M/s Symbiosis Pharmaceuticals Pvt. Ltd., Jagadhari V. DCIT, Yamunanagar

ITA 501/CHANDI/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 6774 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2013-2014
• Appeal Filed On: 17-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVI SARANGA L
• Keywords: Revision of order; Document seized; Opportunity of being heard; Proportionate interest; Reasonable cause; Corroborative evidences; Commercial expediency; Revised return; Documents seized
• Section: 54; 10; 139; 92E; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B CHANDIGARH BEFORE MS. DIVA SINGH, JUDICIAL MEMBER AND DR. B.R.R.KUMAR, ACCOUNTANT MEMBER ITA NO 501/CHD/2017 ASSESSMENT YEAR: 2013-14 M/S SYMBIOSIS PHARMACEUTICALS P.LTD., VS THE DCIT ., 37/1, KAMBOJ COLONY,NEAR RAVI METAL, CIRCLE, JAGADHRI. YAMUNA NAGAR. PAN : BQUPK4845C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT GOEL, CA RESPONDENT BY : SHRI RAVI SARANGAL, CIT-DR DATE OF HEARING : 26.07.2017 DATE OF PRONOUNCEMENT : 04.10.2017 ORDER PER DIVA SINGH,JM THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 28.10.2016 OF LD. CIT (APPE ALS) PANCHKULA PERTAINING TO 2013-14 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS . 1. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FAC TS IN NOT ALLOWING DEDUCTION U/S 80IC AMOUNTING RS. 1, 16,26, 310/- 2. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN CONFIRMING THE ADDITION OF RS.93,237/- ON ACCOUNT OF PROPORTIONATE INTEREST ON ADVANCES, 3. THE LEARNED CIT (APPEALS) HAS ERRED IN LAW AND FACT S IN CONFIRMING AN ADDITION OF RS. 42,975/- OUT OF ESI AND PF PAYMENTS. 2. THE HEARING IN THE PRESENT APPEAL TOOK PLACE ON 05.07 .2017, 13.07.2017 AND FINALLY CONCLUDED ON 26.07.2017. HOWEVER, BEFO RE WE ADDRESS THE GROUNDS RAISED BY THE ASSESSEE, IT IS PERTIN ENT TO FIRST ADDRESS THE DELAY OF 21 DAYS POINTED OUT BY THE REGIST RY IN THE FILING OF THE PRESENT APPEAL BY THE ASSESSEE. 2.1 THE LD. AR INVITING ATTENTION TO THE CONDONATION OF DE LAY APPLICATION FILED BY THE DIRECTOR SUBMITTED THAT THE ORDER DATED 28.102016 WAS RECEIVED BY THE ASSESSEE ON 18.11.2016 AN D WAS HANDED OVER TO THE CHARTERED ACCOUNTANT SHRI SUMIT AGGARWAL. T HE SAID COUNSEL ADVISED THAT FOUR MONTHS TIME WAS AVAILABLE FOR FILING THE AP PEAL BEFORE THE ITAT AND SINCE HE WAS NOT APPEARING BEFORE THE ITA T, HE WOULD ENGAGE SOME OTHER PROFESSIONAL FOR FILING OF THE APPEAL. T HE SAID CHARTERED ACCOUNTANT ON HIS VISIT TO A PROFESSIONAL IN AMB ALA FOR FILING OF ITA 501/CHD/2017 A.Y. 2013-14 PAGE 2 OF 19 THE APPEAL, IT WAS SUBMITTED, THEN LEARNT THAT THE TIME LIM IT FOR FILING THE APPEAL BEFORE THE ITAT WAS INFACT 60 DAYS FROM THE DATE OF THE ORDER AND NOT 120 DAYS AS UNDERSTOOD BY HIM. ACTING ON THE SAID IN FORMATION, THE ASSESSEE WAS ACCORDINGLY ADVISED WHO PROMPTLY FILED THE APPEAL. THE SAID APPEAL, IT WAS SUBMITTED, WAS LATE BY 21 DAYS SOLELY O N ACCOUNT OF THE IGNORANCE OF THE COUNSEL. RELYING UPON; (A) IMPROVEMENT TRUST LUDHIANA VS. UJAGAR SINGH & ORS CIVIL APPEAL NO. 23 95 OF 2008 OF JUNE 9, 2010, (B) JAYVANTSINH N VAGHELA VS. INCOME TAX OFFICER 40 TAXMANN.COM 491 (GUJARAT) AND (C) PARAS RICE MILLS KUR UKSHETRA VS. CIT KARNAL ITA NO. 657 OF 2009 (P&.H), PRAYER FOR CONDO NING THE DELAY WAS MADE. 2.2 THE LD. CIT-DR SHRI RAVI SARANGAL CONSIDERING THE COND ONATION OF DELAY APPLICATION AND THE SUBMISSIONS AND FACTS ON RECORD STATED THAT HE HAD NO OBJECTION IF THE DELAY IS CONDONED. 2.3 CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND THE SU BMISSIONS OF THE PARTIES BEFORE BENCH, WE ARE OF THE VIEW THAT THE DELAY HAS OCCURRED IN THE PECULIAR FACTS FOR REASONS BEYOND THE CO NTROL OF THE ASSESSEE. THE DELAY, ACCORDINGLY, IS CONDONED. 3. ADDRESSING THE GROUNDS RAISED IN THE PRESENT APPEAL, LD. AR INVITED ATTENTION TO THE IMPUGNED ORDER AND SUBMITTED THAT THE FACTS RELATABLE TO THE FIRST ISSUE AGITATED BY THE ASSESSEE ARE BROUGHT OU T AND DISCUSSED BY THE CIT(A) IN PARA 5. REFERRING TO THE ORDER, IT WAS SUBMIT TED, THAT THE SUBMISSIONS MADE BEFORE THE AO WERE REITERATED, HOWEVER, THE CIT(A) RELYING UPON THE DECISION OF THE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA VS CIT 266 ITR 1 (S.C.) AND DECISION OF THE CHENNA I BENCH OF THE ITAT IN THE CASE OF P BHAVANI VS ACIT (2015) 61 TA XMAN.COM 251 AND OTHER RELATED DECISIONS WHICH WERE NOT APPLICABLE TO T HE FACTS OF THE CASE, DISMISSED THE GROUND. 3.1 IT WAS HIS SUBMISSION THAT THE DISMISSAL OF THE GROU ND ON FACTS WAS NOT JUSTIFIED AS THERE WAS NO DISPUTE ON THE ASPECT THA T ALL THE RELEVANT DOCUMENTS WHICH WERE REQUIRED TO BE FILED BY THE ASSESS EE IN SUPPORT OF THE DEDUCTION U/S 80IC, ADMITTEDLY WERE FILED WELL WITHIN TIME WITHIN THE RESTRICTED MEANING OF FILING OF THE RETURN. IT WAS ALSO HIS SUBMISSION THAT THE CIT(A) WRONGLY RELIED ON THE CASE OF SHRI PARKASH NA TH KHANNA 266 ITR 001 (SC). THE ISSUE FOR CONSIDERATION IN THE SAID DECI SION, IT WAS SUBMITTED, WAS THE PROVISIONS OF SECTION 276CC. SECTION 276 CC, IT WAS ITA 501/CHD/2017 A.Y. 2013-14 PAGE 3 OF 19 SUBMITTED, IS A CHARGING SECTION AND SECTION 80AC READ WIT H SECTION 80IC ARE PROCEDURAL PROVISIONS. RELYING UPON CIT VS NAT IONAL TAJ TRADERS 121 ITR 535(S.C), IT WAS SUBMITTED THAT IT IS A WELL SETTLED PRINCIPLE THAT THE FISCAL STATUTE SHOULD BE CONSTRUED STRIC TLY IS APPLICABLE ONLY TO THE TAXING PROVISIONS, SUCH AS THE CHARGING PROV ISIONS OR THE PROVISIONS FOR PROSECUTION ETC. SECTION 276CC, IT WAS SUB MITTED, DEALS WITH PROSECUTION MATTERS. THUS, THE PRINCIPLE THAT CHARGIN G PROVISIONS SHOULD BE STRICTLY INTERPRETED, WAS FULLY APPLICABLE. HENCE, IT WAS NOT APPLICABLE TO THE PROCEDURAL PROVISIONS WITH WHICH WE ARE C ONCERNED. ACCORDINGLY, THE VIEW TAKEN BY THE COURTS WHILE CONSIDE RING THE REQUIREMENTS OF SECTION 276CC HAS NO ROLE TO PLAY IN THE PRESENT PROCEEDINGS. THE DIFFERENCE, IT WAS SUBMITTED, HAS BEEN NOT ED BY THE SUPREME COURT ITSELF AS IT TAKES NOTE OF THE DIFFERENT TRE ATMENTS GIVEN TO THE RETURNS FILED U/S 139(1) AND 139(4) AS WOULD BE EVIDENT FROM PARA 20 OF THE SAID DECISION WHEREIN IT HAS BEEN HELD THAT, FOR THE PURPOSES OF ASSESSMENT AND LOSSES SET OFF, RETURN U/S 139(1) AND 1 39(4) IS TAKEN AS ONE. THE MERE FACT THAT FOR THE PURPOSES OF ASSESSM ENT AND CARRYING FORWARD AND TO SET OFF LOSSES IT IS TREATED AS ONE FILED WITHIN SUB-SS(1) OR (2) CANNOT BE PRESSED INTO SERVICE TO CLAIM IT TO BE ACTU ALLY ONE SUCH, THOUGH IT IS FACTUALLY AND REALLY NOT BY EXTENDING IT BEYOND ITS LEGITIMATE PURPOSE. ACCORDINGLY, IT WAS HIS SUBMISSION THAT EVEN THE JUDGEMEN T OF THE APEX COURT IN THE CASE OF SHRI PARKASH NATH KHANNA RECOGNIZ ES THE FACT THAT DIFFERENT TREATMENT HAS TO BE GIVEN TO THE RETURNS FILED U /S 139(1) AND 139(4). 