The Deputy Commissioner of Income Tax, Circle-3(1), Visakhapatnam V. Kalyan Aqua & Marine Exports India Private Limited, Visakhapatnam

ITA 32/VIZ/2021

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7353 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2017-2018
• Appeal Filed On: 21-03-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RADHA KEERTHI
• Section: 142(1); 80IB; 139(5); 143(2); 139(1)

Judgement Text

आयकर अपीऱीयअधिकरण, विशाखापटणम पीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्ि ू रु आर एऱ रेड्डी, न्याययक सदस्य एिं श्री एस बाऱाक ृ ष्णन, ऱेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अऩीऱ सं./ I.T.A. No.32/Viz/2021 (ननधधारण वषा / Assessment Year :2017-18) The DCIT, Circle-3(1), Visakhapatnam. Vs. M/s. Kalyan Aqua & Marine Exports India Pvt Ltd., Visakhapatnam. PAN: AADCK 2221 M (अऩीऱधथी/ Appellant) (प्रत्यथी/ Respondent) अऩीऱधथी की ओर से/ Assessee by : Smt. Radha Keerthi, CA प्रत्यधथी की ओर से / Revenue by : Sri ON Hari Prasadarao, Sr. AR स ु नवधई की तधरीख / Date of Hearing : 30/06/2022 घोषणध की तधरीख/Date of Pronouncement : 14/07/2022 O R D E R PER S. BALAKRISHNAN, Accountant Member : This appeal filed by the Revenue against the order of the Ld. CIT(A)-1, Visakhapatnam in ITA No.10519/2019-20/CIT(A)- 1/VSP/2020-21, dated 16/09/2020 for the AY 2017-18. 2. At the outset, we observe from Form-36 filed by the Revenue that the date of service of communication of the order is 2 16/09/2020. However, the Revenue has filed the appeal on 22/3/2021 with a delay of 120 days. The Revenue has not filed any condonation petition regarding delay. However, as per the decision of the Hon’ble Supreme Court in SMW(A) No.3 of 2020, the period of limitation for filing the appeals under general laws and all special laws falling between 15/3/2020 and 28/02/2022 shall be excluded for calculating the delay. Considering the same, we hereby condone the delay of 120 days in filing the present appeal before the Tribunal and proceed to adjudicate the case on merits. 3. Brief facts of the case are that the assessee a domestic company engaged in manufacturing of food processing unit filed its return of income for the AY 2017-18 on 26/10/2017 declaring a total income of Rs. 28,42,090/- after claiming deduction u/s. 80-IB of the Act for Rs. 2,35,97,287/-. The assessee subsequently filed the return U/s. 139(9) on 8/3/2018 and further U/s. 139(5) of the Act on 11/9/2018 declaring the same total income. The return of income filed by the assessee was selected for scrutiny under CASS and accordingly statutory notices U/s. 143(2) and 142(1) were issued electronically called for information. Based on the information furnished by the 3 assessee during the assessment proceedings, the AO noticed that the assessee has not filed Form-10CCB as prescribed under Rule 18BBB of the IT Rules, 1962 along with ITR filed U/s. 139(1) or 139(9) of the Act. Accordingly, the AO disallowed the deduction claimed U/s. 80IB of the Act and added 2,35,97,287/- to the total income of the assessee. Aggrieved by the order of the Ld. AO, the assessee filed an appeal before the CIT(A). The Ld. CIT(A) considering the submissions made by the assessee’s Representative relying on the decisions of various High Courts / Tribunals held that filing of Form-10CCB is directory and can be filed during the assessment proceedings and hence deleted the disallowance made by the AO. Aggrieved by the order of the Ld. CIT(A), the Revenue is in appeal before us. 4. The Revenue has raised three grounds of appeal however the only grievance of the Revenue is with respect to deletion of addition of Rs. 2,35,97,287/- made by the Ld.CIT(A) where the assessee has not filed the prescribed Form 10CCB while filing the return of income. 5. Before us, the power holder Sri M. Srikant, CA did not appear and deputed Smt. Radha Keerthi, CA to represent the case. Smt. Radha Keerthi submitted that due to technical 4 reasons in the on-line filing portal of the Income Tax Department, the assessee was not able to file the Form-10CCB along with return of income U/s. 139(1). The Ld. AR pleaded that the assessee could file the Form-10CCB only on 19/3/2018. Per contra, the Ld. DR argued that even though there is a delay in filing the Form-10CCB which was filed on 19/3/2018, the assessee could not produce Form-10CCB as claimed to be prepared along with tax audit report and statutory reports of the assessee. Hence, the Ld. DR pleaded that the assessee has prepared the Form-10CCB only on 19/3/2018 and uploaded on the same date and consequently disallowance made by the Ld. AO is in accordance with law. 6. We have heard the rival contentions and perused the materials available on record and the orders of the Authorities below. We find that even though it is claimed by the Ld. AR that there was a technical error which prevented the assessee from filing/uploading the Form-10CCB along with return of income filed U/s. 139(1), the Ld. AR could not produce the Form-10CCB claimed to have been prepared by the assessee on the date of filing of return of income U/s. 139(1) of the Act. The Ld. CIT(A) simply relied on the plea of the assessee that the assessee has 5 obtained the Form 10CCB along with the other statutory reports but has not called for its verification. On query from the Bench to produce the Form 10CCB of the Act prepared on 26/10/2017 as claimed by the assessee, the Ld. AR could not produce the same before us. Ld. AR simply relied on the online submission of Form-10CCB on 19/3/2018. In view of the above, we are of the considered view that since the Form-10CCB is not filed along with the return of income rejecting the claim of the assessee by the Ld. AO is in accordance with law and we hereby uphold the order of the Ld. AO and quash the order of the Ld. CIT(A). It is ordered accordingly. 7. In the result, appeal filed by the Revenue is allowed. Pronounced in the open Court on the 14 th July, 2022. Sd/- Sd/- (द ु व्ि ू रु आर.एऱ रेड्डी) (एस बाऱाक ृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER ऱेखा सदस्य/ACCOUNTANT MEMBER Dated : 14.07.2022 OKK - SPS 6 आदेश की प्रतिलिपि अग्रेपिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee – M/s. Kalian Aqua & Marine Exports India Pvt Ltd., MIG-25B, Lawsons Bay Colony, Visakhapatnam, Andhra Pradesh – 530017. 2. रधजस्व/The Revenue – DCIT, Circle-3(1), Income Tax Office, Infinity Tower, Shankaramatham Road, Santhipuram, Visakhapatnam, Andhra Pradesh-530016. 3. The Principal Commissioner of Income Tax-1, Visakhapatnam. 4. आयकर आय ु क्त (अऩीऱ)/ The Commissioner of Income Tax-1, Visakhapatnam. 5. ववभधगीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, ववशधखधऩटणम/ DR, ITAT, Visakhapatnam 6. गधर्ा फ़धईऱ / Guard file आदेशधन ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam