The Assistant Commissioner of Income Tax, Circle-2 (1), Jamnagar V. Shreeji Shipping Services (India) Ltd., Jamnagar

ITA 237/RJT/2022

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3677 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-02-2024
• Assessment Year: 2019-2020
• Appeal Filed On: 12-09-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 2; 143(3); 143(1); 80IA; 207

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT (Conducted through E-Court at Ahmedabad) BEFORE SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER & SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER I .T .A . N o .2 3 7 /R j t /2 02 2 ( A s se ss m e nt Y e a r : 20 19- 2 0 ) A s sis ta n t C o m mi s s i o ne r o f I n c o m e Ta x, C ir c le - 2( 1) , J a m na ga r V s.Sh re ej i S hi pp in g Se r vi ce s ( In di a) Li m it ed , N r . T ee n D a r w aj a , K h an d B az ar , G r a in M ar ke t, J a m n ag a r - 36 10 0 1 [ P A N N o . A A FC S4 7 51 A ] (Appellant) .. (Respondent) Appellant by : Shri Shramdeep Sinha, CIT DR Respondent by: Smt. Astha Maniyar, A.R. D a t e of H ea r i ng 13.02.2024 D a t e of P r o no u n ce me nt 23.02.2024 O R D E R PER SIDDHARTHA NAUTIYAL, JM: This appeal has been filed by the Revenue against the order passed by the Ld. Commissioner of Income Tax (Appeals)-II, (in short “Ld. CIT(A)”), National Faceless Appeal Centre, (in short “NFAC”), Delhi in Appeal No. ITBA/NFAC/S/250/2022-23/1044360120(1), vide order dated 30.07.2022 passed for Assessment Year 2019-20. 2. The Department has raised the following grounds of appeal:- “1. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs.6,74,36,587/- u/s 80IA of the Act holding that filing of Form 10CCB within the specified date as provided in section 80IA(7) of the act is not mandatory but directory in nature without appreciating the words employed in section 80IA(7) of the Act in right perspective? ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 2 - 2. The Ld. CIT(A) has erred in law and on facts in not giving due cognizance to the clear and unambiguous provision of section 80IA (7) of the Act which provides that both the conditions i.e. filing of Form 10CCB and filing such Form within the prescribed due date are to be satisfied are mandatory, hence it cannot be said that one of the conditions would be mandatory and the other would be directory. 3. The Ld. CIT(A) has erred in law and on facts in deleting the disallowance of Rs.6,74,36,587/- u/s 80IA of the Act as the decision of the CIT(A) is contrary to the ration laid down by the Hon’ble Supreme Court vide order dated 11.07.2022 in the case of PCIT vs. Wipro Limited in Civil Appeal No. 1449 of 2022 (arising out of SLP(Civil) No. 7620/2021). 4. The Ld. CIT(A) ought to have upheld the order of the Assessing Officer. 5. That the revenue craves leaves to add, amend, alter or withdraw any ground of appeal. 6. It is therefore prayed that the order of the CIT(A) may kindly be set aside and that of Assessing Officer be restored.” 3. The brief facts of the case are that the assessee filed it’s original return of income for A.Y. 2019-20 on 30.09.2019 claiming deduction under Section 80IA of the Act amounting to Rs. 6,74,36,587/-. The assessee company filed Form No. 10CCB on 07.01.2020 and filed revised return of income on 08.01.2020. The CPC, Bangalore processed the return of income and passed intimation under Section 143(1) of the Act on 03.06.2020 disallowing the claim of deduction under Section 80IA of the Act. 4. In appeal, Ld. CIT(A) allowed the appeal of the assessee with the following observations:- “5.2.1. As per the electronically uploaded Form No. 3CA/3CD dated 29.07.2019/07.08.2019 of C.A. Shri.Rajnikant Vallabhbhai Pragyada, ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 3 - Membership No. 118132 of Jamnagar, the deduction allowable u/s 80 IA of Rs.6,74,36,587/- is mentioned in s.no.33. 5.2.2. As per the electronically uploaded Form No. 10 CCB dated 07.01.2020 of C.A. Shri.Rajnikant Vallabhbhai Pragyada, Membership No. 118132 of Jamnagar, the deduction allowable u/s 80 IA of Rs.6,74,36,587/- is mentioned. 5.2.3. In the electronically uploaded ITR 6 dated 30.09.2019 also, the deduction allowable u/s 80 IA of Rs.6,74,36,587/- is mentioned in sch VI A. 5.3. As per the provisions of Sec. 80 IA (2), the deduction specified in sub section (1)may, at the option of the assessee, be claimed for any ten consecutive assessment years out of fifteen years beginning from the year in which the undertaking or the enterprise develops and begins to operate any infrastructure facility... 5.4. As per the electronically uploaded Form No. 10 CCB dated 07.01.2020 of C.A. Shri Rajnikant Vallabhbhai Pragyada, Membership No. 118132 of Jamnagar, the deduction allowable u/s 80 IA is claimed from the A.Y. 2010-11 (initial assessment year) & date of commencement of operation of Jetty/infrastructure facility is 07.09.2007. 5.4.1. In electronically uploaded ITR 6 dated 15.10.2010 for A.Y. 2010-11, the deduction claimed u/s 80 IA of Rs.67,64,129/- is mentioned. 5.4.2. In the electronically uploaded ITR 6 dated 30.09.2011 for A.Y.2011- 12, the deduction claimed u/s 80 IA of Rs.NIL/- is mentioned. 5.4.3. In the electronically uploaded ITR 6 dated 30.09.2012 for A.Y.2012- 13, the deduction claimed u/s 80 IA of Rs.NIL/- is mentioned. 5.4.4. In the electronically uploaded ITR 6 dated 30.11.2013 for A.Y.2013- 14, the deduction claimed u/s 80 IA of Rs.46,48,260/- is mentioned. 5.4.5. In the electronically uploaded ITR 6 dated 30.11.2014 for A.Y.2014- 15, the deduction claimed u/s 80 IA of Rs.NIL/- is mentioned. 5.4.6. In the electronically uploaded ITR 6 dated 30.11.2015 for A.Y.2015- 16, the deduction claimed u/s 80 IA of Rs.NIL/- is mentioned. 5.4.7. In the electronically uploaded ITR 6 dated 30.11.2016 for A.Y.2016- 17, the deduction claimed u/s 80 IA of Rs. 1,46,92,672/- is mentioned. ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 4 - 5.4.8. In the electronically uploaded ITR 6 dated 31.10.2017 for A.Y.2017- 18, the deduction claimed u/s 80 IA of Rs.34,18,169/- is mentioned. 5.4.9. In the electronically uploaded ITR 6 dated 17.10.2018 for A.Y.2018- 19, the deduction claimed u/s 80 IA of Rs.2,90,23,866/- is mentioned. 5.5. In response to the hearing notice issued on 22.06.2022, the appellant uploaded reply on 24.06.2022, wherein besides statement of facts, the appellant has relied on the following cases (i) Collector Land Acquisition Vs. MST Katiji ‘1987 law Suit (S.C) 214 (S.C) (ii) CIT vs Jayant Patel(2001 248 ITR 199) (Mad) (iii) CIT Vs Centimeters Electrical (p) Ltd. {2009} 317 ITR 249(DEL) (iv) CIT V/s vs. ACE MULTITAXES SYSTEMS (P) LTD. {2009} 317 ITR 207 (Karnataka), (v) CIT Vs. G.M. Knitting Industries (p) Ltd. {2015} 376 ITR 456(S.C) (vi) CIT V/s M/S Fortuna Foundation Engineers -order dated 7 April,2017(All HC) (vii) ITO V/s M/s Marathon India Ltd., in ITA No.287/JP/2018(AY-2014- 15) - order dated 21.06.2018(ITAT, Jaipur) 5.6. To further substantiate its claim u/s 80 IA of the Income Tax Act, the appellant on 27.06.2022 uploaded copy of agreement dated 22.11.2016 between Gujarat Maritime Board & Shreeji Shipping services (India) limited(16 pages), copy of agreement dated 20.01.2016 between Gujarat Maritime Board & Shreeji Shipping services (India) limited(4 pages) and copy of supplementary agreement dated 28.03.2017 between Gujarat Maritime Board & Shreeji Shipping services (India) limited(14 pages). 5.7. To further substantiate its claim u/s 80 IA of the Income Tax Act, the appellant on 30.06.2022 uploaded copy of photos of the jetty for which deduction is claimed. Further appellant has uploaded copy of audit reports and copy of assessment order for the A.Y.2010-11 passed by the JCIT, Range 3 Jam Nagar(Shri.Binod Kumar). 5.7.1 On 12.07.2022, the ACIT Circle 2(1), Jam Nagar(Shri. Rajendra Raj), has made a request for early hearing. The same has duly been considered. 5.8. After duly considering the reply submitted by the appellant, the case laws relied on, the details available in the three agreements between Gujarat Maritime Board & Shreeji Shipping services (India) limited ,it is hereby held that there is no merit in the disallowance of Rs.6,74,36,587/- made in the ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 5 - order u/s 143(1) dated 03.06.2020 passed by the ADIT,CPC, Bangalore and the same is hereby DELETED. 5.9. In result, the appeal is ALLOWED.” 