3.2 IN THE SAID BACKGROUND, IT WAS SUBMITTED THAT FOR REA SONS BEYOND THE CONTROL OF THE ASSESSEE, THE DELAY IN FILING OF THE RETUR N HAS OCCURRED AND SINCE ALL RELEVANT SUPPORTING DOCUMENTS IN SUPPORT OF THE BELATED RETURN STOOD FILED WELL WITHIN TIME, NO PREJUDICE IS CAUSED TO THE REVENUE FOR FILING OF THE RETURN LATE IN THE PECULIAR FACTS OF THE PRES ENT CASE. THE OCCASION TO INTERPRET ETC. IN VIEW OF THE SUPPORTING DOCUMENTS/REQUIREMENTS HAVING ALREADY COMPLIED WITH WITHIN TIME AND AS SUCH MADE AVAILABLE TO THE TAX AUTHORITIES IS A CONSIS TENT FACT ON RECORD. TO STILL INSIST ON THE HYPER TECHNICAL APPROACH TO DENY THE LEGITIMATE AND GENUINE CLAIM IN THE CIRCUMSTANCES RELYING O N PRINCIPLES OF LAW NOT APPLICABLE TO THE CASE WAS ASSAILED. REFERRING TO THE ASSESSMENT ORDER, IT WAS SUBMITTED, THAT THE AO HAS REQ UIRED THE ASSESSEE TO EXPLAIN WHY THE RETURN OF INCOME WAS NOT FILE D ON OR BEFORE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 4 OF 19 THE DUE DATE WHICH WAS 30.09.2013 AS NOTED IN PAGE 2 OF HIS ORDER. INVITING ATTENTION TO PAGE 3 OF THE ASSESSMENT ORDER, IT WAS SUBMITTED, THAT THE RETURN HAD BEEN FILED ON THE BASIS OF BOOK PROFIT REPORT IN FORM NO. 29B SUBMITTED ON 29.09.2013 AND TAX AUDIT REPORT IN FO RM NO. 3CA/3CD ALSO SUBMITTED ON 29.09.2013. REFERRING TO THE RE CORD, IT WAS ALSO SUBMITTED THAT 80IC DEDUCTION WAS SUBMITTED ON 28.1 0.2013. THUS, THE REQUIREMENTS WHICH WERE REQUIRED TO BE FULFILLED FOR MAKING THE SAID CLAIM WERE ADMITTEDLY BEFORE THE DUE DATE AS CONSIDE RED BY THE AO HIMSELF I.E. 30.09.2013. HOWEVER, THE RETURN, ADMITTEDLY WAS FILE D ON 31.03.2014 WHICH IS ALSO THE DUE DATE U/S 139 WHICH COULD HAVE BEEN FILED WITHOUT ATTRACTING ANY PENALTY ETC. THE TAX AUTHOR ITIES IN THE FACTS OF THE PRESENT CASE HAVE TAKEN A LITERAL POSITION BY RECO RDING THAT THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE TH E DATE OF FILING OF AUDIT REPORT IS NOT CONCERNED WITH THE DATE OF FILING OF THE RETURN OF INCOME. THUS, IT WAS HIS SUBMISSION THAT ON FACTS, THERE IS NO DISPUTE. 3.3 INVITING ATTENTION TO PAPER BOOK PAGE NO. 105 TO 107 TO ADDRESS THE REASONS FOR DELAY. REFERRING TO THE SAME, IT WAS SUB MITTED THAT SHRI JAGBIR SINGH, A DIRECTOR OF THE ASSESSEE COMPANY HAS SU BMITTED THAT THE RETURN ALONGWITH AUDIT REPORT ETC. ON THE INCOME TAX PO RTAL WAS ROUTINELY FILED BY THEIR TAX CONSULTANT WHO WAS SHRI A.S.MALH OTRA, C.A. AND AS A MATTER OF NORMAL PRACTICE, DIGITAL SIGNATURES WERE ALSO HANDED OVER TO HIM ALONGWITH THE BOARD RESOLUTION AUTHORIZING HIM TO USE AND AFFIX DIGITAL SIGNATURES ON THE DOCUMENTS TO BE SUBMITTED TO THE INCOME TAX DEPARTMENT. THE SAID C.A., IT WAS SUBMITTED, WAS ALSO A N AUDITOR OF ANOTHER COMPANY BY THE NAME SAITECH MEDICARE PRIVATE LIMITED WHERE THE ASSESSEE COMPANY HAD 77.30% SHARES. APART FROM TH AT, THERE WERE TWO OTHER SHAREHOLDERS NAMELY SHRI RAJAT BHALOTIA AND H IS FATHER SHRI P.D.BHALOTIA WHO HAD FILE A SUITE WITH COMPANY LAW BOARD IN DELHI AGAINST THE MAJOR SHAREHOLDER I.E. THE ASSESSEE AND OTHE R SHAREHOLDERS. THE AUDITOR COLLUDED WITH THE DISSENTING SHAREHOLDERS, AS A RESULT OF WHICH THE RETURN, IT APPEARS, DELIBERATELY WAS FILED LATE DES PITE THE FACT THAT BALANCE SHEET AND AUDIT REPORT WERE FILED WELL WITHIN T IME, MISCHIEF WAS DISCOVERED LATER ON. THESE FACTS, IT WAS SUBMITTED, A RE AVAILABLE ON RECORD BY WAY OF AN AFFIDAVIT AND WHEN THEY ARE CONSIDER ED IN THE BACKGROUND OF THE JUDICIAL PRECEDENT AVAILABLE, IT WAS HIS SU BMISSION THAT THE CLAIM OF THE ASSESSEE HAS WRONGLY BEEN REJECTED. ITA 501/CHD/2017 A.Y. 2013-14 PAGE 5 OF 19 3.4 INVITING ATTENTION TO THE PAPER BOOK, ATTENTION WAS IN VITED TO PAGE NO. 1 TO 19 WHICH IS COPY OF TAX AUDIT REPORT, BALANCE SH EET, PROFIT & LOSS ACCOUNT ALONGWITH ANNEXURES FOR THE YEAR ENDING 31 .03.2013 FILED ON 09.08.2013. COPY OF AUDIT REPORT ON FORM NO. 10CCB FOR DEDUCTION U/S 80IC FILED ON 28.10.2013, IT WAS SUBMITTED, IS AT PAGES 20 TO 23. COPY OF THE AUDIT REPORT IN FORM NO. 3CEB U/S 92E FOR TH E SPECIFIED DOMESTIC TRANSACTION FILED ON 17.11.2013 AVAILABLE AT PAGES 2 4 TO 31. COPY OF WRITTEN SUBMISSIONS FILED BEFORE THE CIT (APPEALS) HIG HLIGHTING THESE FACTS AND SUBMISSIONS, IT WAS SUBMITTED, IS AVAILABLE AT PAGE 33 TO 38. IN THE FACTS, AS THEY STAND, IT WAS HIS SUBMISSION TH AT THE CIT(A) HAS INCORRECTLY, AS ARGUED, RELIED UPON JUDGEMENT OF THE APEX COURT WHICH WAS ENTIRELY IN A DIFFERENT CONTEXT. 3.5 THE RELIANCE PLACED IN THE CASE OF P.BHAVANI 40 ITR (TRIB) 316, P. BHAVANI V ACIT (2015) 61 TAXMAN.COM 251 RELIED UPON BY TH E CIT(A), IT WAS SUBMITTED, WAS WRONGLY APPLIED AS THE FACTS WERE ENT IRELY DISTINGUISHABLE. 3.6 SIMILARLY, ANOTHER DECISION OF THE ITAT CHENNAI BENCH N AMELY DCIT VS SUCRAM PHARMACEUTICALS (2015) 58 TAXMANN.COM 138 AND DWARKADAS G PANCHMATIYA V ACIT (2015) 57 TAXMANN.COM A ND THE DECISION OF THE CHANDIGARH BENCH IN THE CASE OF LAKSHMI EN ERGY & FOODS LTD. V ACIT (2014) 44 TAXMANN.COM 248 RELIED UPON W ERE ENTIRELY DISTINGUISHABLE AND HAVE BEEN WRONGLY APPLIED. 