M/s. Superfil Products Ltd., CHENNAI V. ACIT, CHENNAI

ITA 2055/CHNY/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64431 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 25-09-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 14-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S MO HARANA
• Assessee Lawyers: V S JAYAKUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER I.T.A. NO. 2055/MDS/2011 ASST. YEARS : 2002-03 M/S. SUPERFIL PRODUCTS LTD, OLD NO.407/1, NEW NO.808/1, GR COMPLEX, BASEMENT, ANNA SALAI, CHENNAI 600 035 PAN : AAACS8817Q. (APPELLANT) V. THE ASST. COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-VI(4), CHENNAI. (RESPONDENT) APPELLANT BY : SHRI V.S. JAYAKUMAR, ADVO CATE RESPONDENT BY : SHRI S. MOHARANA, JCIT, D.R. DATE OF HEARING : 25 SEPT. 2012 DATE OF PRONOUNCEMENT : 12 TH OCT. 2012 O R D E R PER CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, CHE NNAI DATED 25.10.2011 IN ITA NO.305/10-11 FOR THE ASST. YEAR 2 002-03 I.T.A. NO.2055/MDS/11 2 2. THE FIRST ISSUE IN THE GROUNDS OF APPEAL IS THA T THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT A DJUDICATING THE VALIDITY PART OF RE-OPENING OF ASSESSMENT UNDER S EC.147 OF THE I.T. ACT, BY THE ASSESSING OFFICER. THE SECOND ISSUE IN THE GROUNDS OF APPEAL IS THAT THE COMMISSIONER OF INCOME TAX (APPE ALS) ERRED IN CONFIRMING THE DISALLOWANCE OF DEDUCTION UNDER SEC. 80 IB OF THE I.T. ACT ON THE GROUND THAT THE ASSESSEE HAD NOT FILED T HE AUDIT REPORT IN NEW FORM 10CCB. 3. IN SO FAR AS THE FIRST ISSUE IS CONCERNED, WE S EE THAT THE ASSESSEE HAS NOT RAISED ANY SPECIFIC GROUND BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN ITS GROUNDS OF APPEAL QU ESTIONING THE VALIDITY OF RE-OPENING OF ASSESSEE UNDER SEC.147 OF THE ACT. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THOUGH NO SP ECIFIC GROUND WAS RAISED BEFORE THE COMMISSIONER OF INCOME TAX (A PPEALS) IN THE GROUNDS OF APPEAL, IT HAS BEEN STATED IN THE STATEM ENT OF FACTS FILED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). W E HAVE PERUSED THE STATEMENT OF FACTS FILED BEFORE THE COMMISSIONE R OF INCOME TAX I.T.A. NO.2055/MDS/11 3 (APPEALS) AND FIND THAT THE ASSESSEE HAS SIMPLY STA TED THAT THE ASSESSMENT WAS RE-OPENED UNDER SEC.147 OF THE ACT F OR CERTAIN REASONS. HOWEVER, THE ASSESSEE HAS NOT QUESTIONED THE VALIDITY OF RE-OPENING OF ASSESSMENT UNDER SEC.147 OF THE AC T EVEN IN THE STATEMENT OF FACTS. THEREFORE, SINCE THE ASSESSEE HAS NOT RAISED SPECIFIC GROUND BEFORE THE COMMISSIONER OF INCOME T AX (APPEALS) QUESTIONING THE VALIDITY OF RE-OPENING OF ASSESSMEN T, WE DISMISS THIS GROUND RAISED BY THE ASSESSEE BEFORE US. 4. WITH REGARD TO SECOND ISSUE IN THE GROUNDS OF A PPEAL OF THE ASSESSEE, THE BRIEF FACTS ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME ON 30.10.2002 FOR THE ASST. YEAR 2000-01 ADM ITTING NIL INCOME AFTER CLAIMING DEDUCTION UNDER SEC.80 IB OF THE ACT. THE ASSESSMENT WAS COMPLETED UNDER SEC.144 OF THE ACT O N 31.12.2009 DENYING DEDUCTION UNDER SEC.80IB OF THE ACT ON THE GROUND THAT THE ASSESSEE HAS NOT FILED AUDIT REPORT AS PER RULE 18B BB OF