M/S UNIQUE BUILDERS AND DEVELOPERS (AJIT), Jaipur V. DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, Jaipur

ITA 249/JPR/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9896 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 21-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANURADHA JCIT DHK
• Keywords: Question of law
• Section: 143(3); 80IB; 205; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JES'K LH 'KEKZ] YS[KK LNL; DS LE{K BEFORE: SHRI RAMESH C SHARMA , ACCOUNTANT MEMBER VK;DJ VIHY LA-@ ITA NO. 249/JP/2018 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2013-14 M/S UNIQUE BUILDERS AND DEVELOPERS (AJIT), SPECIAL BENCH-59, 3 RD FLOOR UDB TOWER, OPP.- JAIPUR NAGAR NIGAM, TONK ROAD, JAIPUR- 302015 CUKE VS. D.C.I.T., CENTRAL CIRCLE-2, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABFU 8858 R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : MS. ANURADHA (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 19/03/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 27/03/2019 VKNS'K@ ORDER PER: R.C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD.CIT(A)-4, JAIPUR DATED 29/01/2018 FOR THE A.Y. 20 13-14 IN THE MATTER ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR DE CLINE OF CLAIM OF DEDUCTION U/S 80IB OF THE ACT AMOUNTING TO RS. 13,6 5,811/-. ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 2 3. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE COMPANY IS ENGAGED I N REAL ESTATE BUSINESS. RETURN OF INCOME FOR THE YEAR UNDER CONSI DERATION WAS FILED ON 30/07/2013 DECLARING TOTAL INCOME AT RS. NIL AFTER CLAIMING DEDUCTION U/S 80IB OF RS. 13,65,811/-. IN THE COURSE OF ASSES SMENT U/S 143(3) OF THE ACT, THE ASSESSING OFFICER DECLINED ASSESSEES CLAIM U/S 80IB OF THE ACT BY ALLEGING THAT THE ASSESSEE HAS FAILED TO FIL E THE AUDIT REPORT IN FORM NO. 10CCB ONLINE AS REQUIRED IN RULE 12(2) OF THE INCOME TAX RULES, 1962. BY THE IMPUGNED ORDER, THE LD. CIT(A) C ONFIRMED THE DISALLOWANCE AND THE ASSESSEE IS IN FURTHER APPEAL B EFORE THE ITAT. 4. I HAVE CONSIDERED RIVAL CONTENTIONS AND CAREFULL Y GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FROM THE RECORD I FOUND THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE FIRM FILED THE RET URN OF INCOME WHERE THE INCOME WAS COMPUTED BY FOLLOWING THE PROJECT COMP LETION METHOD AND SINCE THE PROJECT WAS STATED TO BE COMPLETED, TH E ASSESSEE HAD CLAIMED DEDUCTION OF RS. 13,65,811/- U/S 80IB OF TH E ACT AND NECESSARY FORM NO. 10CCB DULY SIGNED BY THE CHARTERED ACCOUNT ANT WAS FILED BEFORE THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRA L CIRCLE- II, JAIPUR ON 31.07.2013. COPY OF FORM NO. 10CCB ALONG WITH ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 3 ACKNOWLEDGMENT OF DEPOSIT OF THE SAME WAS FURNISHED B EFORE THE ASSESSING OFFICER. THOUGH THE ASSESSEE HAD NOT FILE D THE FORM NO. 10CCB ELECTRONICALLY AS REQUIRED BY THE FIRST PROVI SO TO RULE 12(2) OF THE INCOME TAX RULES, 1962, HOWEVER, ASSESSEE HAD FILED T HE REPORT DURING THE COURSE OF ASSESSMENT PROCEEDINGS. HOWEVER, THE A SSESSING OFFICER WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAD ALREADY FILED THE REPORT IN PHYSICAL FORM IN HIS OFFICE WITHIN THE STI PULATED TIME PERIOD, DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB OF THE ACT. 5. IN SUPPORT OF HIS CONTENTION THAT MERE NOT FILIN G THE AUDIT REPORT ELECTRONICALLY WILL NOT DISENTITLE THE ASSESSEE FRO M ITS CLAIM, IF THE SAME IS FILED DURING THE COURSE OF ASSESSMENT PROCEEDING S, LD. A.R. OF THE ASSESSEE HAS PLACED ON RECORD