M/S KIRAN INFRA ENGiNEERS LTD., Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-4, Jaipur

ITA 571/JPR/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6037 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 27-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAY SINGH
• Keywords: Rejection of books of accounts; Question of law; Cost of acquisition
• Section: 80IB; 205; 80IA; 68

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC H B JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRA M SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 571/JP/2018 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR :2013-14 M/S KIRAN INFRA ENGINEERS LTD., B-141, ROAD NO. 9D, VKI AREA, JAIPUR CUKE VS. ACIT, CIRCLE-4, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AACCK8188N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI JAY SINGH (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 31/07/2019 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 01/08/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-2, JAIPUR DATED 28.03.2018 FOR AY 2013-14. 2. GROUND NO. 1 OF THE ASSESSEES APPEAL RELATES TO CONFIRMATION OF THE ACTION OF THE ASSESSING OFFICER IN REJECTING THE BO OKS OF THE ACCOUNTS U/S 145(3) OF THE ACT. DURING THE COURSE OF HEARING, THE LD. A R DID NOT PRESS THE SAID GROUND OF APPEAL. HENCE, THE SAID GROUND IS DISMISS ED AS NOT PRESSED. 3. IN GROUND NO. 2, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN UPHOLDING THE GP RATE OF 7% IN RESPECT OF MANUFA CTURING ACTIVITY CARRIED OUT BY THE ASSESSEE COMPANY DURING THE YEAR UNDER CONSI DERATION. IN THIS REGARD, THE LD AR DRAWN OUR REFERENCE TO THE COMPARATIVE GR OSS PROFIT FOR PREVIOUS YEARS AND YEAR UNDER CONSIDERATION AS UNDER:- ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 2 A.Y. SALES GROSS PROFIT RATE DECLARED BY THE ASSESSEE 2011-12 1,38,80,048 8,41,865 6.06% 2012-13 1,14,52,126 7,74,449 6.76% 2013-14 1,76,11,175 10,56,671 6.00% 4. IT WAS SUBMITTED BY THE LD AR THAT AS AGAINST GP RATE OF 6% DECLARED BY ASSESSEE, THE AO APPLIED GP RATE OF 8% SOLELY BA SED UPON THE REJECTION OF BOOKS OF ACCOUNTS AND WITHOUT POINTING OUT ANY SPEC IFIC INSTANCE OF NON- GENUINE EXPENDITURE OR ANY EXPENDITURE BEING EXCESS IVELY CLAIMED. ON APPEAL, LD. CIT(A) REDUCED THE SAME TO 7%. 5. IT WAS SUBMITTED THAT IN IMMEDIATELY PRECEDING A SSESSMENT YEAR I.E. A.Y.2012-13, THE LD.AO HAD NOT ACCEPTED THE BOOK RE SULTS DECLARED BY THE ASSESSEE AND HAD APPLIED GP RATE OF 8%, WHICH WAS C ONFIRMED BY LD.CIT(A) ALSO. HOWEVER, ON FURTHER APPEAL, THE TRIBUNAL UPHE LD THE GP RATE DECLARED BY ASSESSEE. 6. IT WAS FURTHER SUBMITTED THAT THE SOLE REASON FO R WHICH LD. CIT(A) HAS NOT ACCEPTED THE GP DECLARED BY ASSESSEE IS THAT GP RATE HAS REDUCED IN COMPARISON TO A.Y.2012-13. IN THIS REGARD, IT IS SU BMITTED THAT TURNOVER OF ASSESSEE COMPANY HAS INCREASED MANIFOLD AND IN FACT , IN MONETARY TERMS, GP HAS INCREASED BY RS. 2,82,222/- I.E. BY 36.44% IN C OMPARISON TO IMMEDIATELY PRECEDING ASSESSMENT YEAR. IT IS SUBMITTED THAT IN ORDER TO ACHIEVE HIGHER TURNOVER, ASSESSEE HAD TO WORK ON COMPARATIVELY LOW ER MARGIN, THOUGH THE GROSS PROFIT IN VALUE TERMS HAS INCREASED SUBSTANTI ALLY, AS MENTIONED ABOVE. FURTHER, IT IS A SETTLED POSITION OF LAW THAT DECLI NE IN GP