General Optics (Asia) Ltd., Pondicherry V. ACIT, Pondicherry

ITA 2069/CHNY/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 8169 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2016
• Court: TRIBUNAL
• Department Lawyers: B SAHADEVAN
• Assessee Lawyers: GOPALAKRISHNAN HEAD FINANCE
• Keywords: Revised return; Reassessment proceedings
• Section: 143(3); 80IB; 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . . ' #$ , % &' ( [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI D. S. SUNDER SINGH, ACCOUNTANT MEMBER ] ./ I.T.A.NO.2069/MDS/2016 / ASSESSMENT YEAR : 2008-09 M/S GENERAL OPTICS (ASIA) LTD R.S.NO.84/1, NALLAVADU ROAD THAVALAKUPPAM PONDICHERRY VS. THE ASST T. COMMISSIONER OF INCOME-TAX CIRCLE I PONDICHERRY [PAN AAACG 3012 B] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : SHRI GOPALAKRISHNAN, HEAD - FINANCE /RESPONDENT BY : SHRI B. SAHADEV AN, JCIT / DATE OF HEARING : 27 - 0 9 - 2016 ! / DATE OF PRONOUNCEMENT : 21 - 10 - 2016 / O R D E R PER D.S. SUNDER SINGH, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS), PUDUCHER RY, DATED 30.3.2016 FOR ASSESSMENT YEAR 2008-09. 2. GROUND NO.1 IS GENERAL IN NATURE REQUIRING NO SPECI FIC ADJUDICATION. GROUND NO.2 IS NOT ARGUED AND THEREF ORE, DISMISSED. ITA NO. 2069/16 :- 2 -: 3. GROUND NO. 3 AND 4 ARE RELATED TO THE DISALLOWANCE U/S 80IB OF INCOME-TAX ACT, 1961( IN SHORT THE ACT). 4. THE ASSESSEE FILED THE RETURN OF INCOME DECLARING TOTAL INCOME OF ` 1,81,51,460/- AFTER CLAIMING DEDUCTION U/S 80IB OF ` 61,58,584/-. SUBSEQUENTLY, IT REVISED THE RETURN O F INCOME ON 4.2.2010 ADMITTING A TOTAL INCOME OF ` 1,73,61,110/- AFTER CLAIMING DEDUCTION U/S 80IB OF ` 68,52,387/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) BY AN ORDER DATED 28.12.2010 ACCEPTING T HE REVISED RETURN OF INCOME. SUBSEQUENTLY, THE ASSESSING OFFICER REO PENED THE ASSESSMENT BY ISSUE OF NOTICE U/S 148 OF THE ACT D ATED 11.1.2013 FOR EXCESS CLAIM OF DEDUCTION U/S 80IB OF THE ACT. TH E ASSESSING OFFICER WAS OF THE VIEW THAT THE ASSESSEE HAS CLAIMED THE DEDUCTION U/S 80IB AMOUNTING TO ` 68,52,387/- WITHOUT SUBMITTING THE FORM NO.10CCB ALONGWITH THE REVISED RETURN OF INCOME. THE ASSESS ING OFFICER DISALLOWED THE EXCESS DEDUCTION CLAIMED U/S 80IB T O THE EXTENT OF ` 68,52,387/- AS PER DISCUSSION MADE IN THE ASSESSMEN T ORDER AT PAGE 2 AS UNDER: I HAVE EXAMINED THE SUBMISSION MADE BY THE ASSESS EES AUTHORIZED REPRESENTATIVE. THE REASONS GIVEN BY TH E ASSESSEES AR ARE NOT ACCEPTABLE, AS FORM NO.10CCB SHOULD HAVE BEEN FILED BY THE ASSESSEE AT THE TIME OF FILING THE REVISED RETURN OF INCOME. IN THE ABSENCE OF THE SAME, THE EXCESS CLAIM OF DED UCTION U/S 80IB OF ` 6,93,804/- IS DISALLOWED AND THE ASSESSMENT IS COMPLETED U/S 143(3) R.W.S 147 OF THE INCOME-TAX A CT, 1961 AS UNDER: ITA NO. 2069/16 :- 3 -: 5. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, TH E ASSESSEE WENT ON APPEAL BEFORE THE CIT(A). THE LD. CIT(A) CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSER VING THAT IN RESPONSE TO THE NOTICE ISSUED U/S 148, THE ASSESS EE HAS WRITTEN A LETTER TO THE ASSESSING OFFICER TO TREAT THE ORIGIN AL RETURN OF INCOME DATED 30.9.2008 AS THE RETURN FILED IN RESPONSE TO THE NOTICE U/S 148 AND NOT THE REVISED RETURN DATED 4.2.2010. THE REV ISED RETURN OF INCOME CLAIMING ENHANCED EXEMPTION U/S 80IB HAS NO T BEEN FILED WITHIN THE TIME LIMIT ALLOWED U/S 139(1) OF THE AC T. THE REVISED RETURN ALSO DOES NOT ENCLOSE THE REPORT IN FORM 10CCB. N ON-FURNISHING OF AUDIT REPORT EVEN DURING ASSESSMENT HAS BEEN ADMITT ED BY THE ASSESSEE ITSELF AND ACCORDINGLY, HE CONFIRMED THE D ISALLOWANCE MADE BY THE ASSESSING OFFICER. 6. BEFORE US, THE LD.AR ARGUED THAT THE ASSESSEE HAS FILED THE REVISED RETURN OF INCOME ON 4.2.2010 WHEREAS THE OR IGINAL ASSESSMENT WAS COMPLETED ON 28.12.2010. AFTER CONSIDERING THE DEDUCTION CLAIMED U/S 80IB BY THE ASSESSEE IN THE REVISED R ETURN OF INCOME, THE ASSESSING OFFICER ACCEPTED THE INCOME RETURNED BY T HE ASSESSEE AND MADE ASSESSMENT U/S 143(3) VIDE ORDER DATED 28.12. 2010. THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IB FOR AN AMOUNT OF ` 68,52,387/- AND THIS FACT WAS NOT DISPUTED BY THE A SSESSING OFFICER. ITA NO. 2069/16 :- 4 -: MERELY BECAUSE THE AUDIT REPORT WAS NOT FURNISHED A LONGWITH THE REVISED RETURN, REJECTING THE GENUINE CLAIM OF THE ASSESSEE IS NOT JUSTIFIED. FURTHER, THE LD. AR OF THE ASSESSEE AR GUED THAT AS PER CIRCULAR NO.6 OF 2008, THE ASSESSEE NEED NOT SUBMI T THE ENCLOSURES ALONGWITH THE RETURN OF INCOME. THEREFORE, THE LD. AR ARGUED THAT THE CIT(A) HAS ERRED IN CONFIRMING THE ORDER OF THE ASS ESSING OFFICER AND THE ASSESSEE IS ENTITLED TO RELIEF U/S 80IB TO TH E EXTENT OF ` 68,52,387/-. 7. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 8. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL PLACED BEFORE US. CIRCULAR NO.6 OF 2008 RELIED ON BY THE ASSESSEE IS NOT RELATING TO THE SUBMISSION OF AUDIT REPORT IN F ORM NO.10CCB. IT RELATED TO THE OTHER ENCLOSURES OF THE RETURN OF IN COME, TDS CERTIFICATES, TCS CERTIFICATES ETC. AS PER RULE 12 (2) OF THE INCOME TAX RULES, THE AUDIT CERTIFICATE IN FORM NO.10CCB IS RE QUIRED TO BE FILED ELECTRONICALLY, THEREFORE, THE ARGUMENT OF THE LD. AR RELATING TO NON- SUBMISSION OF AUDIT REPORT AS PER CIRCULAR NO.6 OF 2008 IS NOT CORRECT AND IT IS REJECTED. HOWEVER, IT IS AN ADMITTED FAC T THAT THE ASSESSEE HAS FILED THE AUDIT REPORT IN FORM NO.10CCB BEFORE THE ASSESSING OFFICER AT THE TIME OF REASSESSMENT PROCEEDINGS. T HE ASSESSING ITA NO. 2069/16 :- 5 -: OFFICER HAS NOT DISPUTED THAT THE ASSESSEE IS ENTI TLED FOR DEDUCTION U/S 80IB TO THE EXTENT OF ` 68,52,387/-. MERE TECHNICAL FAULT CANNOT JEOPARDIZE THE GENUINE CLAIM OF THE ASSESSEE RELAT ING TO DEDUCTION U/S 80IB AND IT IS SETTLED ISSUE THAT AUDIT REPORT FILED BEFORE THE COMPLETION OF ASSESSMENT PROCEEDINGS WOULD BE CONSI DERED AS SUFFICIENT COMPLIANCE OF THE PROVISIONS OF THE ACT. THEREFORE, WE CONSIDER IT NECESSARY TO REMIT THE MATTER BACK TO T HE FILE OF THE ASSESSING OFFICER TO EXAMINE WHETHER THE ASSESSEE IS ENTITLED FOR DEDUCTION U/S 80IB TO THE EXTENT OF ` 68,52,387/- AS PER THE REPORT IN FORM NO.10CCB FILED DURING THE RE-ASSESSMENT PROCEE DINGS AND ALLOW CORRECT DEDUCTION. THE ASSESSEE IS DIRECTED TO FU RNISH THE REQUIRED DETAILS BEFORE THE ASSESSING OFFICER. THIS GROUND I S ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO.5 AND 6 ARE RELATED TO THE CREDIT FOR TDS . 10. THE LD. AR SUBMITTED THAT THE ASSESSING OFFICER HA S NOT ALLOWED THE CORRECT AMOUNT OF TDS DEDUCTED. THE A SSESSING OFFICER IS DIRECTED TO VERIFY THE TDS CLAIM AND ALLOW THE CORR ECT AMOUNT OF TDS AS PER THE CLAIM MADE BY THE ASSESSEE AFTER VERIFI CATION OF THE TDS CERTIFICATES. ITA NO. 2069/16 :- 6 -: 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST OCTOBER, 2016, AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( . . ' #$ ) (D.S. SUNDER SINGH) % / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 21 ST OCTOBER, 2016 RD &' ()*) / COPY TO: 1 . / APPELLANT 4. + / CIT 2. / RESPONDENT 5. ),- . / DR 3. +/' / CIT(A) 6. -01 / GF