paid his advance tax and, therefore, such interest is for the failure of the assessee to pay advance tax as per the requirement of the Act and not for the delay in filing return of income. But it is held that it is not so. For the failure of the assessee to pay advance tax as per the advance tax paid by the assesses is less than 90 per cent of the assessed tax. [Para 11] ITA No.188 & 2898-2900/Chny/2019 :: 19 :: Imposition of interest is one of consequences of failure to file return within due date and such consequence is mandatory; therefore, disallowance of deduction under section 10A, being one more consequence, cannot be held to be directory, but mandatory Under this factual and legal position, it has to be held that the interest payable by the assessee under section 234A is for his failure to file the return of income within the due date prescribed under section 139(1). This is by now a settled position of law that charging of interest under various sections including under section 234A, is mandatory. When one of the consequences for not filing return of income within the due date prescribed under section 139(1) is mandatory then, other consequence of the same failure of the assessee cannot be directory and the same is also mandatory. It is, therefore, held that the provisions of the proviso to section 10A(1A) is mandatory and not directory and, therefore, first question is answered in negative and it is held that this proviso to section 10A(1A) is mandatory. [Para 11] It is, therefore, held that the provisions of proviso to section 10A(1A) is mandatory and not merely directory. [Para 17] 21. To contradict the assessee’s contention to claim a deduction in reassessment proceedings which was not claimed in the original return, Ld CITDR has places reliance on the following judgments: CIT v. Sun Engineering Works (P) Ltd. [1992] 107 CTR (SC) 209 : [1992] 198 ITR 297 (SC), the principle laid by the Hon’ble apex Court to the effect that in reassessment proceedings, an assessee can neither claim nor be allowed a deduction that was not claimed in the original return. As such the assessment proceedings initiated on the basis of an action under Section 132 of the Act also cannot be utilised by the assessee to seek relief not claimed earlier. Goetze (India) Ltd. v . CIT [2006] 204 CTR (SC) 182: [2006] 284 ITR 323 (SC) wherein it has been laid that the AO cannot entertain a claim for deduction otherwise than by filing a revised return. Since, the assessee neither made any such claim in the original return filed under Section 139(1) of the Act nor in regular assessment proceedings by way of filing any revised return therefore returns filed in response to notice under Section 153A of the Act are not substitute of revised return for making claim of such benefits. Having regard to the provisions of s. ITA No.188 & 2898-2900/Chny/2019 :: 20 :: 139(5) of the Act and since the assessments under s. 153A are in relation to undisclosed income, it is precisely for this reason that new claim of deduction or allowance cannot be made in the completed assessments. It is a settled principle of law that what cannot be done directly can also not be done indirectly. K.P. Varghese v. ITO [1981] 131 ITR 597/7 Taxman 13, It has been observed by the Hon’ble Supreme Court in this case that “it is well recognized rule of construction that a statutory provision must be so construed, if possible that absurdity and mischief may be avoided.” From the perspective department, if anassessee is allowed to claim an allowance, deduction etc. u/s 153A not claimed earlier than it would mean that even in cases where the appeal arising out of the completed assessment has been decided by the CIT(A), ITAT and the High Court, on a notice issued under Section 153A of the Act, the AO would have power to undo what has been concluded up to the High Court. Any interpretation which leads to such conclusion has to be repelled and/or avoided. 22. Ld CITDR further relied on the following cases: Wherein, it was held that the search proceedings under section 153A are for the benefit of the revenue and therefore any fresh claim is not allowable u/s153A of the act: – Jai Steel (India), Vs Jodhpur Assistant Commissioner of Income-tax [2013] 36 taxmann.com 523 (Rajasthan) Charchit Agarwal Vs Assistant Commissioner of Income- tax, Central Circle 12, New Delhi [2009] 34 SOT 348 (Delhi) Sun city Alloys Pvt. Ltd. V Asstt CIT (2009) 124 TTJ 674 (Jodhpur) 23. On perusal of circular No. 14/2006 dated 28.12.2006, which was brought to our attention by the department at Sr No 10, which explains about the benefit of certain deductions not to be allowed in cases where return is not filed within the specified time limit, para 10.1 and 10.2 reads as under:- ITA No.188 & 2898-2900/Chny/2019 :: 21 :: 10.1 Section 139(1) casts an obligation on every assessee to furnish the return of income by the due date. With a view to enforce the compliance in this regard by the assesses, who are entitled for deductions under section 10B from their income, a proviso (fourth proviso) to sub-section (1) of section 10B been inserted so as to provide that no deduction under section 10B shall be allowed to an assessee, who does not furnish a return of his income on or before the due date specified in sub-section (1) of section 139. Similarly, with a view to enforce the compliance for furnishing the ration of income by the due date by the assessees who are entitled for deductions under section 80-1A or section 80-LAB or section 80-1B or section 80-IC from their income, a new section 80AC has been inserted so as to provide that n deduction under section 80-1A or section 80-IAB or section 80-IB or section 80-1C shall be allowed to an assessee, who does not furnish a return of his income on or before the due date specified in sub-section (1) of section 139. 