M/s. Abhilash Software Development Centre, Bangalore V. Income Tax Officer, Ward- 6(3)(2), Bangalore

ITA 51/BANG/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7320 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2021
• Assessment Year: 2013-2014
• Appeal Filed On: 26-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA
• Keywords: Condonation of delay
• Section: 143(3); 80IA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES B, BANGALORE BEFORE SHRI GEORGE GEORGE K, JM & SHRI B.R.BASKARAN, AM ITA NO.51/BANG/2021: ASST.YEAR 2013-2014 M/S.ABHILASH SOFTWARE DEVELOPMENT CENTRE, NO.2/10, 3 RD FLOOR, PRASAD GROUP 80 FEET ROAD, PUJARI LAYOUT RMV 2 ND STAGE BANGALORE 560 094. PAN : AAIFM8040N. V. THE INCOME TAX OFFICER WARD 6(3)(2) BANGALORE. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI.BALRAM R.RAO, ADVOCATE RESPONDENT BY : SRI.PRIYADARSHI MISHRA, ADDL.CIT-DR DATE OF HEARING : 12.08.2021 DATE OF PRONOUNCEMENT : 17.08.2021 O R D E R PER GEORGE GEORGE K, JM THIS APPEAL AT THE INSTANCE OF THE ASSESSEE IS DIRECTED AGAINST CIT(A)S ORDER DATED 18.09.2017. THE RELEVANT ASSESSMENT YEAR IS 2013-2014. 2. THERE IS A DELAY OF 1138 DAYS IN FILING THIS APPEAL. THE ASSESSEE HAS FILED A PETITION FOR CONDONATION OF DELAY AND AN AFFIDAVIT OF THE MANAGING PARTNER, STATING THEREIN THE REASONS FOR BELATED FILING OF THIS APPEAL. IT IS STATED IN THE AFFIDAVIT THAT AS SOON AS THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE, THE ASSESSEE HAD FILED RECTIFICATION APPLICATION SEEKING TO MODIFY THE APPELLATE ORDER. SINCE THE RECTIFICATION PETITION WAS NOT DISPOSED OF BY THE CIT(A), THE ASSESSEE WAS FORCED TO FILE APPEAL BELATEDLY BEFORE THE ITAT. IT IS STATED THAT THE DELAY WAS UNINTENTIONAL AND DUE TO BONAFIDE REASONS AND PRAYED ITA NO.51/BANG/2021. M/S.ABHILASH SOFTWARE DEVELOPMENT CENTRE. 2 THE DELAY MAY BE CONDONED OTHERWISE THE ASSESSEE WOULD BE PUT INTO IRREPARABLE LOSSES. 2.1 THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE OUGHT TO HAVE PURSUED THE RECTIFICATION APPLICATION OR FILED THE APPEAL ON TIME. THEREFORE, IT WAS SUBMITTED THAT THE REASONS STATED IN THE AFFIDAVIT FOR CONDONATION OF DELAY IS DEVOID OF ANY MERITS. 2.2 WE HAVE HEARD BOTH SIDES. THE ASSESSEE HAS FILED A RECTIFICATION APPLICATION WITHIN THE PERIOD PRESCRIBED FOR RECALLING THE CIT(A)S ORDER DATED 18.09.2017. PRAYER IN THE RECTIFICATION APPLICATION AND THIS APPEAL IS IDENTICAL, I.E., FOR GRANT OF DEDUCTION U/S 80IA(4)(III) OF THE I.T.ACT. SINCE THE CIT(A) HAS NOT DISPOSED OF THE RECTIFICATION APPLICATION, THE ASSESSEE WAS FORCED TO FILE THIS APPEAL BEFORE THE ITAT. THE ASSESSEE WAS BONAFIDELY PURSUING AN ALTERNATIVE REMEDY FOR SEEKING DEDUCTION U/S 80IA(4)(III) OF THE I.T.ACT. HENCE WE ARE OF THE VIEW THAT THE DELAY IN FILING THIS APPEAL IS UNINTENTIONALLY AND DUE TO BONAFIDE REASONS AND NO LATCHES CAN BE ATTRIBUTED TO THE ASSESSEE. THEREFORE, THE DELAY IN FILING THIS APPEAL IS CONDONED AND WE PROCEED TO DISPOSE OF THE APPEAL ON MERITS. 