THE ORDER OF THE COOR DINATE BENCH IN THE CASE OF ITO VS M/S MARATHON INDIA LTD. IN ITA NO. 2 87/JP/2018 ORDER DATED 27/06/2018 WHEREIN THE TRIBUNAL HAS OBSERVED A S UNDER: 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WEL L AS THE RELEVANT MATERIALS ON RECORD. THE AO HAS NOT DISPUTED THE EL IGIBILITY OF THE ASSESSEE FOR DEDUCTION U/S 80IE OF THE ACT BEING NA TURE OF BUSINESS AND UNDERTAKING OF THE ASSESSEE ENGAGED IN THE MANUFACT URING OF GOODS OR ARTICLES. ONLY REASONS FOR DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IE OF THE ACT BY THE AO IS NOT FILING OF THE AUDIT REP ORT IN FORM NO. 10CCB ALONG WITH THE RETURN OF INCOME. IT IS ALSO NOT IN DISPUTED THAT THE ASSESSEE FILED THE REQUISITE TAX AUDIT REPORT IN FO RM NO. 10CCB DURING THE COURSE OF ASSESSMENT PROCEEDINGS AND BEFORE THE ASSESSMENT ORDER ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 4 WAS PASSED BY THE AO. THE HONBLE MADRAS HIGH COURT IN CASE OF CIT VS. AKS ALLOY PVT. LTD. 205 TAXMAN 11 WHILE CONSID ERING AN IDENTICAL ISSUE OF NOT FILING OF AUDIT REPORT IN FORM 10CCB A LONG WITH RETURN OF INCOME BUT FILED THE SAME BEFORE THE ASSESSMENT WAS COMPLETED HAS HELD IN PARAS 5 TO 13 AS UNDER:- 5. IN SO FAR AS IT RELATES TO THE SUBSTANTIAL QUES TION OF LAW (1) IS CONCERNED, NAMELY, WHETHER THE FILING OF AUDIT REPO RT IN FORM 10CCB IS MANDATORY, IT IS WELL SETTLED BY A NUMBER OF JUDICIAL PRECEDENTS THAT BEFORE THE ASSESSMENT IS COMPLETED, THE DECLARATION COULD BE FILED. IN FACT, THE SAID ISSUE CAME TO BE DECIDED BY THE KARNATAKA HIGH COURT IN THE CASE IN CIT V. A CE MULTITAXES SYSTEMS (P.) LTD. [2009] 317 ITR 207 (KAR.), WHEREIN IT WAS HELD THAT WHEN A RELIEF IS SOUGHT FOR UNDER SECTION 80IB OF T HE ACT, THERE IS NO OBLIGATION ON THE PART OF THE ASSESSEE TO FILE RETU RN ACCOMPANIED BY THE AUDIT REPORT, THEREBY, HOLDING THAT THE SAME IS NOT MANDATORY. THEREFORE, IT IS CLEAR THAT BEFORE THE ASSESSMENT I S COMPLETED IF SUCH REPORT IS FILED, NO FAULT COULD BE FOUND AGAIN ST THE ASSESSEE. THAT WAS ALSO THE VIEW OF THE DELHI HIGH COURT IN T HE CASE IN CIT V. CONTIMETERS ELECTRICALS (P.) LTD. [2009] 317 ITR 24 9/ 178 TAXMAN 422 (DELHI), WHEREIN THE DELHI HIGH COURT, BY FOLLOWING THE JUDGEMENTS OF THE MADRAS HIGH COURT IN CIT V. A.N. ARUNACHALAM [1994] 208 ITR 481 / 75 TAXMAN 529 AND IN CIT V. JAYANT PATEL [2001] 248 ITR 199/117 TAXMAN 707 (MAD.) HELD THAT THE FILING OF AUDIT REPORT ALONG WITH THE RETURN WAS NOT MANDATOR Y BUT DIRECTORY AND THAT IF THE AUDIT REPORT WAS FILED AT ANY TIME BEFORE THE FRAMING OF THE ASSESSMENT, THE REQUIREMENT OF THE PROVISION S OF THE ACT SHOULD BE HELD TO HAVE BEEN MET. 6. THAT IS ALSO THE CONSISTENT VIEW OF THE OTHER HI GH COURTS, INCLUDING THE HIGH COURT OF BOMBAY IN CIT V. SHIVAN AND ELECTRONICS [1994] 209 ITR 63 / 75 TAXMAN 93 (BOM.), APART FROM GUJARAT HIGH COURT IN ZENITH PROCESSING MILLS V. CIT [1996] 219 ITR 721 (GUJ.) AND PUNJAB AND HARYANA HIGH COURT IN CIT V. MAHALAXMI R ICE FACTORY [2007] 294 ITR 631/ 163 TAXMAN 565 (PUNJ. & HAR). 7. THE CALCUTTA HIGH COURT IN THE CASE IN THE CIT V . BERGER PAINTS (INDIA) LTD. [2002] 254 ITR 503/[2003] 126 TAXMAN 435 (CAL.) HAS ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 5 ALSO CONCURRED WITH THE SAID VIEW WHICH WAS FOLLOWE D BY THE TRIBUNAL IN THIS CASE. 8. MR. T. RAVIKUMAR, THE LEARNED COUNSEL FOR THE AP PELLANT IS NOT ABLE TO PRODUCE ANY OTHER JUDGEMENT CONTRARY TO THE ABOVE SAID VIEWS CONSISTENTLY TAKEN. 9. IN THE LIGHT OF THE ABOVE, BY VIRTUE OF HIERARCH Y OF JUDGEMENTS WHICH ARE AGAINST THE REVENUE, THE SUBSTANTIAL QUES TION OF LAW (1) WOULD NOT ARISE AT ALL FOR CONSIDERATION. 