10.2 This amendment takes effect retrospectively from 1-4- 2006 and applies in relation to the assessee year 2006-07 and subsequent year. (Sections 5 and 15) 24. We have considered the rival submissions, perused the material available on records, read the judicial pronouncements placed into service for substantiating the contentions by both the sides. 25. Admittedly, the assessee was in default, so far as filing of return is concerned, in all the impugned AY’s, the original return of Income was filed beyond the due date of filing of return as prescribed u/s 139(1) of the IT Act. Assessee’s submission that, as per Section 153A(1)(a) of the Act the return filed under Section 153A of the Act shall be considered as return filed u/s.139 of the ITA No.188 & 2898-2900/Chny/2019 :: 22 :: Act. Hence the requirement of Section 80IA read with Section 80AC should be considered on the basis of time limit for filing return u/s.153A. 26. The contention raised by the revenue that reassessment proceedings U/s 153A or 147 were initiated on the assessee, the assessee is not entitled to claim the deduction which was not claimed earlier while filing the return u/s 139(1), this view is well supported by the judgments in the case of Sun Engineering Works (P) Ltd., Goetze (India) Ltd., K.P. Varghese and other cases, referred to supra. On this issue, in the case of VN Devadoss (supra). 27. Against the contention of the revenue, The Appellant relies on the decision in the case of ACIT Vs. V.N. Devadoss [2013] 32 taxmann.com 133 (Chennai - Trib.), wherein it was held on the issue regarding belated filing of return u/s 139(1) has observed and held under para 26 that: “In the facts and circumstances of the case and in the light of the decision rendered by the Special Bench of the Income-tax Appellate Tribunal, Rajkot in the case Saffire Garments (supra), we hold that filing of return under section 139(1) within the due date prescribed under law is a mandatory provision. If the assessees want to claim deduction under section 80IB(10), it is necessary that the assessees must file their returns of income ITA No.188 & 2898-2900/Chny/2019 :: 23 :: before the due date prescribed under section 139(1) of the Income- tax Act, 1961. Para 27. Accordingly, this issue is decided in favour of the Revenue and the finding of the Commissioner of Income-tax (Appeals) on this point is set aside. However, in the same judgment on the alternate ground of the appellant that “whether the returns filed in response to notices issued under section 153A can be taken as returns filed within the time limit stipulated under section 139(1).”It has been held that“ deduction claimed u/s 80IB in return filed under section 153A cannot be denied on the ground that claim was not made earlier in return filed under section 139(1)”.The ratio of allowability of deduction u/s 80IB treating the return filed u/s 153A as return filed u/s 139(1) was discussed in the case of VN Devadoss (supra). ITAT Chennai in the said decision under para 40 to 43 has observed and held that: - 40. The litmus test in the present case is whether the assessees have filed the returns in time, in response to the notices issued under section 153A. If the returns were filed within the time allowed under section 153A, it is as good as having the returns filed under section 139(1) within the due date. 41. It is in the light of the above discussion that we have to consider the two relevant decisions of the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal, F-Bench, Mumbai in the case of Faisal Abbas (supra) has held that the return of income filed under section 153A was to be deemed to be a return filed under section 139 and therefore all other provisions of the Act would apply in view of the provisions of law stated in section 153A(1)(a). The Tribunal, therefore, held that even if a return of income was filed under section 153A, the assessee was entitled for the benefit of brought forward losses to be set off against the assessable income. Section 139(3) provides that if any person who has sustained a loss in any previous year under the head 'Profits and gains of business or profession', the ITA No.188 & 2898-2900/Chny/2019 :: 24 :: same could be carried forward and set off against future income only if the assessee has filed his return within the due date prescribed under section 139(1). It is exactly like the provisions of law stated in section 80AC. Inspite of that, the Tribunal in the above stated case of Faisal Abbas (supra) has held that the assessee is still entitled for carry forward and set off of business loss as the return filed by the assessee under section153A has to be treated as a return filed under section 139(1). The same principle has been followed by the Income- tax Appellate Tribunal, Mumbai G-Bench in the case of Ever smile Construction Co. (P.) Ltd. (supra). 