ITO, New Delhi V. M/s. Gopi Constech Pvt. Ltd., New Delhi

ITA 2385/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3309 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC 1
• Next Hearing Date: 04-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K JIWANI
• Section: 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES SMC : DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA.NO.2385/DEL./2016 ASSESSMENT YEAR 2009-2010 THE INCOME TAX OFFICER, WARD 10(2), NEW DELHI. VS. M/S. GOPI CONSTECH PVT. LTD., A-52, CHANAKYA PLACE, PANKHA ROAD, UTTAM NAGAR, NEW DELHI PIN-110059. PAN AECA0864D (APPELLANT) (RESPONDENT) FOR REVENUE : SHRI V.K. JIWANI, SR.D.R. FOR ASSESSEE : SHRI VIVEK BANSAL, ADVOCATE DATE OF HEARING : 05.03.2018 DATE OF PRONOUNCEMENT : 08. 03.2018 ORDER THIS APPEAL BY REVENUE HAS BEEN DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-4, NEW DELHI, DATED 03 RD FEBRUARY, 2016, FOR THE A.Y. 2009-2010, CHALLENGING THE ORDER OF TH E LD. CIT(A) IN DELETING THE ADDITION OF RS.38,19,520/-, ON ACCO UNT OF DISALLOWANCE MADE UNDER SECTION 80IA OF THE I.T. AC T, 1961. 2 ITA.NO.2385/DEL./2016 M/S. GOPI CONSTECH PVT. LTD., NEW DELHI. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT RETURN OF INCOME IN THIS CASE WAS ORIGINALLY FILED ON 28 TH SEPTEMBER, 2009 CLAIMING DEDUCTION UNDER SECTION 80IA OF THE ACT. T HE RETURN WAS, HOWEVER, INADVERTENTLY FILED QUOTING PAN OF TH E DIRECTOR OF THE ASSESSEE-COMPANY. IN RESPONSE TO NOTICE UNDER S ECTION 148 OF THE ACT, RETURN OF INCOME WAS ELECTRONICALLY FIL ED BY THE ASSESSEE-COMPANY ON 29.04.2013. GROSS TOTAL INCOME WAS DECLARED AT RS.38,19,517/- AND AFTER CLAIMING DEDUC TION UNDER SECTION 80-IA ON THE SAME AMOUNT, THE TOTAL INCOME WAS DECLARED AT RS.NIL. WHILE COMPLETING THE ASSESSMENT , THE AO ACCEPTED THE INCOME DECLARED IN THE HANDS OF THE AS SESSEE- COMPANY. HOWEVER, THE A.O. REJECTED THE ALLOWANCE O F DEDUCTION UNDER SECTION 80-IA FOR THE REASONS AS NO TED IN THE ASSESSMENT ORDER, AS UNDER : I. AS PER PROVISIONS OF THE SECTION 80AC OF THE ACT, N O DEDUCTION U/S 80IA CAN BE ALLOWED UNLESS THE ASSESSEE FURNISHES A RETURN OF INCOME FOR SUCH ASSESSMENT YEAR ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139 OF THE ACT. IN THIS CASE, HOWEVER, THE ASSESSEE COMPANY FILED RETURN OF 3 ITA.NO.2385/DEL./2016 M/S. GOPI CONSTECH PVT. LTD., NEW DELHI. INCOME FOR AY 2009-10 FOR THE FIRST TIME ONLY ON 29.04.2013 AND THAT TOO AFTER PROCEEDINGS WERE INITIATED U/S 147 OF THE ACT. II. IT HAS NOT BEEN PROVED THAT THE ASSESSEE IS A 'DEVELOPER'. THE ASSESSEE IS A SIMPLE CONTRACTOR AN D DOES NOT POSSESS ANY PLANT OR MACHINERY LIKE CRANES , EARTH EXCAVATION EQUIPMENTS ETC. III. THE REPORT INITIALLY SUBMITTED IN FORM NO. 10CCB DI D NOT CONTAIN COMPLETE PARTICULARS AS REQUIRED. 