I.T. RULES. THE ASSESSEE FILED AN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS) CONTENDING THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN MAKING ASSESSMENT UNDER SEC.144 OF THE ACT IE., BES T JUDGMENT I.T.A. NO.2055/MDS/11 4 ASSESSMENT. THE ASSESSEE ALSO CONTENDED BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) THAT THE ASSESSING OFFICER IS NOT JUSTIFIED IN DISALLOWING DEDUCTION CLAIMED UNDER SEC.80IB OF THE ACT ON THE GROUND THAT THE AUDIT REPORT WAS NOT FILED AS PER T HE AMENDED RULE 18BBB OF IT RULES INSERTED WITH EFFECT FROM 06.9.20 02. THE ASSESSEE CONTENDED BEFORE COMMISSIONER OF INCOME TAX (APPEAL S) THAT THE ASSESSEE HAD FILED FORM 10CCB IN RESPECT OF ITS CLA IM UNDER SEC.80IB AS APPLICABLE FOR THE ASST. YEAR 2002-03. IT WAS C ONTENDED BY THE ASSESSEE THAT THE FORM OF AUDIT REPORT FOR CLAIMING DEDUCTION UNDER SEC.80IB, LAID DOWN IN RULE 18BBB OF IT RULES WAS AMENDED WITH EFFECT FROM 06.9.2002, AND IS APPLICABLE FOR THE AS ST. YEAR 2003-04 AND NOT FOR THE ASST. YEAR 2002-03. THEREFORE, THE ASSESSEE CONTENDED THAT SINCE IT HAD FILED AUDIT REPORT IN F ORM 10CCB AS APPLICABLE FOR THE ASST. YEAR 2002-03, THERE IS NO JUSTIFICATION IN DISALLOWING DEDUCTION UNDER SEC.80IB OF THE ACT. T HE COMMISSIONER OF INCOME TAX (APPEALS) REJECTED THE CONTENTION OF THE ASSESSEE AND HELD THAT SINCE THE ASSESSE DID NOT FILE AUDIT REPO RT AS PER AMENDED PROVISIONS OF RULE 18BBB OF IT RULES, AS INTRODUCED WITH EFFECT FROM 06.09.2002, THE ASSESSING OFFICER IS CORRECT IN DEN YING DEDUCTION I.T.A. NO.2055/MDS/11 5 UNDER SEC.80IB OF THE ACT. COMING TO THE BEST JUDG EMENT ASSESSMENT MADE UNDER SEC.144 OF THE ACT, THE COMMI SSIONER OF INCOME TAX (APPEALS) HELD THAT THE ASSESSING OFFICE R HAS NOT MADE OUT ANY CASE FOR ANY DEFAULT BY THE ASSESSEE AS PR OVIDED UNDER SEC.144(1)(A),(B) OR (C). THEREFORE, HE HELD THAT THERE IS NO CASE FOR PASSING ASSESSMENT ORDER UNDER SEC.144 OF THE ACT A ND ALLOWED THE APPEAL OF THE ASSESSEE ON THAT GROUND. 5. THE COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESSEE FILED AUDIT REPORT IN FORM 10CCB AS PER THE PROVISI ONS OF RULE 18BBB AS IT STOOD AT THAT POINT OF TIME. HE SUBMITS THAT RULE 18BBB WAS AMENDED BY IT(23 RD AMENDMENT)RULE 2002 AS AMENDED BY THE IT (9 TH AMENDMENT) RULES 2003 WITH EFFECT FROM 06.9.2002. THEREFORE, COUNSEL FOR THE ASSESSEE SUBMITS THAT SINCE RULE 18 BBB WAS AMENDED WITH EFFECT FROM 06.9.2002, THE ASSESSEE WA S UNDER THE BONA FIDE IMPRESSION THAT THIS RULE IS APPLICABLE F ROM THE ASST. YEAR 2003-04 ONWARDS AND NOT FOR THE ASST. YEAR 2002-03 . THE COUNSEL FOR THE ASSESSEE SUBMITS THAT IT IS NOT THAT THE AS SESSEE HAS NOT FILED ANY AUDIT REPORT FOR CLAIMING DEDUCTION UNDER SEC.8 0IB BUT IT FILED IN I.T.A. NO.2055/MDS/11 6 FORM 10CCCB IN OLD FORMAT CLAIMING DEDUCTION UNDER SEC.80 IB OF THE ACT. THEREFORE, THE COUNSEL FOR THE ASSESSEE SUBM ITS THAT THE ASSESSEE CANNOT BE DENIED DEDUCTION UNDER SEC.80IB FOR TECHNICAL DEFAULT, IF ANY, FOR NOT SUBMITTING THE AUDIT REPOR T IN NEW FORMAT AS PRESCRIBED UNDER RULE 18BBB WHICH WAS INTRODUCED WI TH EFFECT FROM 06.9.2002. HE ALSO SUBMITS