10. IN SO FAR AS THE SUBSTANTIAL QUESTION OF LAW (2 ) IS CONCERNED, IT RELATES TO THE DELETION OF ADDITION OF RS. 1,20,00, 000/- MADE UNDER SECTION 68 OF THE ACT BY THE ASSESSING OFFICER AS U NEXPLAINED SHARE APPLICATION MONEY, AND THE ISSUE HAS BEEN COVERED B Y THE JUDGEMENT OF THE MADRAS HIGH COURT IN THE CASE IN C IT V. GOBI TEXTILES LTD. [2007] 294 ITR 663/[2008] 170 TAXMAN 142 (MAD.) HOLDING AGAINST THE REVENUE. 11. IN SUCH VIEW OF THE MATTER, THE SUBSTANTIAL QUE STION OF LAW (2) ALSO DOES NOT MERIT CONSIDERATION. 12. IN FACT, TO ARRIVE AT SUCH CONCLUSION, THE MADR AS HIGH COURT HAS RELIED ON THE JUDGEMENT OF THE DELHI HIGH COURT IN CIT V. STELLAR INVESTMENT LTD. [1991] 192 ITR 287/ 59 TAXMAN 568 (DELHI), WHICH JUDGEMENT HAS BEEN CONFIRMED BY THE HONOURABLE APEX COURT AND THE SAME WAS REPORTED IN CIT V. STELLER INVESTMENT LTD. [2001] 115 TAXMAN 99 / 251 ITR 263 (SC). 13. IN THE LIGHT OF THE ABOVE, NO QUESTION OF LAW M UCH LESS SUBSTANTIAL QUESTION OF LAW WOULD ARISE FOR CONSIDE RATION. ACCORDINGLY, THE TAX CASE APPEAL STANDS DISMISSED. CONNECTED MISCELLANEOUS PETITION IS CLOSED. HOWEVER, THERE IS NO ORDER AS TO COSTS. THE ORDER OF HONBLE MADRAS HIGH COURT HAS BEEN AFF IRMED BY THE HONBLE SUPREME COURT IN CASE OF CIT VS. G.M. KNITT ING INDUSTRIES (P.) LTD.(SUPRA). ACCORDINGLY, IN VIEW OF THE VARIOUS BI NDING PRECEDENT AS RELIED UPON BY THE LD. CIT(A) WHILE ALLOWING THE CL AIM OF THE ASSESSEE, ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 6 WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUG NED ORDER OF THE LD. CIT(A). HENCE, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A). 6. IN VIEW OF ABOVE JUDICIAL PRONOUNCEMENTS, THERE I S NO REASON TO OUT RIGHTLY DECLINE THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT ONLY ON THE PLEA OF THE REPORT NOT FILED ELECTRONICALLY AND WHEN THE REPORT WAS DULY SUBMITTED BEFORE THE ASSESSING OFFICER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS. SINCE THE ASSESSING OFFICER HAS OUT RI GHTLY DECLINED THE ASSESSEES CLAIM OF DEDUCTION U/S 80IB OF THE ACT M ERELY FOR NON-FILING OF REPORT ELECTRONICALLY, THERE IS NO MERIT IN THE ACT ION OF THE ASSESSING OFFICER TO DECLINE CLAIM OF DEDUCTION U/S 80IB, UNL ESS THE ASSESSEE HAD FAILED TO FULFILL THE CONDITIONS STIPULATED U/S 80I B OF THE ACT IN RESPECT OF HOUSING PROJECT. NO WHERE THE ASSESSING OFFICER HAS POINTED OUT FAILURE OF THE ASSESSEE TO FULFILL ANY OF THE CONDITIONS RE QUIRED TO BE FULFILLED FOR CLAIM OF DEDUCTION U/S 80IB OF THE ACT, ACCORDINGLY , THERE IS NO MERIT IN THE ACTION OF THE ASSESSING OFFICER IN DECLINING TH E CLAIM OF DEDUCTION U/S 80IB OF THE ACT. IN THE SUBSTANTIAL INTEREST OF JUSTICE, WE RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WIT H A DIRECTION TO ALLOW THE CLAIM OF DEDUCTION U/S 80IB OF THE ACT IF THE C ONDITIONS SPECIFIED THEREIN ARE FULFILLED BY THE ASSESSEE LIKE COMPLETI ON CERTIFICATE ETC.. I DIRECT ACCORDINGLY. ITA 249/JP/2018 M/S UNIQUE BUILDERS & DEVELOPERS (AJIT) VS. DCIT 7 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MARCH, 2019 SD/- JES'K LH 'KEKZ ( RAMESH C SHARMA ) YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 27 TH MARCH, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANTS- M/S UNIQUE BUILDERS AND DEVELOPERS (AJIT), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE D.C.I.T., CENTRAL CIRCLE-2, JAIPU R. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 249/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR