Mrs. Umesh Chandra Dalakoti, Uttrakhand V. ACIT, Uttrakhand

ITA 3353/DEL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52707 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 27-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR B R R KUMAR
• Keywords: Condonation of delay
• Section: 80IB; 10B; 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H NEW DELHI) BEFORE SMT, DIVA SINGH, JUDICIAL MEMBER AND SHRI B.K. HALDAR, ACCOUNTANT MEMBER I.T.A. NO.3353 /DEL/2011 ASSESSMENT YEAR : 2008-09 SHRI UMESH CHANDER DALAKOTI, ACIT, DALAKOTI COMPOUND, HALDWANI DISTT., RAMPUR ROAD, DISTT. NAINITAL. UTTRAKHAND. UTTRAKHAND. V. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AAQPD AAQPD AAQPD AAQPD- -- -5560 5560 5560 5560- -- -Q QQ Q APPELLANT BY : SHRI K. SAMPATH, ADVOCATE. RESPONDENT BY : SHRI DR. B.R.R. KUMAR, SR. DR. ORDER PER B.K. HALDAR, AM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER O F LD CIT(A)-II, DEHRADUN DATED 11.5.2011 ON AN ORDER PASSED BY THE ASSESS ING OFFICER U/S 154/143(1) OF THE INCOME TAX ACT, 1961 FOR ASSESSMENT Y EAR 2008-09. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS OF APPEALS:- 1.THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD CIT(A) II, DEHRADUN HAS ERRED IN LAW AND ON FACTS IN CONFIRMING T HE ACTION OF THE LD ASSESSING OFFICER IN MAKING DISALLOWANCE OF CLAIM OF ` .13,33,525/- U/S 80IC ITA NO3353./DEL/2011 2 ON ACCOUNT OF NOT FILING OF THE INCOME TAX RETURN ON DUE DATES COMPLETELY IGNORING THE REASONABLENESS OF THE DELAYED FILING WHICH WA S ATTRIBUTED TO THE FAULT OF THE COUNSEL AND NOT THE ASSESSEE. 2. THAT LD CIT(A) ALSO ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ACTION OF THE LD ASSESSING OFFICER IN MAKING DISALL OWANCE OF CLAIM OF `.18,465/- U/S 80IB ON ACCOUNT OF NOT FILING OF THE INCOME TAX RETURN ON THE DUE DATES COMPLETELY IGNORING THE REASONABLENESS OF THE DELA YED FILING WHICH WAS ATTRIBUTED TO THE FAULT OF THE COUNSEL AND NO T THE ASSESSEE. 3. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, A MEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIMER OF HEARING AND A LL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. IN THIS CASE THE RETURN FOR THE RELEVANT ASSESSMENT YEAR WAS FILED BY THE ASSESSEE ON 31.3.2009 DECLARING TOTAL INCOME OF `.3,46,1 20/-. THE SAME WAS PROCESSED U/S 143(1) OF THE ACT BY DISALLOWING AMOUNT OF `.13,33,526/- AND `.18,465/- CLAIMED BY THE ASSESSEE U/S 80IC & 80IB OF TH E ACT. CREDIT OF CHALLAN FOR `.35,000/- WAS ALSO NOT ALLOWED. THUS, ON PROCESS ING OF SAID RETURN A DEMAND OF `.6,68,240/- WAS RAISED. 3. SUBSEQUENTLY, THE ASSESSEE MOVED A RECTIFICATION PETITION U/S 154 OF THE ACT WHEREIN THE FOLLOWING CLAIMS WERE MADE:- 1. THE ASSESSEE HAS NOT BEEN GIVEN THE CREDIT OF `.55,000/- BEIN G THE ADVANCE TAX DEPOSITED FOR THE RELEVANT ASSESSMENT YEAR BUT O NLY OF `.20,000/-. ITA NO3353./DEL/2011 3 2. SECONDLY, THE ASSESSEE HAS NOT BEEN GIVEN THE BENEFIT OF DEDUCTI ON U/S 80IC TO THE TUNE OF `.13,33,525.56/- BEING THE AMOUNT OF ELIGIBLE PROFIT FROM M/S JAKSON INDUSTRIES. 