3.7 IN THE FACTS CONSIDERED BY THE CHENNAI BENCH IN TH E CASE OF P. BHAVANI, IT WAS SUBMITTED, THAT THE ASSESSEE HAD NOT CLAIM ED DEDUCTION U/S 80IB. IT WAS A CASE WHERE THE RETURN PROCESSED BY CPC WAS CHALLENGED BY WAY OF RECTIFICATION AND THE RECTIFICATION CLAIM WAS REJEC TED. ON THE CONTRARY, IN THE FACTS OF THE PRESENT CASE, THE AUDIT REPORT HAS BEEN FILED ALONGWITH BALANCE SHEET ON 28.09.2010 AND THE CLA IM U/S 80IC THEREIN AS WOULD BE EVIDENT FROM PAGE 7 OF THE PAPE R BOOK, HAS CORRECTLY BEEN MENTIONED AT RS. 1,16,26,310/-. THE AUDIT REPORT U/S 80IC, AT THE COST OF REITERATION, IT WAS SUBMITTED, WAS ALSO FILED WITHIN THE TIME AS PRESCRIBED U/S 139(1). THUS, THE FACTS AS CONSIDE RED IN P.BHAVANIS CASE, WHERE THE CLAIM OF DEDUCTION ITSELF WAS NOT MADE EVEN IN THE RETURN FILED U/S 139(4), THE CASE WAS ENTIRELY DISTINGUISHABLE. 3.8 THE RELIANCE PLACED UPON THE ANOTHER DECISION OF THE C HENNAI BENCH IN THE CASE OF SUCRAM PHARMACEUTICALS WAS ALSO NOT WARRANTED ON ITA 501/CHD/2017 A.Y. 2013-14 PAGE 6 OF 19 FACTS. IN THE FACTS OF THE SAID CASE, THE RETURN FOR 2010 -11 AND 2011-12 ASSESSMENT YEARS WAS DELAYED. THE DELAY IN FILING OF THE R ETURN BY E- FILING WAS ALLOWED IN 2010-11 ASSESSMENT YEAR. HOWEVER, T HE DELAY IN 2011-12 ASSESSMENT YEAR FOR OBVIOUS REASONS WAS NOT A LLOWED. THUS, IT WAS SUBMITTED THAT IT WOULD NOT BE A PRECEDENT FOR DENY ING THAT THE CLAIM IN CASES WHERE THE CLAIM IS SUPPORTED BY THE BALANCE SHEET, AUDIT REPORT U/S 80IC ARE FILED WELL WITHIN TIME U/S 139(1) IN THE FA CTS OF THAT CASE. IN FACT, RELYING UPON THE PROPOSITION AS CONSIDERE D IN 2010-11 ASSESSMENT YEAR IN THE CASE OF SUCRAM PHARMACEUTICALS, IT WAS SUBMITTED THAT DEDUCTION HAS BEEN ALLOWED IN THAT YEAR HOLDING THAT DELAY IN E-FILING OF IT RETURN COULD BE SAID TO BE REASONAB LE, AS SUCH, DEDUCTION WAS ALLOWED. THEREBY UPHOLDING THE PRINCIPLE THA T IF THE DELAY IS REASONABLY EXPLAINED, DEDUCTION COULD BE ALLOWED, EVEN IN CASES WHERE RETURN CAN BE SHOWN TO BE FILED U/S 139(4) WITH A REASONA BLE EXPLANATION. THE SAID PROPOSITION, INFACT SUPPORTS THE CLAIM OF THE ASSESSEE. 3.9 SIMILARLY THE DECISION OF THE CHANDIGARH BENCH IN THE CA SE OF LAKSHMI ENERGY & FOODS LTD. RELIED UPON BY THE CIT(A), IT W AS SUBMITTED, WAS INCORRECTLY APPLIED. IN THE FACTS OF THAT C ASE, THE DUE DATE FOR FILING THE RETURN WAS 30.09.2008 AND IT HAD BEEN FILE D ON 31.03.2009. THE SHORTCOMING IN THE FACTS OF THE SAID CASE, IT WAS SUBMITTED, WOULD BE EVIDENT ON THE READING OF THE SAID DEC ISION AND WOULD SHOW THAT THE TAX AUDIT REPORT AND THE AUDIT REP ORT U/S 80IC HAD NOT BEEN FILED ALONGWITH RETURN OF INCOME NOR IT HAD BEEN FILE D PRIOR TO THE FINALIZATION OF THE RETURN AND TAX AUDIT REPORT AND TH E AUDIT REPORT U/S 80IB ON FACTS WAS FILED DURING THE ASSESSMENT PROCEE DINGS. THE FACTS, IT WAS SUBMITTED, WERE ENTIRELY DISTINGUISHABLE AS IN T HE FACTS OF THE PRESENT CASE, THE BALANCE SHEET, AUDIT REPORT AND C LAIM U/S 80IC CORRECTLY MENTIONED AND STATED, HAD BEEN FILED WITHIN THE TIME U/S 139(1). 3.10 THE DECISION OF THE JURISDICTIONAL HIGH COURT IN TH E CASE OF CIT V JAGRITI AGGARWAL 339 ITR 160 (P&H) DATED 03.10.2011 (COPY PLACED AT PAGES 39 TO 42 OF THE PAPER BOOK) IT WAS SUBMITTED, INFAC T FULLY SUPPORTS CLAIM OF THE ASSESSEE. THE RATIO LAID DOWN THEREIN CLEARLY LAYS DOWN THE PROPOSITION THAT THE PROVISION HAS TO BE LIBERALLY CONSTRU ED. SPECIFIC PROVISION INVOKED IN THE FACTS OF THE SAID CASE WAS CLAIM U/ S 54 WHEREIN THE AMOUNT NOT UTILIZED FOR INVESTMENT UPTO THE DATE OF FU RNISHING OF THE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 7 OF 19 RETURN U/S 139(1) WAS TO BE DEPOSITED WITH A SPECIFIC BAN K. THE JURISDICTIONAL HIGH COURT THEREIN CONSIDERING THE FACTS WHER E THE DEPOSIT IN THE SPECIFIED BANK WAS MADE WITHIN THE TIME PERMISSIBLE U/ S 139(4) WAS PLEASED TO HOLD WE FIND THAT THE DUE DATE FOR FURNISHING THE RETUR N OF INCOME AS PER SECTION 139(1) OF THE ACT IS SUBJECT TO THE EXTENDED PERIOD PROVIDED UNDER SUB-SECTION (4) OF SECTION 139 OF THE ACT. 3.11 RELIANCE WAS PLACED UPON DECISION OF THE DELHI BENCH OF THE ITAT DATED 25.01.2012, COPY PLACED AT PAGES 43-47 IN THE CASE OF HANSA DALAKOTI (2012) 50 SOT 0511. IN THE FACTS OF THAT CASE, IT WAS SUBMITTED, THE AUDIT REPORT HAD BEEN FILED BEFORE THE DUE DATE OF FILING OF THE RETURN AND THE RETURN OF INCOME WAS FILED ON 31.03.2009. THE FACTS WERE STATED TO BE IDENTICAL. THE ITAT IN THE SAID DECISION, IT WAS SUBM ITTED, HELD THAT THE ASSESSEE IN THE PRESENT CASE HAD FILED ALL THE NECES SARY DOCUMENTS WHICH WERE SUPPORTING THE CLAIM OF THE ASSESSEE FOR DED UCTION U/S 80IC BEFORE THE DUE DATE OF FILING OF THE RETURN. THE MERE FACT THAT THE ASSESSEE COULD NOT FILE THE RETURN IN TIME ON A HYPERTEC HNICAL INCORRECT APPRECIATION OF LAW, IT WAS SUBMITTED, HAD BEEN HELD TO BE T HE BASIS FOR DENYING RELIEF DESPITE THE AVAILABILITY OF THE SUPPORTING DOCUMENTS. 3.12 RELIANCE WAS ALSO PLACED UPON ANOTHER DECISION OF T HE ITAT IN THE CASE OF FIBERFILL ENGINEERS 177 TTJ 0556 (DEL) DATED 25.02.201 6, COPY PLACED AT PAGES 48 TO 62 OF THE PAPER BOOK WHEREIN IT W AS SUBMITTED RELYING UPON THE PRECEDENT HAS LAID DOWN BY THE APEX C OURT IN THE CASE OF BAJAJ TEMPO LTD. V CIT 196 ITR 188 (S.C) IT HAD BEEN HELD THAT THE INCENTIVE PROVISION HAS TO BE INTERPRETED IN A MANNER SO AS TO ADVANCE THE OBJECTS OF ECONOMIC ACTIVITIES IN THE COUNTRY AND NOT TO DENY THE CLAIM MERELY ON TECHNICAL GROUNDS. IN THE SAID CASE, IT WA S SUBMITTED, AS WOULD BE EVIDENT FROM PAGE 62 PARA 55 OF THE SAID DEC ISION, IT HAD BEEN HELD THAT WHILE REFERRING TO THE FINDING OF THE ASSESSM ENT ORDER, WE HAVE NOTED VARIOUS DECISIONS RELIED UPON BY THE LD . COUNSEL FOR THE ASSESSEE WHICH HELD THAT SECTION 139(4) IS TO BE ALLO WED AS PROVISO TO SECTION 139(1) IT HAD ALSO BEEN HELD THAT, IT IS TRUE THAT THE HEADING OF SECTION 80AC CLEARLY SHOWS THAT DEDUCTION IS NOT TO BE ALLOWED UNLESS RETURN IS FURNISHED ON OR BEFORE THE DUE DATE SPECI FIED UNDER SUB-SECTION (1) TO SECTION 139. HOWEVER, IT CANNOT BE DENIED THAT SECTION 80IC IS AN INCENTIVE PROVISION AND IN VIEW OF VARIOUS JUDICIAL P RONOUNCEMENTS, PARTICULARLY IN THE CASE OF BAJAJ TEMPO LTD. V ACIT 196 ITR 199 (SC) INCENTIVE PROVISION HAS TO BE INCORPORATED IN A MAN NER SO AS TO ADVANCE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 8 OF 19 THE OBJECTS OF ECONOMIC ACTIVITIES IN THE COUNTRY AN D NOT TO DENY THE CLAIM MERELY ON TECHNICAL GROUNDS. ACCORDINGLY, RELIANCE WAS ALSO PLACED UPON THE PRINCIPLE LAID DOWN BY THE APEX COURT IN THE CASE OF B AJAJ AUTO LTD. CITED SUPRA FOR THE PROPOSITION THAT THE INCENTIVE PROVISI ON IS TO BE INTERPRETED LIBERALLY AND THE RESTRICTIONS THEREON HAVE T O BE SO CONSTRUED SO AS TO ADVANCE THE OBJECTIVE OF THE SECTION AND NOT TO FRUSTRATE IT. RELIANCE WAS ALSO PLACED UPON DECISION OF THE DELHI HIGH COURT. 3.11 RELIANCE WAS ALSO PLACED UPON DECISION OF THE DELHI HIGH COURT IN THE CASE OF PODDAR PIGMENTS 222 CTR 309. IN THE FACTS O F SAID CASE, IT WAS SUBMITTED, CLAIM U/S 80IB HAD NOT BEEN MADE IN THE O RIGINAL RETURN AND THE TIME PERIOD FOR FILING OF THE REVISED RETURN HAD ALSO LAPSED. THE ASSESSEE PREFERRED AN APPLICATION U/S 264 FOR CONDONING T HE DELAY. THE COURT HELD THAT DELAY OCCURRED DUE TO BONAFIDE REASONS AND THERE I S NO MALAFIDE INTENT OF THE ASSESSEE IN DELAYING IN FILING O F THE REVISED RETURN. 3.12 RELIANCE WAS ALSO PLACED UPON DECISION DATED 31.05.2011 O F THE HYDERABAD BENCH OF THE ITAT IN THE CASE OF S.VENKATIAH. SAID DECISION, IT WAS SUBMITTED, HAS BEEN CONFIRMED BY THE HON'BLE HIGH C OURT OF ANDHRA PRADESH VIDE ORDER DATED 26.06.2013. ATTENTION WAS ALSO INVITED TO THE ORDER DATED 30.07.2010 OF THE DELHI BENCH OF THE ITAT IN THE CASE OF DHEER GLOBAL INDUSTRIAL PVT. LTD. 133 TTJ 0580, COPY PLAC ED AT PAGES 69 TO 74 WHEREIN CONSIDERING THE CLAIM OF DEDUCTION U/S 10 B, THE CLAIM HAD BEEN ALLOWED BY THE ITAT HOLDING THAT DELAY IN LATE FILING THE RETURN IS REASONABLE. 3.13 RELIANCE WAS ALSO PLACED UPON THE DECISION OF THE CHAN DIGARH BENCH OF THE ITAT IN THE CASE OF RAJWINDER KAUR MAHAL DA TED 28.06.2016 IN ITA 771/CHD/2015 ( COPY PLACED AT PAGES 75 TO 78). I T WAS SUBMITTED THAT THE ISSUE FOR CONSIDERATION WAS CLAIM OF DEDUCTION U/ S 54 WHEREIN THE AMOUNT WAS NOT UTILIZED BY WAY OF DEPOSIT IN SPECIFIED B ANKS BY THE DUE DATE OF FILING THE RETURN U/S 139(1). THE ITAT IN THE FAC TS OF THE SAID CASE, IT WAS SUBMITTED, CONSIDERING THE JUDGEMENT OF THE A PEX COURT IN THE CASE OF PRAKASH NATH KHANNA WHICH HAD BEEN RELIED U PON BY THE CIT(A) AND CONSIDERING THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF JAGRITI AGGARWAL WHICH HAS BEEN RELIED IN THE PRESENT PROCEEDINGS ALSO AND ALSO RELYING UPON THE DECIS ION TAKEN IN THE CASE OF MOHAN SINGH HELD THAT DATE OF FILING OF THE RETURN FOR THE PURPOSE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 9 OF 19 OF SECTION 54 IS SECTION 139(4) AND NOT SECTION 139(1). ATTEN TION WAS INVITED TO PAGE 77 PARA 7 ONWARDS. 3.14 THE LAST DECISION RELIED UPON, IT WAS SUBMITTED, IS THE DECISION OF THE ITAT IN THE CASE OF HEERA MOTI AGRO INDUSTRIES DATE D 23.02.2017 ITA NO. 740&741/CHD/2013 & ORS (COPY PLACED AT PAGES 108 TO 126 OF THE PAPER BOOK). SPECIFIC ATTENTION WAS INVITED TO PARA 12 OF THE SAID DECISION WHEREIN AFTER CONSIDERING THE VARIOUS DECISIONS APP LIED, IT HAD HELD THAT FILING OF RETURN OF INCOME ON OR BEFORE DUE DATE P RESCRIBED U/S 139(1) IS DIRECTORY AND NOT MANDATORY. THE SAID LEGAL PO SITION, IT WAS SUBMITTED, FULLY SUPPORTS THE CASE OF THE ASSESSEE. FOR READY REFERENCE, THE SAME IS REPRODUCED HEREUNDER : 12. CONSIDERING THE ABOVE DISCUSSION IN THE LIGHT O F VARIOUS ORDERS OF THE TRIBUNAL REFERRED TO ABOVE, IT IS PRO VED FROM THE FACTS OF THE CASE THAT THERE WAS A VALID REASON FOR DELAY IN FILING OF RETURN OF INCOME AS THE PHOTO COPIES OF THE SEIZ ED DOCUMENTS WERE NOT MADE AVAILABLE TO THE ASSESSEE AND ASSESSE E COULD NOT FILE RETURN OF INCOME WITHOUT THE SAME. THE PROVIS IONS OF SECTION 80AC OF THE ACT ARE NOT MANDATORY AND THAT THE CLAI M OF THE ASSESSEE CANNOT BE DENIED ON TECHNICALITIES WHEN AS SESSEE IS LEGALLY ENTITLED FOR DEDUCTION UNDER SECTION 80IC O F THE ACT. SINCE DELAY IN FILING THE RETURN OF INCOME IS NOT ATTRIBU TABLE TO THE ASSESSEE BECAUSE REVENUE DEPARTMENT DID NOT PROVIDE PHOTO COPIES OF THE SEIZED DOCUMENTS TO THE ASSESSEE ON TIME, TH EREFORE, CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80IC CA NNOT BE DENIED BY THE AUTHORITIES BELOW ON THE REASON THAT RETURN COULD NOT BE FILED UNDER SECTION 139(1) OF THE ACT BY THE DUE DA TE I.E. 30.09.2008. IN VIEW OF THE ABOVE DISCUSSION, WE SE T ASIDE THE ORDERS OF AUTHORITIES BELOW AND DIRECT THE AUTHORIT IES BELOW TO GRANT DEDUCTION UNDER SECTION 80IC OF THE ACT TO TH E ASSESSEE. GROUND OF APPEAL NO. 3 OF APPEAL OF THE ASSESSEE IS ALLOWED. 3.15 ACCORDINGLY, IT WAS HIS SUBMISSION THAT CLAIM OF THE ASS ESSEE WAS FULLY ALLOWABLE. 4. THE LD. CIT-DR SUBMITTED THAT ARGUMENT OF THE LD. AR T HAT THE STATUTORY REQUIREMENTS WERE FULFILLED WITHIN TIME AND ONLY FOR FILING OF THE RETURN, THERE WAS A DELAY, IT WAS SUBMITTED, WAS NOT COMIN G OUT FROM THE RECORD. THE LD. AR INTERVENED THAT HE HAD BEEN REFERRING TO FACTS AND FINDINGS RECORDED IN THE ASSESSMENT ORDER ITSELF. THE LD. C IT-DR RELYING UPON THE DECISIONS CONSIDERED BY THE CIT(A) AND SPECIFICALLY DECISION OF THE ITAT IN THE CASE OF LAKSHMI ENERGY & FOODS LTD. SU BMITTED THAT THE CLAIM OF THE ASSESSEE WAS NOT ALLOWABLE. COPY OF THE SAID DECISION WAS FILED. REFERRING TO THE ORDER OF THE ITAT RELIED UPON BY TH E LD. AR IN THE CASE OF HEERA MOTI GROUP, IT WAS HIS SUBMISSION THAT IT WAS EVIDENT FROM PERUSAL OF THE SAID ORDER ITSELF THAT THE REASONS WHICH PR EVENTED THE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 10 OF 19 ASSESSEE FROM FILING THE RETURN IN TIME CLEARLY WERE ATTRIBU TABLE TO THE AO, HOWEVER, IN THE FACTS OF THE PRESENT CASE IT WAS SUBM ITTED THAT DELAY WAS NOT ATTRIBUTABLE TO THE AO. IF THE RETURN COULD NOT BE PREPARED AND FILED WITHIN TIME IN THE FACTS OF THE PRESENT CASE, THEN IT WA S SOLELY BECAUSE OF THE ASSESSEE ITSELF, THE DEPARTMENT HAD NO R OLE TO PLAY. THE AFFIDAVIT OF THE ASSESSEE, IT WAS SUBMITTED, IS A SELF SERVING AFFIDAVIT. THERE IS NO ROLE OF THE AO AND THUS, DECISIONS RELIED UPON DID NOT HELP THE ASSESSEE IN ANY CASE. IT WAS HIS SUBMISSION THAT T HERE IS NO REASONABLE CAUSE IN THE FACTS OF THE PRESENT CASE AND A CCORDINGLY, IT SHOULD BE REJECTED. 