3. THE SOLITARY ISSUE RAISED IS WHETHER THE CIT(A) IS JUSTIFIED IN CONFIRMING THE A.O.S ACTION IN DENYING THE CLAIM OF DEDUCTION U/S 80IA OF THE I.T.ACT AMOUNTING TO RS.4,25,01,040. 4. THE BRIEF FACTS OF THE CASE ARE AS FOLLOW: ITA NO.51/BANG/2021. M/S.ABHILASH SOFTWARE DEVELOPMENT CENTRE. 3 THE ASSESSEE IS A FIRM ENGAGED IN THE BUSINESS OF DEVELOPMENT OF INDUSTRIAL PARK. THE RETURN OF INCOME WAS FILED ON 28.09.2013 DECLARING `NIL INCOME. THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE I.T.ACT BY DENYING THE CLAIM OF DEDUCTION U/S 80IA OF THE I.T.ACT. THE RELEVANT OBSERVATION OF THE A.O. IN DENYING THE BENEFIT U/S 80IA OF THE I.T.ACT, READS AS FOLLOW:- 6.THE REQUEST OF THE ASSESSEE CANNOT BE CONSIDERED AS THERE IS NO NOTIFICATION ISSUED BY THE CBDT AND ALSO FURTHER APPROVAL YET TO BE GRANTED BY THE DEPARTMENT OF INDUSTRIAL POLICY PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY. IN VIEW OF THIS THE DEDUCTION CLAIMED U/S 80IA IN RESPECT OF INDUSTRIALS PARK AMOUNTING TO RS.4,25,01,040/- IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME. 4.1 ON FURTHER APPEAL, THE VIEW TAKEN BY THE ASSESSING OFFICER WAS CONFIRMED FOR THE SOLITARY REASON THAT THE ASSESSEE HAS FAILED TO FURNISH THE CBDT NOTIFICATION IN RESPECT OF ITS INDUSTRIAL PARK. 4.2 AGGRIEVED BY THE SAID ORDER OF THE CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. THE LEARNED AR SUBMITTED THAT THE ASSESSEE HAS FILED RECTIFICATION APPLICATION BEFORE THE CIT(A) FOR RECALLING THE APPELLATE ORDER. IT WAS SUBMITTED THAT THE HONBLE HIGH COURT OF KARNATAKA IN WRIT PETITION NO.13172/2013 HAD RESTORED THE APPROVAL GRANTED BY THE DEPARTMENT OF INDUSTRIAL POLICY, PROMOTION, MINISTRY OF COMMERCE AND INDUSTRY AND PURSUANT TO THE HONBLE HIGH COURT JUDGMENT, THE CBDT HAD ISSUED NOTIFICATION FOR GRANT OF DEDUCTION U/S 80IA OF THE I.T.ACT AND THE SAME IS ONLY A FORMALITY. IT WAS SUBMITTED THAT IN THE RECTIFICATION APPLICATION THESE DETAILS ARE BROUGHT OUT. ITA NO.51/BANG/2021. M/S.ABHILASH SOFTWARE DEVELOPMENT CENTRE. 4 4.3 THE LEARNED DR SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND THE CIT(A). 4.4 WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS A FACT THAT SUBSEQUENT TO THE HONBLE HIGH COURT JUDGMENT, CBDT HAS ISSUED NOTIFICATION TO THE ASSESSEES INDUSTRIAL PARK. A COPY OF THE SAME WAS PLACED ON RECORD. ACCORDINGLY, THE CLAIM U/S 80IA OF THE I.T.ACT WAS ALLOWED FOR ASSESSMENT YEARS 2009-2010, 2012-2013, 2014- 2015 AND 2015-2016. SINCE THE ASSESSEES RECTIFICATION APPLICATION HAS BROUGHT OUT THE ENTIRE FACTS, THE CIT(A) IS DIRECTED TO DISPOSE OF THE RECTIFICATION APPLICATION AS EXPEDITIOUSLY AS POSSIBLE. WITH THESE DIRECTIONS, THIS APPEAL IS DISPOSED OF. IT IS ORDERED ACCORDINGLY. 5. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THIS 17 TH DAY OF AUGUST, 2021 . SD/- SD/- ( B.R.BASKARAN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE; DATED : 17 TH AUGUST, 2021. DEVADAS G* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(A)-6, BENGALURU 4. THE PR.CIT-6,BENGALURU. 5. THE DR, ITAT, BENGALURU. 6. GUARD FILE. ASST.REGISTRAR/ITAT, BANGALORE