3. THE ASSESSEE HAS ALSO NOT BEEN GIVEN THE BENEFIT OF DEDUCTION U/S 80IB TO THE TUNE OF `.18,465/- BEING THE AMOUNT OF ELIGIBLE PROFI T FROM M/S ABYAY TALC. 4. THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE U /S 80IC & 80IB OF THE ACT AS THE DUE DATE FOR FILING OF RETURN U/S 139(1) OF THE ACT WAS 31.10.2008 WHEREAS THE ASSESSEE FURNISHED THE RETURN BELATEDLY ON 31.3.20 09. AGGRIEVED, THE ASSESSEE FILED THE APPEAL BEFORE THE LD CIT(A). 5. BEFORE THE LD CIT(A) IT WAS CONTENDED BY THE ASSESSEE THA T THE ASSESSEE DELIVERED TO THE COUNSEL MR. SUDHANSU SRIVASTAVA, ADVOCAT E, THE INCOME TAX RETURN DULY SIGNED BEFORE THE DUE DATE FOR FILING OF RETURN U/S 139(1) OF THE ACT. HOWEVER, THE COUNSEL FAILED TO SUBMIT THE SAME TO THE DEPARTMENT ON OR BEFORE DUE DATE. IT WAS, THEREFORE, CONTENDED THAT THE CLAIM OF THE ASSESSEE U/S 80IB & 80IC SHOULD BE ALLOWED. RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS- 1.) BAJAJ TEMPO LTD. V. CIT 196 ITR 188 (SC). 2.) ORDER OF THE ITAT, DELHI BENCH B IN THE MATTER OF ACIT V. DHIR GLOBAL INDUSTRIES PVT. LTD. IN I.T.A. NO. 2317/DEL/2011. 6. THE LD CIT(A) OPINED THAT THERE WAS NO DISPUTE THAT THE RETURN OF INCOME WAS FURNISHED BELATEDLY. SECTION 80AC PROHIBITS ALLOWANCE OF BENEFIT U/S 80IB AND 80IC OF THE ACT IF THE RETURN WAS FURNISHED BEYOND THE PRESCRIBED DATE U/S 139(1) OF THE ACT. THE CASE LAWS CITED BY THE ASSESSEE WERE NOT OF AN Y HELP BECAUSE THE ITA NO3353./DEL/2011 4 SAME LAID DOWN GENERAL PRINCIPLES WHICH WERE NOT AT ALL APPLICATION ON THE FACTS OF THE PRESENT CASE. THE ORDER CHALLENGED BY THE ASSESSEE BEING P ASSED BY THE ASSESSING OFFICER U/S 154 OF THE ACT AND AS THE LAW DID NOT PROVIDE FOR CONDONATION OF DELAY IN FILING THE RETURN ON ACCOUNT OF REASONABL E CAUSE, THE LD CIT(A) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. AGGRIEVED, THE ASSESSEE H AS FILED APPEAL BEFORE THE TRIBUNAL. 7. BEFORE US, THE LD AR FOR THE ASSESSEE IN ADDITION TO REL YING ON THE SUBMISSION MADE BEFORE THE AUTHORITIES BELOW, SUBMITTED THAT SECTION 8 0AC OF THE ACT SHOULD BE CONSIDERED AS DIRECTORY AND NOT MANDATORY. RELIANCE W AS PLACED ON THE FOLLOWING CASE LAWS:- 1. CHURCHES AUXILIARY FOR SOCIAL ACTION ANR. V. DIRECTOR OF INCOME TAX (EXEMPTION) 7 OTHERS 325 ITR 362 (DEL.). 2. ACIT V. DHIR GLOBAL INDUSTRIES PVT. LTD. 43 SOT 640 ( DEL.). 3. CIT V. INTEGRATED DATA BASIS INDIA LTD. 178 TAXMAN 43 2 (DEL.). 8. IT WAS ALSO CONTENDED BY HIM THAT EVEN OTHERWISE THE DEL AY BEING ONLY FOR A PERIOD OF FEW MONTHS SHOULD BE CONDONED. RELIANCE WAS PL ACED ON THE FOLLOWING CASE LAWS:- 1. CIT V. NATIONAL TAJ TRADERS PVT. LTD. `121 ITR 535 ( SC). 2. CIT V. MAHALAXMI RICE FACTORY 294 ITR 631 (P&H). 