THAT THE MATTER MAY BE REMITTED TO THE FILE OF THE ASSESSING OFFICER AND THE ASSESSEE WOUL D COMPLY WITH THE REQUIREMENT OF FILING THE AUDIT REPORT IN NEW FORMA T AS PER RULE 18BBB. HE PRAYED THAT AN OPPORTUNITY MAY BE GIVEN TO THE ASSESSEE TO COMPLY WITH THE REQUIREMENT OF FILING THE AUDIT REPORT IN FORM 10CCB IN THE NEW FORMAT AS PER AMENDED RULE. 6. THE DEPARTMENTAL REPRESENTATIVE RELIED ON THE O RDERS OF LOWER AUTHORITIES. ON THE POINT OF REMITTING THE M ATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR THE ASSESSEE TO C OMPLY WITH THE REQUIREMENT OF FURNISHING AUDIT REPORT IN THE PROPE R FORMAT, THE DEPARTMENTAL REPRESENTATIVE DID NOT SERIOUSLY OBJEC T. I.T.A. NO.2055/MDS/11 7 7. WE HAVE HEARD BOTH SIDES, PERUSED THE MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIES BELOW. T HE ASSESSEE FILED THE AUDIT REPORT IN FORM 10CCB CLAIMING DEDUCTION U NDER SEC.80IB OF THE I.T. ACT IN OLD FORMAT. RULE 18BBB OF THE I.T RULES WAS AMENDED WITH EFFECT FROM 06.9.2002 FOR FILING A REVISED FOR M OF AUDIT REPORT FOR CLAIMING DEDUCTION UNDER SEC.80IB, 80IA ETC., ALON G WITH SEPARATE PROFIT AND LOSS ACCOUNT, BALANCE SHEET ETC., FOR E ACH UNIT OF THE INDUSTRIAL UNDERTAKING. THE DUE DATE FOR FILING TH E RETURN OF INCOME FOR THE ASST. YEAR 2002-03 WAS 31.10.2002. IT COUL D BE SEEN THAT THE ASSESSES WERE HARDLY GIVEN TIME FOR FURNISHING THE AUDIT REPORT IN THE REVISED FORMAT ALONG WITH SEPARATE PROFIT & LOSS A CCOUNT, BALANCE SHEET ETC., FOR CLAIMING DEDUCTION UNDER SEC.80IB O F THE ACT FOR THE ASST. YEAR 2002-03 AS THE AUDIT REPORT IS TO BE FIL ED ALONG WITH THE RETURN OF INCOME. SINCE THE PROVISIONS WERE INTROD UCED WITH 06.9.2002, THE BONA FIDE BELIEF OF THE ASSESSEE THA T THE PROVISIONS ARE APPLICABLE FOR THE ASST. YEAR 2003-04 AND NOT T O THE ASST. YEAR 2002-03 CANNOT BE BRUSHED ASIDE. DEDUCTION UNDER S EC.80IB IN THE ASSESSEES CASE CANNOT BE DENIED ON THE TECHNICAL G ROUND OF NON- I.T.A. NO.2055/MDS/11 8 FILING OF FORM 10CCB IN THE NEW FORMAT WHEN THE ASS ESSEE HAD COMPLIED WITH THE REQUIREMENT OF FILING OF FORM 10C CB IN OLD FORMAT FOR CLAIMING THE DEDUCTION. TAKING INTO ACCOUNT TH E TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE WE FEEL THAT IN THE I NTEREST OF SUBSTANTIAL JUSTICE THIS ISSUE SHOULD GO BACK TO TH E ASSESSING OFFICER FOR DETERMINING THE ISSUE AFRESH. THE ASSESSEE MA Y FILE AUDIT REPORT IN NEW FORMAT AS PER RULE 18BBB OF I.T. RULES AS AM ENDED WITH EFFECT FROM 06.9.2002 AND THE ASSESSING OFFICER SHA LL CONSIDER THE AUDIT REPORT IN ALLOWING DEDUCTION CLAIMED UNDER SE C.80IB OF THE ACT. WITH THE ABOVE DIRECTIONS, WE REMIT THE ISSUE TO TH E FILE OF THE ASSESSING OFFICER FOR DECIDING THE MATTER AFRESH AF TER PROVIDING THE ASSESSEE ADEQUATE OPPORTUNITY IN THE MATTER. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE. I.T.A. NO.2055/MDS/11 9 10. ORDER PRONOUNCED ON FRIDAY, THE 12 TH DAY OF OCTOBER 2012. SD/- SD/- ( N.S. SAINI) (CHALLA NAGEND RA PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED : 12 TH OCTOBER 2012. JLS. COPY TO :- 1) ASSESSEE 2) RESPONDENT 3) CIT(APPEALS) 4) C.I.T. (5) D.R., 4) GUARD FILE.