42. In view of the above discussion and relying on the above- mentioned decisions of the Income-tax Appellate Tribunal, Mumbai Benches, we hold that the returns filed by the assessees under section 153A are to be treated as returns filed under section 139(1) by virtue of the law stated in section 153A(1)(a). As such, the assessees are entitled for the deduction available under section 80IB(1). The rider provided in section 80AC does not apply to the present cases, as the returns filed by the assessees under section 153A have been considered as returns filed under section 139(1) within time. 43. Therefore, we uphold the decision of the Commissioner of Income-tax(Appeals) on the alternate ground raised by the assessee as to whether the returns filed in response to notices under section 153A can be taken as returns filed within the time stipulated under section 139(1). We hold that the returns filed under section 153A need to be treated as returns filed within the time limit stipulated under section 139(1). Therefore, the rider provided in section 80AC does not apply to these cases.Therefore, the assessees are entitled for claiming the benefit of deduction available under section 80IB(10) of the Act. 44. Thus the first common issue raised in all these appeals relating to deduction under section 80IB(10) is decided in favour of the assessees and the orders of the Commissioner of Income- tax(Appeals) on this issue is upheld on the ground that the returns filed under section 153A are returns filed under section 139(1). 28. In backdrop of the above discussion and observations, after thoughtfully considering the facts of the present case, respectfully following the decision of ITAT Chennai in the case of V.N. devadoos (supra), we are of the considered view that the return filed within the time provided in the notice u/s 153Aneed to be treated as ITA No.188 & 2898-2900/Chny/2019 :: 25 :: returns filed within the time limit stipulated under section 139(1) and therefor the deduction claimed u/s 80IA of the Act can not be denied. 29. So far as binding judgment of the Hon’ble Apex court in the case of Wipro Limited (supra) is concerned, the same has laid down the principle that for claiming the benefit under Section 10B (8) of the IT Act, the twin conditions of furnishing a declaration before the assessing officer and that too before the due date of filing the original return of income under section 139(1) are to be satisfied and both are mandatorily to be complied with. In the present case the return has been filed within the time provided in the notice u/s.153A of the Act. The return so filed, is a return filed, is to be treated if such return were a return required to be furnished u/s.139 of the Act. Consequently, applying the principle laid down by the Hon’ble Supreme Court in the case of Wipro Limited (supra), the return be treated as a return furnished u/s.139 of the Act, the assessee is eligible to the benefit of deduction u/s.80IA of the Act. Thus, the findings of ITAT Chennai, in the case of V.N. Devadoss still holds good on this aspect. Consequently, we direct the revenue authorities to allow the claim of the assessee u/s 80IA treating the returns filed u/s 153A within the time limit stipulated under section ITA No.188 & 2898-2900/Chny/2019 :: 26 :: 139(1), the rider provided in section 80AC does not apply to these cases, therefore, the assessees is entitled for claiming the benefit of deduction available under section 80IA(4) of the Act. 30. Revenues contention in contradiction to that of the assessee’s contention to claim a deduction in reassessment proceedings which was not claimed in the original return, supported with the judgments referred to herein above is also not applicable in the present case since in the finding in the all the cases referred was that the assessee had neither made any such claim in the original return filed under Section 139(1) of the Act nor in regular assessment proceedings by way of filing any revised return therefore returns filed in response to notice under Section 153A of the Act are not substitute of revised return for making claim of such benefits. In the present case in hand the assessee the facts are different wherein the assessee had claimed the deduction u/s 80IA but the filing of return was delayed and the issue of delay in filing of return following the judgment in the case of VN Devadoos (supra), we have already decided in the favour of assessee, in terms of our observations herein above. 31. Apropos, the issue of non-submission of audit report in form 10CCB or non-submission of requisite certificate and regarding ITA No.188 & 2898-2900/Chny/2019 :: 27 :: defects in audit report and certificate from port, filed during the assessment proceedings, since Ld CIT(A) has not adjudicated the same, we refrain ourselves from adjudicating the same and deem it fit to restore the matter back to the files of Ld CIT(A) for adjudication on merits of case regarding limited issue of examining the matter relating to certificate required along with form 10CCB for claiming of deduction u/s 80IA. Needless to say reasonable opportunity of being heard shall be afforded to the appellant to defend its contentions. 32. In the result appeals filed in ITA Nos.188 & 2898 to 2900/Chny/2019by the assessee considered in this order are partly allowed for statistical purposes. 33. In the result, appeals filed by the assessee are partly allowed for statistical purposes. Order pronounced on the 06 th day of April, 2023, in Chennai. Sd/- ( महावीर िसंह) (MAHAVIR SINGH) उपा /VICE PRESIDENT Sd/- (अ ण खोडिपया) (ARUN KHODPIA) लेखासद)/ACCOUNTANT MEMBER चे%ई/Chennai, िदनांक/Dated: 06 th April, 2023. TLN आदेशकी ितिलिपअ*ेिषत/Copy to: ITA No.188 & 2898-2900/Chny/2019 :: 28 :: 1. अपीलाथ /Appellant 4. आयकरआयु+/CIT 2. थ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकरआयु+ (अपील)/CIT(A) 6. गाड फाईल/GF आदेशानुसार/ BY ORDER, (Assistant Registrar) आयकर अपीलीय अिधकरण, चे%ई /ITAT, Chennai Date Initial 1. Draft dictated on 24 &27.03.23 (typed directly on Hon’ble AM’s Computer) Sr.PS 2. Draft placed before author 24 & 27.03.23 Sr.PS 3. Draft proposed & placed before the second member JM/AM 4. Draft discussed/approved by Second Member. JM/AM 5. Approved Draft comes to the Sr.PS/PS Sr.PS/P S 6. Kept for pronouncement on Sr.PS 7. File sent to the Bench Clerk Sr.PS 8. Date on which file goes to the Sr.PS 9. Date on which file goes to the Head Clerk. 11.04.2023 10. Date of dispatch of Order.