2.1. THE ASSESSEE-COMPANY CHALLENGED THE ASSESSMEN T ORDER BEFORE LD. CIT(A) AND FILED DETAILED WRITTEN SUBMISSIONS. THE LD. CIT(A) CONSIDERING THE SUBMISSIONS OF THE A SSESSEE- COMPANY AND ALSO THE MATERIAL EVIDENCE AVAILABLE ON THE RECORD, FOUND THAT ASSESSEE-COMPANY HAD NOT FILED THE PROPE R RETURN OF INCOME UNDER SECTION 139(1). BUT THERE IS NO DISPUT E THAT ORIGINALLY THE ASSESSEE-COMPANY FILED ITS RETURN OF INCOME ON 28 TH SEPTEMBER, 2009 BUT WITH THE WRONG PAN NUMBER OF T HE DIRECTOR WAS QUOTED. THE LD. CIT(A) FOUND THAT SECT ION 80AC OF THE I.T. ACT, WHICH PROHIBITS DEDUCTION UND ER SECTION 4 ITA.NO.2385/DEL./2016 M/S. GOPI CONSTECH PVT. LTD., NEW DELHI. 80IA, IF THE RETURN IS NOT FURNISHED ON OR BEFORE T HE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT IS ONLY DIRECTORY AND NOT MANDATORY. THE LD. CIT(A) ALSO FOUND THAT ASS ESSEE- COMPANY IS A DEVELOPER AND NOT A MERE CONTRACTOR . IT WAS ALSO NOTED THAT IN THE SAME CIRCUMSTANCES, DEDUCTIO N UNDER SECTION 80-IA WAS ALLOWED TO THE ASSESSEE-COMPANY B Y THE A.O. FOR A.YS. 2010-11 AND 2012-13. THE CLAIM OF TH E ASSESSEE- COMPANY UNDER SECTION 80IA WAS ACCORDINGLY ALLOWED. 3. LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUTSET , SUBMITTED THAT ON THE SAME FACTS AND REASONS, THE A .O. DENIED DEDUCTION UNDER SECTION 80IA OF THE ACT, TO THE ASS ESSEE- COMPANY IN A.Y. 2007-2008. HOWEVER, THE LD. CIT(A) ALLOWED THE APPEAL OF ASSESSEE-COMPANY. HE HAS SUBMITTED TH AT DEPARTMENT FILED APPEAL BEFORE ITAT, A-BENCH, DELHI , IN ITA.NO.2384/DEL./2016 FOR A.Y. 2007-2008 AND DEPART MENTAL APPEAL HAS BEEN DISMISSED VIDE ORDER DATED 22 ND JANUARY, 2018 ON THE SAME MATTER OF CLAIMING DEDUCTION UNDER SECT ION 80IA OF THE ACT. COPY OF THE ORDER IS PLACED ON RECORD. HE HAS, 5 ITA.NO.2385/DEL./2016 M/S. GOPI CONSTECH PVT. LTD., NEW DELHI. THEREFORE, SUBMITTED THAT THE ISSUE IS COVERED IN F AVOUR OF THE ASSESSEE-COMPANY BY THE ORDER OF THE ITAT FOR A.Y. 2007-2008 (SUPRA). 4. THE LD. D.R. DID NOT DISPUTE THIS FACT. 5. CONSIDERING THE FACTS OF THE CASE IN THE LIGHT OF MATERIAL ON RECORD, IT IS CLEAR THAT THE A.O. HAS A LLOWED SIMILAR CLAIM OF THE ASSESSEE-COMPANY UNDER SECTION 80IA OF THE ACT ON THE SAME FACTS AND REASONS IN A.YS. 2010-2011 AND 2 012-2013. IN A.Y. 2007-2008, THE A.O. DENIED THE DEDUCTION UN DER SECTION 80IA ON THE SAME FACTS AND REASONS, WHICH HAVE BEEN SET ASIDE BY THE LD. CIT(A) AND THE TRIBUNAL DISMISSED THE AP PEAL OF THE REVENUE, AS REFERRED ABOVE. THEREFORE, NO INFIRMITY HAVE BEEN POINTED OUT IN THE ORDER OF THE LD. CIT(A) IN GRANT ING DEDUCTION UNDER SECTION 80IA OF THE I.T. ACT. THE DEPARTMENTA L APPEAL FAILS AND IS ACCORDINGLY DISMISSED. 6. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 6 ITA.NO.2385/DEL./2016 M/S. GOPI CONSTECH PVT. LTD., NEW DELHI. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER DELHI, DT. 08 TH MARCH, 2018. VBP/- COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) CONCERNED 4. CIT CONCERNED 5. D.R. ITAT SMC BENCH, DELHI 6. GUARD FILE. // BY ORDER // ASSISTANT REGISTRAR : ITAT DELHI BENCHES : DELHI.