5. THE LD. AR INVITING ATTENTION TO THE FACTS ON RECORD SUB MITTED THAT THE CLAIMS MADE BY THE ASSESSEE ON FACTS AS CONSIDERED BY THE CHANDIGARH BENCH IN THE CASE OF LAKSHMI ENERGY & FOODS LTD. RELIED UPON BY THE CIT(A) AND ALSO BY THE LD. CIT-DR, IT WAS SUBM ITTED IS A DECISION RENDERED ON 26.02.2014 AND APART FROM BEING DISTIN GUISHABLE ON FACTS AS POINTED OUT IN THE COURSE OF THE ARGUMENTS, IT WAS HIS SUBMISSION THAT THE SAID DECISION HAS BEEN CONSIDERED BY THE CHANDIGARH BENCH ITSELF IN THE CASE OF HEERA MOTI AGRO I NDUSTRIES WHICH IS A DECISION MORE LATEST IN POINT OF TIME AS IT IS DATED 23 .02.2017. BEING THE LATEST DECISION IN POINT OF TIME AND ALSO HAVING CONSID ERED THE EARLIER DECISION, IT WAS SUBMITTED, IT HAS HIGHER PRECEDENCE VALUE. INVITING ATTENTION TO PAGE 114 PARA 9, IT WAS SUBMITTED, THAT THE LD. CIT-DR WAS CORRECT IN STATING THAT HE HAS ARGUED THE SAID CASE BE FORE THE ITAT AND RELIANCE HAD BEEN PLACED BY HIM ON THE AFORESAID DECISION I .E. LAKSHMI ENERGY & FOODS LTD. PVT. LTD. AS WOULD BE EVIDENT FROM P AGE 114 PARA 9(II). HOWEVER, ON ACCOUNT OF THE DISTINCTIONS ON FACTS AND TH E POSITION OF LAW, THE RELIANCE PLACED IN THE PECULIAR FACTS IS MISPLACED. IT WAS HIS SUBMISSION THAT IF THE CHARTERED ACCOUNTANT WHO HAD TH E DIGITAL SIGNATURES, FAILED TO CLICK THE RELEVANT DOCUMENT FOR FILING OF THE RETURN AND ADMITTEDLY THE COUNSEL DID NOT UPLOAD THE RETURN, W HICH FACT WAS ALSO NOT BROUGHT TO THE NOTICE OF THE ASSESSEE, THE DELA Y IN THE FACTS, AS SUBMITTED WAS ON ACCOUNT OF PECULIAR FACTS AND THERE CA N BE NO PROPOSITION OF LAW TO HOLD THAT DELAY ON ACCOUNT OF REASON ABLE FACTS CAN BE ACCEPTED IF ATTRIBUTABLE TO THE DEPARTMENT AND IF REAS ONABLE CAUSE IS DEMONSTRATED BY AN ASSESSEE, THE DELAY CANNOT BE COND ONED. THE ISSUE PRINCIPALLY, IT WAS SUBMITTED, HAS TO BE DECIDED ON THE REA SONABLENESS OF THE CLAIM. ITA 501/CHD/2017 A.Y. 2013-14 PAGE 11 OF 19 6. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE E- FILED ITS RETURN ON 31.03.2014 SHOWING A TOTAL INCOME OF RS. 2 .71 CRORES AFTER CLAIMING DEDUCTION UNDER CHAPTER VI-A (U/S 80IC) OF R S. 1,16,26,310/-. THE SAID CLAIM WAS SUPPORTED BY AUDIT REPOR T IN FORM NO. 10CCB UNDER RULE 18BBB OF THE IT RULES, 1961. THE AO CONSIDERING THE FACT THAT THE RETURN HAD NOT BEEN FILED WITHIN THE TIME SP ECIFIED U/S 139(1) AS ADMITTEDLY IT HAD BEEN FILED WITHIN THE EXTENDED P ERIOD AS SPECIFIED U/S 139(4). ACCORDINGLY, CONSIDERING THE STATUTORY REQUIREMENT AS PER PROVISIONS OF SECTION 80AC REQUIRED THE ASSESSEE TO EXPLAIN THE SAME. THE ASSESSEE AS PER THE SUBMISSIONS EXTRACTED IN THE ASSESSMENT ORDER GAVE THE FOLLOWING EXPLANATION : INCOME TAX RETURN ALONGWITH STATEMENT OF INCOME WA S FILED ON 31.03.2014 AUDIT REPORT THROUGH WHICH WE CAN AVAIL THE 80IC DEDUCTIO N IS SUBMITTED ON 28.10.2013. BOOK PROFIT REPORT IN FORM 29B IS SUBMI TTED ON 29.09.2013 AND TAX AUDIT REPORT IN FORM 3CA/3CD IS SUBMITTED ON 29.09. 2013. MOREOVER, END OF THE YEAR I.E. MARCH 31 OF THE RELEVANT A.Y. IS ALSO DUE DATE U/S 139 WITHOUT PENALTY AND ITR SUBMITTED ON 31.03.2014 6.1 THE RECORD SHOWS THAT THE EXPLANATION WAS REJECTED BY THE AO HOLDING AS UNDER : THE EXPLANATION OF THE ASSESSEE IS PERUSED AND IT S HOWS THAT THE ASSESSEE ITSELF ADMITTED THAT THE RETURN OF INCOME FOR THE YEAR UND ER CONSIDERATION WAS FILED BEYOND DUE DATE OF FILING OF RETURN. MOREOVER, . AUDIT REP ORT IN FORM NO. 10CCB WAS ALSO FILED ON 28.10.2013 WHICH IS ALSO BELATED. THE ASSE SSEE CLAIMED THAT TAX AUDIT REPORT IN FORM 3CA & 3CD WAS FILED ON 29.09.2013 I.E. WITH IN TIME. THE CONTENTION OF THE ASSESSEE IS NOT ACCEPTABLE BECAUSE THE DATE OF FILI NG OF AUDIT REPORT IS NO CONCERNED WITH THE DATE OF FILING OF RETURN OF INCOME. THE PR OVISION OF SECTION 80AC CLEARLY INDICATES THAT THE RETURN OF INCOME OF THE ASSESSEE WHO CLAIMS DEDUCTION U/S 80IC MUST BE FURNISHED ON OR BEFORE DUE DATE IN THE RELE VANT ASSESSMENT YEAR. THE ASSESSEE COULD NOT JUSTIFY ITS CLAIM, HENCE, DEDUCTION U/S 8 0IC OF RS.1,16,26,310/- IS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASS ESSEE'S COMPANY. 6.2. THE ASSESSEE CARRIED THE ISSUE IN APPEAL BEFORE THE C IT(A) WHO ALSO REJECTED THE CLAIM RELYING UPON THE DECISION OF THE APEX COURT IN THE CASE OF PRAKASH NATH KHANNA. THE APPLICABILITY OF THE SAID DECIS ION TO THE FACTS OF THE PRESENT CASE IS DISPUTED BY THE LD. AR ON TH E GROUNDS THAT AS PER THE SETTLED LEGAL POSITION, THE RULE OF STRICT INTERPRET ATION IS TO BE APPLIED TO THE CHARGING AND PENAL PROVISIONS. IT HAS BEE N ARGUED THAT SINCE SECTION 80AC AND SECTION 80IC ARE PROCEDURAL PROV ISIONS, THE RULE OF STRICT AND LITERAL INTERPRETATION ARE NOT TO BE APPLIED. ATTENTION HAS BEEN INVITED TO PARA 20 OF THE AFORESAID DECISION OF THE AP EX COURT. THE LD. AR HAS ALSO SOUGHT TO DISTINGUISH THE DECISIONS RELIED UP ON BY THE CIT(A). SINCE THESE ARGUMENTS HAVE BEEN ELABORATED IN THE EARLIER PART OF ITA 501/CHD/2017 A.Y. 2013-14 PAGE 12 OF 19 THIS ORDER, IT IS DEEMED APPROPRIATE ONLY TO REFER TO THE REBUTTAL THEREOF BY THE LD. CIT-DR. THE LD. CIT-DR HAS PLACED HEAVY RELIAN CE UPON THE ORDER OF THE CHANDIGARH BENCH OF THE ITAT IN THE CASE OF LAKSHMI ENERG Y & FOODS LTD. THE LD. AR APART FROM RELYING UPON VARIOUS DECISIONS W HICH HAVE ALSO BEEN ELABORATED IN THE EARLIER PART OF THIS ORDE R, HAS SOUGHT TO INVITE ATTENTION TO THE ORDER DATED 23.02.2017 IN THE CAS E OF HEERA MOTI AGRO INDUSTRIES (COPY PLACED AT PAGES 108 TO 126). BEFORE WE REFER TO THOSE DECISIONS, WE TAKE NOTE OF THE FACT THAT ADMITTEDLY THE TAX AUDIT REPORT AND THE BALANCE SHEET ALONGWITH ANNEXURES WERE FILED WITHIN THE DUE DATE I.E. 29.09.2013 AND THE REPORT U/S 80IC ON FORM 10CCB WAS FILED ON 28.09.2013. THESE FACTS ARE COMING FROM THE RECORD ITSELF AS EXTRACTED IN THE EARLIER PART OF THE ORDER FROM THE ASS ESSMENT ORDER. THE RETURN ADMITTEDLY WAS UPLOADED ONLY ON 31.03.2014 AND A DMITTEDLY WAS LATE IN TERMS OF SECTION 139(1), THOUGH WITHIN THE EXTENDED TIME AS SET OUT IN SECTION 139(4) AS FAR AS THE LEVY OF PENALTY ETC. W AS CONCERNED. SECTION 80AC OF THE INCOME TAX ACT SPECIFICALLY LAYS DOWN THAT DEDUCTION IS ADMISSIBLE OR IN-FACT NO DEDUCTION IS PERMISSIBLE UNLESS TH E RETURN IS FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED IN SUB-SECTIO N (1) OF SECTION 139. FOR READY REFERENCE, SAID PROVISION OF LAW IS HEREBY REPRODUCED : '80AC -WHERE IN COMPUTING THE TOTAL INCOME OF AN AS SESSEE OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 2006 OR ANY SUBSEQUENT ASSESSMENT YEAR, ANY DEDUCTION IS ADMISS IBLE UNDER SECTION 80-IA OR SECTION 80-IAB OR SECTION 80-IB OR SECTION 80-IC [O R SECTION 80-ID OR SECTION 80-IE], NO SUCH DEDUCTION SHALL BE ALLOWED TO HIM UNLESS HE FURNISHES A RETURN OF HIS INCOME FOR SUCH ASSESSMENT YEAR ON OR BEFORE THE DU E DATE SPECIFIED UNDER SUB- SECTION (1) OF SECTION 139.' 6.3. WE ARE CALLED UPON TO DECIDE IN THE FACTS OF THE PRES ENT CASE WHETHER THE BENEFIT OF DEDUCTION U/S 80IC IN THE FACTS OF THE PRESEN T CASE WHEREIN THE ASSESSEE ADMITTEDLY DID NOT FILE ITS RETURN WIT HIN THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139 OF THE ACT AND FILED IT ONLY IN THE EXTENDED PERIOD AND THOUGH WITHIN TIME BUT IN THE EXTENDED PERIOD AS SET OUT IN SUB SECTION (4) OF SECTION 139 OF THE ACT. THE CONSISTENT CLAIM OF THE ASSESSEE WHICH HAS NOT BEEN DISPU TED BY THE TAX AUTHORITIES OR BY THE LD. CIT-DR IS THAT THE RETURN OF TH E ASSESSEE WAS FILED WELL WITHIN THE EXTENDED DUE DATE U/S 139(4) I.E. ON 29.09.2013. 6.4 WE HAVE CONSIDERED THE RELEVANT FINDINGS IN THE ASSESS MENT ORDER AND THE IMPUGNED ORDER AND WE FIND THAT THE RELEVANT DO CUMENTS IN SUPPORT OF ITS CLAIM OF DEDUCTION WERE AVAILABLE BEFORE THE T AX AUTHORITIES WELL WITHIN TIME NAMELY BOOK AUDIT REPORT IN FORM NO. 29B A ND TAX ITA 501/CHD/2017 A.Y. 2013-14 PAGE 13 OF 19 AUDIT REPORT IN FORM NO. 3CA/3D ON 29.09.2013, AUDIT REPOR T U/S 80IC ALONG WITH BALANCE SHEET ETC. CONSEQUENTLY, THE OCCASION TO CONSIDER THE POSSIBILITY AND THE OPPORTUNITY TO INTERPOLATE AND FUDGE UP THE CLAIM WAS ADMITTEDLY NOT AVAILABLE TO THE ASSESSEE. WE NOTE THAT THE RESPECTIVE CORRESPONDING FIGURES QUA THE CLAIM AS PER THE REPORTS A ND BALANCE SHEETS REMAIN THE SAME. THE LEGAL POSITION REFERRING TO VA RIOUS CASE LAWS HAVE BEEN ADDRESSED BY THE AUTHORITIES WHICH WE HAVE E LABORATELY DISCUSSED IN THE EARLIER PART OF THIS ORDER. ON CONSIDERAT ION THEREOF, WE FIND THAT THE CLAIM OF THE ASSESSEE THAT IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE PRESENT CASE WHERE THE FILING OF THE RETURN WAS DELAYED FOR REASONS NOT ATTRIBUTABLE TO THE ASSESSEE AN D ALL OTHER SUPPORTING EVIDENCES IN THE FORM OF AUDIT REPORT U/S 80I C, BALANCE SHEET PREPARED FOR THE PURPOSE OF INCOME TAX AND THE REQUIREM ENTS OF VARIOUS REGULATORY AUTHORITIES WERE PREPARED AND FILED WELL WITHIN T IME WHEREAS WE HAVE NOTED THE FIGURES AND AMOUNTS IN THESE TWO FULL Y TALLY IN THE LIGHT OF THESE FACTS WHEN CONSIDERED IN CONTEXT OF THE PR INCIPLES ENUNCIATED BY THE COURTS AND THE TRIBUNAL, WE CONCUR WIT H THE ARGUMENTS THAT LITERAL INTERPRETATION IS TO BE GIVEN TO T HE PROCEDURAL REQUIREMENTS IN AS MUCH AS THESE PROVISIONS BEING MACHINE RY PROVISIONS AND THUS BEING DIRECTORY, THEY DO NOT STAND AS A BAR IN THE FACTS OF A CASE WHEREIN IT CAN BE DEMONSTRATED THAT THERE WAS A JUSTIFIA BLE AND REASONABLE CAUSE FOR DELAY IN FILING OF THE RETURN. THE RETURN WHICH IS WELL WITHIN THE EXTENDED PERIOD AS CONSIDERED UNDER SUB SECT ION 4 OF SECTION 139 OF THE ACT, IT WAS SUBMITTED, STANDS ON A HIGHER FOOTIN G, THEN THE RETURN WHICH IS FILED EVEN BEYOND THIS PERIOD. THE ARGUMENT S OF THE REVENUE THAT RETURN FILED LATE CAN ONLY BE CONSIDERED IF T HE DELAY IS ATTRIBUTABLE TO THE REVENUE, CANNOT BE CONCURRED WITH. I N THE FACE OF DECISIONS WHICH HOLD THAT THE SAID PROVISION IS A MACHINERY PROVISION, THEN THIS INTERPRETATION CANNOT APPLY ONLY TO CASES WH ERE DELAY IS ATTRIBUTABLE ONLY TO THE REVENUE. THE SAID INTERPRETATIO N WOULD BE UNIVERSALLY AVAILABLE AS PER FACTS TO BOTH THE SIDES. TO H OLD THAT THE CAUSE FOR DELAY CAN BE GONE INTO, ONLY IF DELAY IS ATTRIBUTA BLE TO THE REVENUE IN THE FACTS OF THE CASE WOULD NECESSITATE A JUD ICIAL FORUM TO FIRST REQUIRE THE DEPARTMENT TO DEMONSTRATE HOW IT CAN CLAIM ITSELF TO BE ON HIGHER FOOTING QUA THE TAX PAYER BECAUSE REASONS FOR DELAY CAN BE GONE INTO AND CONDONED FOR ADEQUATE REASONS DEMONSTRA TED BY THE REVENUE THEN EVEN WHERE DELAY OCCURS FOR REASONS NOT ATTRIBUTABLE ITA 501/CHD/2017 A.Y. 2013-14 PAGE 14 OF 19 TO THE REVENUE ALSO. IN THE ABSENCE OF ANY OTHER ARG UMENT, WE DO NOT SEE HOW IN THE FACTS AS CONSIDERED BY DIFFERENT COURTS IN THE DECISIONS RELIED UPON BY THE LD. AR, WHY THEY SHOULD NOT BE APPLIED. ONCE IT HAS BEEN HELD THAT SECTION 80AC IS A MACHINERY PROVISION, TH EN THE ISSUE IS TO BE CONSIDERED IN THE LIGHT OF THE FACTS AVAILABLE. THE LEG AL POSITION THAT THE RELEVANT PROVISION IS A MACHINERY PROVISION, APPLYING TH E PRINCIPLES THAT BEING DIRECTORY IN NATURE ENABLES THE AUTHORITIES TO CONSIDER THE REASONS, CONSISTENTLY ON RECORD FOR LATE FILING OF THE RETUR N. A PERUSAL OF THE RECORD SHOWS THAT THE AFFIDAVIT OF SHRI JAGBIR SINGH S/ O SHRI OM PAL, MANAGING DIRECTOR OF THE ASSESSEE COMPANY IS ON RECORD. PERUSAL OF THE SAME SHOWS THAT IT HAS BEEN EXPLAINED THAT ON ACCOUNT OF COLLUSION OF THE TAX CONSULTANT I.E. CHARTERED ACCOUNTANT SHRI A.S.MALHO TRA IN REGARD TO ALLOTMENT OF SHARES IN ANOTHER COMPANY I.E. SAITEC MEDIC AL PVT. LTD. WHEREIN THE ASSESSEE COMPANY HAD A MAJOR SHARE HOLDING RESULTING IN FILING OF SUITE BEFORE THE COMPANY LAW BOARD ETC. AND IN CON NIVANCE OF THE TAX CONSULTANT WITH MR. BHALOTIA AND HIS SON WHO WERE HAVING MINOR SHAREHOLDING IN M/S SAITECH, THE ROUTINE EXERCISE NOR MALLY DONE BY THE TAX CONSULTANT WITHOUT ANY FOLLOW UP OR SUPERVISIO N AS DIGITAL SIGNATURES HAD BEEN ENTRUSTED TO THE TAX CONSULTANT FO R UPLOADING OF DOCUMENTS ETC. IN THE INCOME TAX PORTAL, THE MISCHIEF WAS OCCURRED. FOR READY REFERENCE, THE CONTENTS OF THE AFFIDAVIT ON RECORD A RE REPRODUCED HEREUNDER : AFFIDAVIT I, JAGBIR SINGH S/O SH. OM PAL, MANAGING DIRECTOR O F SYMBIOSIS PHARMACEUTICALS (P) LTD., HAVING ITS REGD. OFFICE AT SCO 4, GROUND FLOOR, 14, RAGHUNATH PURI, YAMUNA NAGAR, DO HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: 1. THAT I AM MANAGING DIRECTOR OF THE COMPANY SYMBIOSIS PHARMACEUTICALS (P) LTD., YAMUNA NAGAR. 2. THAT, THE BALANCE SHEET ALONG WITH ANNEXURES OF SYMBIOSIS PHARAMACEUTICALS P LTD FOR THE YEAR ENDING 31.3.201 3 WAS SIGNED BY THE AUTHORIZED DIRECTORS AND AUDITORS ON 09.08.2013 AND THE SAID B ALANCE SHEET WAS ADOPTED BY THE BOARD OF THE COMPANY. ON THIS VERY DATE I.E. 09.08. 2013 WE HANDED OVER THE DIGITAL SIGNATURES OF THE DEPONENT TO OUR AUDITOR AND TAX.C ONSULTANT CA A.S. MALHOTRA FOR FILING INCOME TAX RETURN AND OTHER REPORTS ON THE INCOME T AX PORTAL AS RETURNS AND ALL AUDIT REPORTS HAD TO BE COMPULSORILY E-FILED. WE CAME TO KNOW ABOUT THE FACT THAT TAX AUDIT REPORT AND BALANCE SHEET WITH ANNEXURES WERE FILED ON 29-9-2013 AND REPORT U/S 80-IC ON FORM 10CCB WAS FILED ON 28.10.2013 AND THE RETURN O F INCOME WAS UPLOADED ONLY ON 31.03.2014. 3. THAT FILING OF INCOME TAX RETURN, AUDIT REPORT ETC ON INCOME TAX PORTAL AS A MATTER OF ROUTINE IS HANDLED BY TAX CONSULTANT AND IN OUR CAS E CA. A.S.MALHOTRA AND AS A NORMAL PRACTICE DIGITAL SIGNATURES WERE ALSO HANDED OVER TO HIM ALONGWITH BOARD RESOLUTION AUTHORIZING HIM TO USE AND AFFIX OUR DIG ITAL SIGNATURES ON THE DOCUMENTS TO BE SUBMITTED TO INCOME TAX DEPARTMENT. ITA 501/CHD/2017 A.Y. 2013-14 PAGE 15 OF 19 4. THAT OUR AFOREMENTIONED COMPANY IS HAVING 77.30% SHARES IN ANOTHER COMPANY 'SAITECH MEDICARE PRIVATE LIMITED'. CA. A.S. MALHOT RA WAS AUDITOR OF THAT COMPANY ALSO. BESIDES SYMBIOSIS PHARMACEUTICALS (P) LTD. AN D A FEW OTHER SHAREHOLDERS, THIS COMPANY IS ALSO HAVING TWO SHAREHOLDERS NAMELY SH. RAJAT BHALOTIA AND HIS FATHER SH. P.D. BHALOTIA WITH 12.66% AND 3.82% SHARES RESPECTI VELY. THESE SHAREHOLDERS HAVE FILED A SUIT WITH COMPANY LAW BOARD, DELHI AGAINST THE MA JOR SHAREHOLDER I.E. SYMBIOSIS PHARMACEUTICALS (P) LTD. AND OTHER SHAREHOLDERS INC LUDING THE DEPONENT. WE SUSPECTED COLLUSION OF OUR AUDITORS WITH THESE T WO DISSENTING SHAREHOLDERS AS OUR AUDITOR WAS ALSO AUDITOR AND TAX CONSULTANT OF WOND ER PRODUCTS, NAHAN ROAD, MOGINAND, KAL AMB, DISTT. NAHAN; A FIRM OF THESE TW O PERSONS/ THEIR FAMILY MEMBERS. THE SUSPICION IS ON ACCOUNT OF THE FACT THAT RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED LATE WHEN BALANCE SHEET AND AUDIT REPORT WAS FILED IN TIME AND ALSO HE HAS GUIDED THE OTHER DIRECTORS FOR FILI NG A SUIT AGAINST THE COMPANY. 5. THAT WHEN WE RECEIVED THE ORDER OF THE DC!T IN OUR CASE FOR THE A.Y. 2013-14 ON 16.01.2016; WE CONSULTED ANOTHER CA WHO TOLD US THE INTRICACIES OF THE ORDER AND THEREAFTER WE CONFRONTED THE. SAME WITH OUR TAX CON SULTANT CA. A.S. MALHOTRA; WHO DID NOT GIVE ANY SATISFACTORY REPLY FOR DELAY IN FILING OF INCOME TAX RETURN AND WE ASKED FOR HIS RESIGNATION AND CHANGED OUR CONSULTANTS AS WELL AS AUDITORS OF BOTH THE COMPANIES. 'HIS REPLIES CONFIRMED OUR SUSPICIONS THAT HE IS IN HAND WITH GLOVE WITH MR. BHALOTIA AND THE MISCHIEF I.E. NON FILING OF ITR IN TIME WAS CARRIED ON US AT THE BEHEST OF MR. BHALOTIA. 6. THAT WE WOULD ALSO LIKE TO ADD THAT BHALOTIAS HAD FILED THE CASE ONLY IN JULY 2015 AFTER WE ISSUED SEVENTY SIX LAKH SHARES OF 'SAITECH MEDICARE PRIVATE LIMITED' TO SYMBIOSIS PHARMACEUTICALS (P) LTD. HE WAS SHOWING H IS GRIEVANCES AGAINST THE ALLOTMENT SINCE LAST MORE THAN ONE YEAR BEFORE THE ALLOTMENT ON SOME TECHNICAL GROUNDS WHICH ONLY A PROFESSIONAL LIKE A CHARTERED ACCOUNTANT IS IN POSITION TO GUIDE. DUE TO THE CASE FILED WITH COMPANY LAW BOARD; WHICH CAS E HAS SINCE BEEN TRANSFERRED TO NATIONAL COMPANY LAW TRIBUNAL, CHAND IGARH BENCH IN FEBRUARY, 2017; WE HAD NOT BEEN ABLE TO HOLD AGM OF 'SAITECH MEDICARE PRIVATE LIMITED' SINCE 2015. WHENEVER WE TRIED TO HOLD AGM; MR. BHALOTIA INVOKED CLB WHICH RESTRAINED US FROM HOLDING AGM AND ULTIMATELY WE HAD TO GIVE AN UNDERT AKING TO THE CLB OF NOT HOLDING ANY AGM WITHOUT ITS PERMISSION. 7. THAT WE ARE NOT CONVERSANT WITH THE INCOME TAX ACT, 1961 HENCE WE HAD TO RELY ON OUR CONSULTANTS. AS IS A NORMAL PRACTICE; INCOME TA X CONSULTANT PREPARES AND FILE ITRS ON BEHALF OF THE ASSESSEE. WE WERE ALSO FOLLOW ING THE INSTRUCTIONS OF OUR TAX CONSULTANT AND LATE FILING OF ITR WAS NOT DUE TO AN Y FAULT OF ANY OF THE OFFICER OF THE COMPANY BUT DUE TO OUR TAX CONSULTANT. 6.5 ACCORDINGLY, IN THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE, A S WE HAVE DISCUSSED AT LENGTH AND SEEN FROM THE RECORD, W E ARE OF THE VIEW THAT THE DELAY IN FILING OF THE RETURN IN THE FACTS OF THE P RESENT CASE WAS FOR REASONS BEYOND THE CONTROL OF THE ASSESSEE AND IN FA CT, THERE WAS REASONABLE CAUSE IN THE LATE FILING OF THE RETURN WITHIN TH E EXTENDED PERIOD AS STATUTORILY AVAILABLE UNDER SUB-SECTION (4) OF SEC TION 139 OF THE ACT. THE DECISION RENDERED IN THE CASE OF P.BHAVANI, WE FIND , ON FACTS IS NOT APPLICABLE AND IS ENTIRELY DISTINGUISHABLE SINCE WE CONC UR WITH THE ARGUMENTS ADVANCED BY THE LD. AR THEREON SAME ARE NOT BEING REPEATED HERE. SIMILARLY, WE FIND THAT THE DECISION IN THE CASE OF M/ S LAKSHMI ENERGY & FOODS LTD. ALSO HAS NO ROLE TO PLACE AS IN THE FACTS OF THAT CASE, NOT ONLY THE RETURN WAS FILED BEYOND THE EXTENDED PERIO D OF TIME STATUTORILY AVAILABLE UNDER SUB-SECTION (4) OF SECTION 139 B UT EVEN OTHERWISE, THE SAID RETURN WAS NOT SUPPORTED BY TAX AU DIT REPORT AND ITA 501/CHD/2017 A.Y. 2013-14 PAGE 16 OF 19 AUDIT REPORT U/S 80IC PRIOR TO THE FILING OF THE RETURN AN D INFACT THEY WERE FILED DURING THE ASSESSMENT PROCEEDINGS. 