9. THE LD DR, ON THE OTHER HAND, IN ADDITION TO RELYING ON THE ORDERS OF THE AUTHORITIES BELOW, SUBMITTED THAT IT WAS TO BE NOTED TH AT THE ORDER OF THE ASSESSING OFFICER FROM WHICH THE APPEAL HAS ARISEN WAS PASSED U/S 154 OF THE ACT. SECTION ITA NO3353./DEL/2011 5 80AC CLEARLY STATES THAT IF THE RETURN IS NOT FURNISHED WITHIN THE SPECIFIED PERIOD, NO DEDUCTION U/S 80IB OR 80-IC SHOULD BE ALLOWED. THERE I S NO DISCRETION GIVEN TO ANY AUTHORITY UNDER THE ABOVE SECTION. IT WAS FURTHER SUBMI TTED BY HIM THAT THE CASE LAWS RELIED ON BY THE ASSESSEE ARE NOT WITH REFERENCE TO DEDUC TION ALLOWABLE UNDER CHAPTER-VIA. THE HON'BLE TRIBUNALS ORDER IN THE CASE OF DHIR GLOBAL IS WITH REFERENCE TO SECTION 10B I.E. WITH REFERENCE TO EXEMPTION ALLOW ABLE UNDER CHAPTER- III OF THE ACT. NONE OF THE CASE LAWS CITED BY THE ASSESS EE RELATES TO FURNISHING OF RETURN BUT FURNISHING OF CERTAIN DOCUMENTS ALONG WITH THE RETURN. IT WAS, THEREFORE, CONTENDED BY HIM THAT THE RATIO LAID DOWN BY THE ABOVE C ASES CANNOT BE IMPORTED TO THE DEDUCTION ALLOWABLE AS PER CHAPTER-VIA OF THE ACT. EVEN OTHERWISE, IF THE ISSUE IS DEBATABLE SECTION 154 OF THE ACT WOULD NOT APPL Y. 10. IN THE REJOINDER, IT WAS SUBMITTED BY THE LD AR FOR THE ASSESSEE THAT BOTH THE SECTION 10B(5) AND SECTION 80AC ARE PROCEDURAL PROVISI ON AND THEREFORE, THE RATIO LAID DOWN BY THE CASE LAWS WOULD APPLY IN THE PRESENT C ASE ALSO. IT WAS FURTHER CONTENDED BY HIM THAT THE CLAIM OF THE ASSESSEE U/S 80IC & 80IB WAS WRONGLY DENIED BY THE ASSESSING OFFICER AND THEREFORE SECTION 154 WA S APPLICABLE. RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS:- 1. COLLECTOR, LAND ACQUISITION V. MST. KATIJI AND OTHERS . 167 ITR 471 (SC). 2. CONCORD OF INDIA, INSURANCE CO. LTD., V. SMT. NIRMA LA DEVI & OTHERS 118 ITR 507 (SC). 11. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD. WE HAV E ALSO GONE THROUGH THE CASE LAWS RELIED ON BY THE LD AR FOR THE AS SESSEE. WE NOTE THAT THE IMPUGNED ORDER OF THE ASSESSING OFFICER WAS PASSED U/S 1 54 OF THE ACT. THUS, EVEN IF THE ISSUE IS DEBATABLE, NO RECTIFICATION U/S 154 COU LD BE MADE BY THE ASSESSING ITA NO3353./DEL/2011 6 OFFICER. WE ALSO NOTE THAT THE CASE LAWS RELIED ON BY THE LD AR FOR THE ASSESSEE ARE NOT DIRECTLY ON SECTION 80AC OF THE ACT. SUB SECTION 1 0B(5) CANNOT BE SAID TO BE PARI MATERIA WITH SECTION 80AC OF THE ACT. IN THE ABOVE VIEW OF THE MATTER, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD CIT(A) W ITH REFERENCE TO THE DISPUTED ISSUES AND CONFIRMED THE SAME. THUS, THE GROUNDS TAKEN B Y THE ASSESSEE ARE REJECTED. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISM ISSED. 13. ORDER PRONOUNCED IN THE OPEN COURT ON THE 16 TH DAY OF SEPTEMBER, 2011. SD/- SD/- (DIVA SINGH) (B.K. HALDA R) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 16.9.2011. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING DATE OF DICTATION ITA NO3353./DEL/2011 7 DATE OF ORDER SIGNED BY THE HON'BLE MEMBER.