5. The Department is in appeal before us against the aforesaid order passed by Ld. CIT(A) allowing the claim of deduction under Section 80IA of the Act. Before us, the Ld. D.R. submitted that from perusal of Para 5.8, Page 8 of the CIT(Appeals) order, it is evident that the Ld. CIT(A) while allowing the claim of the assessee simply relied upon the submissions made by the assessee and there was absolute non-application of mind by the Ld. CIT(A) while allowing the appeal of the assessee. It was submitted that the Ld. CIT(A) did not make any observations regarding the eligibility of claim of the assessee under Section 80IA of the Act and nor did the Ld. CIT(A) made any observations with regards to the various judicial precedents which have held that the late filing of Form 10CCB is a mandatory requirement and late filing of such Form would disentitle the assessee from claim of deduction under Section 80IA of the Act. Further, Ld. D.R. submitted that the Ld. CIT(A) also did not consider the decision rendered by the Hon’ble Supreme Court of India in the case of PCIT vs. Wipro Ltd. 140 taxmann.com 223 (SC) which had been passed prior to the date of passing of order by Ld. CIT(A) which have held that filing of such Forms as a mandatory requirement. 6. In response, the Counsel for the assessee submitted that non-filing of Form 10CCB alongwith return of income does not call for rejection of claim of deduction under Section 80IA of the Act, when the assessee has furnished Form No. 10CCB prior to the return of income being processed ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 6 - by the Department under Section 143(1) of the Act. Further, the Counsel for the assessee submitted that Section 80IA of the Act is a “deduction provision” and it is a well settled law that “deduction provision” which have been introduced in the Statute to provide incentive to the assessee should be construed liberally. Further, the Counsel for the assessee relied on several decisions by ITAT Ahmedabad which have distinguished the Wipro judgment supra on facts and submitted that the above decision rendered by the ITAT Ahmedabad Bench are squarely applicable on the assessee’s set of facts. Further, the Counsel for the assessee submitted that Assessment Year 2010-11 was the first year of claim of deduction under Section 80IA of the Act and the said claim has been allowed by the jurisdictional Assessing Officer under Section 143(3) of the Act vide order dated 02.07.2012. Accordingly, the Counsel for the assessee submitted that it is a fit case for grant of deduction under Section 80IA of the Act. 7. We have heard the rival contentions and perused the material on record. However, on going through the contents of the order passed by the Ld. CIT(A) we observe that the order passed by Ld. CIT(A) is a non- speaking order in which the Ld. CIT(A) has not analyzed the relevant judicial precedents on the subject as applicable to the assessee’s set of facts. Further, it is observed that Ld. CIT(A) has simply accepted the version of the assessee without independently applying his mind to the facts of the case. The Ld. CIT(A) has not even considered the impact of Supreme Court judgment in the case of Wipro Ltd. supra, which was passed prior to date as passing of order by Ld. CIT(A). ITA No.237/Rjt/2022 ACIT vs. Shreeji Shipping Services (India) Ltd. Asst.Year –2019-20 - 7 - 8. Accordingly, looking into the instant facts, in the interest of justice, the matter is being restored to the file of Ld. CIT(A) for de-novo consideration and Ld. CIT(A) is directed to pass a fresh order after taking into consideration the relevant judicial precedents on the subject as applicable to assessee’s set of facts and then pass a speaking order, in accordance with law. 9. In the result, the appeal of the Department is allowed for statistical purpose. This Order pronounced in Open Court on 23/02/2024 Sd/- Sd/- (ANNAPURNA GUPTA) (SIDDHARTHA NAUTIYAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad; Dated 23/02/2024 TANMAY, Sr. PS TRUE COPY आदेश क त ल प अ े षत/Copy of the Order forwarded to : 1. अपीलाथ / The Appellant 2. यथ / The Respondent. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त(अपील) / The CIT(A)- 5. वभागीय त न ध, आयकर अपील!य अ धकरण, राजोकट / DR, ITAT, Rajkot 6. गाड' फाईल / Guard file. आदेशान ु सार/ BY ORDER, उप/सहायक पंजीकार Dy./Asstt.Registrar) आयकर अपील य अ धकरण, राजोकट / ITAT, Rajkot 1. Date of dictation 20.02.2024 2. Date on which the typed draft is placed before the Dictating Member 20.02.2024 3. Other Member..................... 4. Date on which the approved draft comes to the Sr.P.S./P.S 21.02.2024 5. Date on which the fair order is placed before the Dictating Member for pronouncement .02.2024 6. Date on which the fair order comes back to the Sr.P.S./P.S 23.02.2024 7. Date on which the file goes to the Bench Clerk 23.02.2024 8. Date on which the file goes to the Head Clerk.......................................... 9. The date on which the file goes to the Assistant Registrar for signature on the order.......................... 10. Date of Despatch of the Order..........................................