6.6 IN THE FACTS OF THE PRESENT CASE, AS IS EVIDENT FROM THE ASSESSMENT ORDER ITSELF, THE SUPPORTING DOCUMENTS FOR THE CLAIM U/S 8 0IC WAS FILED WELL WITHIN THE EXTENDED TIME PRESCRIBED U/S 139(4). THE SA ID FACT IS EVIDENT FROM A READING OF THE ASSESSMENT ORDER ITSELF. WE ALSO NOTE THAT THE PRINCIPLE OF LAW AS APPLICABLE TO CLAIM OF EXEMPTION U/S 5 4 AS CONSIDERED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V JAGRITI AGGARWAL IS FULLY APPLICABLE TO THE CASE AT HAND ALS O AND INFACT THE DECISION OF THE DELHI BENCH OF THE ITAT IN THE CASE OF HANSA DALAKOTI AN D FIBERFILL ENGINEERS (CITED SUPRA) RELYING UPON THE DECISION OF T HE APEX COURT IN THE CASE OF BAJAJ TEMPO LTD. (CITED SUPRA) AN D DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF PODDAR PIGMENTS LT D. ( CITED SUPRA) FULLY SUPPORTS THE CLAIM OF THE ASSESSEE. MENTION MA Y ALSO BE MADE OF THE ORDER OF THE HYDERABAD BENCH OF THE TRIBUN AL IN THE CASE OF S.VENKTIAH, (CITED SUPRA) AND ANOTHER ORDER OF THE DELHI BEN CH IN THE CASE OF DHEER GLOBAL INDUSTRIES P.LTD. (CITED SUPRA) ALSO SUPPORT THE VIEW TAKEN. SUPPORT MAY ALSO BE DRAWN BY MAKING REFERENCE T O THE ORDER OF THE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF RAJW INDER KAUR MAHAL (STATED SUPRA) WHEREIN CONSIDERING THE CLAIM OF DEDUCT ION U/S 54 AFTER CONSIDERING THE DECISION OF THE APEX COURT IN THE CA SE OF PRAKASH NATH KHANNA AND ALSO CONSIDERING THE DECISION OF THE JUR ISDICTIONAL HIGH COURT IN THE CASE OF JAGRITI AGGARWAL, THE CLAIM MADE IN THE EXTENDED PERIOD AVAILABLE UNDER SUB-SECTION (4) OF SECTION 139 WAS ALLO WED. THE ORDER IN THE CASE OF HEERA MOTI AGRO INDUSTRIES (CITED SU PRA) ALSO DESERVES A MENTION. 6.7. ACCORDINGLY, CONSIDERING THE PECULIAR FACTS AND CIRCUM STANCES OF THE CASE AND POSITION OF LAW AS CANVASSED BY THE PARTIE S BEFORE THE BENCH, WE HOLD THAT THE CLAIM OF THE ASSESSEE COULD NOT B E OUSTED ON THE FACT THAT THE RETURN WAS FILED WITHIN THE EXTENDED PERIOD OF SUB SECTION(4) OF SECTION 139. ACCORDINGLY, WE HOLD THAT THE ASSESSEE DE SERVES TO SUCCEED IN PRINCIPLE. THE MATTER IS REMANDED TO THE AO FO R THE PURPOSES OF VERIFICATION. NEEDLESS TO SAY THAT THE ASSESSEE SHALL BE GIVEN A REASONABLE OPPORTUNITY OF BEING HEARD. 7. ADDRESSING GROUND NO. 2 RAISED IN THE PRESENT APPEAL, T HE LD. AR SUBMITTED THAT THE AO CONSIDERING THE FACT THAT ASSESSE E HAD TAKEN ITA 501/CHD/2017 A.Y. 2013-14 PAGE 17 OF 19 INTEREST BEARING LOANS AND WAS ALSO PAYING INTEREST TO TH E BANK WAS REQUIRED THE ASSESSEE TO EXPLAIN WHY PROPORTIONATE INTER EST @ 13% SHOULD NOT BE MADE IN THE HANDS OF THE ASSESSEE. THE E XPLANATION OF THE ASSESSEE THAT THE ADVANCE OF RS. 5,19,000/- TO SHRI SHA TRUGHAN SINHA NOTICED BY THE AO WAS FOR SALES PROMOTION AND OF RS. 1,2 7,210/- TO MR. ADIL LATIF KHAN WAS TOWARDS ADVANCE AS HE WAS THE SALES MANAGER AND WAS GIVEN FOR WORK TO BE ADJUSTED LATER FOR NO STATED REASONS, THE EXPLANATION WAS REJECTED LEADING TO THE ADDITION OF RS. 93 ,237/-. THE ADDITION WAS CONFIRMED IN APPEAL. IN THE SAID BACKGROUND, RELIANCE WAS PLACED UPON THE DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE BRIGHT ENTERPRISES PVT. LTD. VS CIT DATED 24.0 7.2015 IN ITA 224 OF 2013 (COPY PLACED AT PAGES 93 TO 104) FOR THE PROPOSIT ION THAT NO INTEREST U/S 36 IS TO BE DISALLOWED IF ASSESSEE IS HAVING CA PITAL/FREE RESERVE AND INTEREST FREE DEPOSITS MORE THAN THE INTEREST FREE ADV ANCES. 7.1 THE LD. CIT-DR RELIES UPON THE ORDERS OF THE TAX AUTHORITIES. 7.2 WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THOUGH THE ASSESSEE HAD CANVAS SED BEFORE THE AO AS PER THE RELEVANT EXTRACT IN PAGE 8 OF THE SAID ORDER THAT THE LOANS WERE ADVANCED FOR BUSINESS PURPOSE NAMELY TO SHRI SHATRUGHA N SINHA AS A SALE PROMOTION EXERCISE AND TO SHRI ADIL LATIF KHAN WHO WAS A SALES MANAGER AS ADVANCE TO BE ADJUSTED AGAINST WORK, HOWEV ER, IN THE DISCUSSION IN THE ASSESSMENT ORDER OR THE IMPUGNED ORDE R, THERE IS NO FINDING OF FACT GIVEN THEREON. MOREOVER, THE IMPUGNED ORDE R DENIES THE CLAIM ON THE REASONING THAT EVIDENCE OF AVAILABILITY OF INTERES T BEARING FUNDS WAS NOT FILED AND COMMERCIAL EXPEDIENCY WAS ALSO NOT DEMONSTRATED. CONSIDERING THE FACT THAT THE ISSUE IS TO B E DECIDED ON THE BASIS OF FACTS AND EVIDENCES AND NOT ON THE BASIS OF DECIS IONS AS DECISIONS CAN BE APPLIED ONLY TO ADMITTED FACTS AND IN THE FACTS OF THE PRESENT CASE, WE NOTE THAT THERE IS NO FINDING WHETHER SHRI SHATRUGHAN SINHA TO WHOM AN ADVANCE OF RS. 5,90,000/- WAS GIVEN, WAS ENTRUSTED WITH ANY SALES PROMOTION EXERCISE OR NOT AND WHETHER SH RI ADIL LATIF KHAN WAS THE SALES MANAGER OF THE COMPANY AND THE ADV ANCE WAS ADJUSTED AGAINST THE WORK WHICH HE WAS STATED TO BE P ERFORMING. ACCORDINGLY, WE DEEM IT APPROPRIATE TO SET ASIDE THE ISSU E BACK TO THE AO DIRECTING THE SAID AUTHORITY TO FIRST ADDRESS THE FACTS AN D THEREAFTER CONSIDER THE APPLICABILITY OF DECISIONS THEREON. ACCORDINGLY, IN THE ABSENCE OF ANY RELEVANT DISCUSSION IN THE ORDER OR THE M ATERIAL FACT, ITA 501/CHD/2017 A.Y. 2013-14 PAGE 18 OF 19 GROUND NO. 2 OF THE ASSESSEE IS SET ASIDE AND RESTORED BACK TO THE FILE OF AO. 8. ADDRESSING THE ISSUE IN GROUND NO. 3, THE LD. AR HAS RELIE D UPON THE DECISION OF SAGUN FOUNDRY PVT. LTD. VS CIT 145 DTR 265 (ALL)(COPY PLACED AT PAGES 79 TO 92) FOR THE PROPOSITION EVEN IF PF E SI HAS BEEN PAID AFTER DUE AS IN THE RESPECTIVE ACT BUT BEFORE THE DUE D ATE OF FILING OF THE RETURN, NO DISALLOWANCE CAN BE MADE. THE LD. CIT-DR HAS RELIED UPON ORDERS OF THE TAX AUTHORITIES. WE FIND THAT THOUGH THE IS SUE IS ADDRESSED BEFORE THE CIT(A), HOWEVER, THERE IS NO SPECIFIC FINDING COMING OUT FROM THE ORDER. SINCE THE ISSUE IS FIRST TO BE CONSIDERED ON FA CTS, IT IS ALSO, ACCORDINGLY, SET ASIDE BACK TO THE FILE OF THE AO WITH THE DIRECTION TO FIRST ADDRESS FACTS AND THEREAFTER PASS A SPEAKING ORDER THE REON IN THE LIGHT OF THE PROVISIONS OF THE ACT AND SETTLED LEGAL POSITION THEREON. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04.10. 2017. SD/- SD/- ( DR.B.R.KUMAR) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER POONAM COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSTT. REGISTRAR ITAT,CHANDIGARH. ITA 501/CHD/2017 A.Y. 2013-14 PAGE 19 OF 19 1. DRAFT DICTATED 03.08.2017 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 28.08.2017 22.09.2017 SR.PS 3. APPROVED DRAFT COMES TO THE SR.PS/PS 28.09.2017 03.10.2017 SR.PS 4. ORDER SIGNED AND PRONOUNCED ON 5 FILE SENT TO THE BENCH CLERK SR.PS 6. DATE ON WHICH FILE GOES TO THE AR 7. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 8. DATE OF DISPATCH OF ORDER