DOES NOT NECESSARILY WARRANT TRADING ADDITION. IT WAS SUBMITTED THAT A M ARGINAL FALL IN GP RATE BY 0.76% IS ATTRIBUTABLE TO THE INCREASE IN TURNOVER A S MENTIONED ABOVE AND ALSO DUE TO INCREASE IN THE PURCHASE COST OF MATERIAL. T HE PURCHASES HAVE BEEN MADE FROM REPUTED SUPPLIERS AND ALL THE PAYMENTS HA VE BEEN MADE THROUGH ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 3 PAYEES ACCOUNT CHEQUE AND ALL THE SALES HAVE BEEN MADE TO THE RAILWAYS THUS IN THE CIRCUMSTANCES TRADING RESULTS DECLARED DESER VES TO BE ACCEPTED. IT WAS ACCORDINGLY SUBMITTED THAT THE RESULTS DECLARED DES ERVES TO BE ACCEPTED AND THE ADDITIONS SUSTAINED BY LD.CIT(A) DESERVES TO BE DELETED. 7. PER CONTRA, THE LD. DR IS HEARD WHO HAS RELIED O N THE ORDER OF THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE FIND INGS OF THE LD. CIT(A) WHICH ARE CONTAINED AT PARA 3.3 WHICH READS AS UNDER:- 3.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. THE AO NOTED THAT THE APPELLANT HAS RETURNED A GROSS PROFIT OF RS 10,56,671/-ON A SALES TURNOVER OF RS 1,76,11,175/- GIVING A GP RATE OF 6% FROM THE MANUF ACTURING ACTIVITY. THIS ISSUE HAS BEEN DECIDED BY THE ITAT, JAIPUR FOR ASSESSMENT YEAR 2012-13 WHEREIN THE APPELLANT HAD SHOWN A GP RATE O F 6.76% WHICH THE AO HAD ESTIMATED AT 8% AFTER REJECTION OF BOOKS AND CIT(A) HAD CONFIRMED THE SAME. IN THE PRESENT PROCEEDINGS IT W AS STATED THAT A MARGINAL FALL IN GP RATE OF 0.76% IS ATTRIBUTABLE T O THE INCREASE IN TURNOVER AND INCREASE IN PURCHASE COST OF MATERIAL. IT WAS FURTHER SUBMITTED THAT IF THE BOOKS OF ACCOUNT ARE REJECTED AND THERE IS APPLICATION OF PROVISIONS OF SECTION 145(3), A REAS ONABLE PROFIT MAY BE APPLIED. AS REGARDS REJECTION OF BOOKS, THE SAME HA S BEEN RESORTED TO IN PAST SEVERAL YEARS DUE TO DEFECTS IN THE BOOK OF AC COUNTS AND UPHELD BY THE ITAT. IN FACT FOR ASSESSMENT YEAR 2012-13 THE A PPELLANT HAS NOT EVEN PRESSED THIS GROUND BEFORE THE TRIBUNAL. IN TH E ORDER FOR ASSESSMENT YEAR 2012-13 THE ITAT HAD HELD THAT THE AO HAD NOT GIVEN ANY BASIS FOR APPLYING GP RATE OF 8% WHICH IS FOLLO WED FROM THE PAST YEARS. IT WAS ALSO HELD THAT IN VIEW OF THE PAST HI STORY THE SAME AT GP% OF 6.76% WAS BETTER THAN THE PREVIOUS YEAR OF 6.06% AND THUS EVEN ON DECREASED TURNOVER, THE APPELLANT WAS ABLE TO REPOR T A GP RATE OF 6.76% ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 4 WHICH IS BETTER THAN IN THE PAST AND THE SAME WAS A CCEPTED. IN THE YEAR UNDER CONSIDERATION REJECTION OF BOOKS HAS ALREADY BEEN ACCEPTED BY THE APPELLANT IN THE PAST AND BY ITS OWN CONTENTION, TH E NATURE OF BUSINESS HAVING REMAINED THE SAME AS IN THE PREVIOUS YEAR. I N THIS YEAR, IT IS SEEN THAT THERE IS INCREASE IN TURNOVER AND GP HAS GONE DOWN FROM 6.76% TO 6%. IN MY OPINION, SINCE THE GP RATE HAS GONE DOWN AND THE REJECTION OF BOOKS HAS BEEN ACCEPTED BY THE APPELLANT, THE ESTIM ATION OF GP AT 7% FOR THE CURRENT YEAR WILL BE IN CONSONANCE WITH 6.7 % IN THE PREVIOUS YEAR AND THE SAME IS APPLIED. GROUND OF APPEAL IS PARTLY ALLOWED. 8. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN CONFIRMING THE LUMP SUM ADDITION OF RS. 25,00,00 0/- IN RESPECT OF CONTRACT ACTIVITY CARRIED OUT BY THE ASSESSEE DURING THE YEA R UNDER CONSIDERATION. 9. IN THIS REGARD, OUR REFERENCE WAS DRAWN TO THE R ESULTS DECLARED BY THE ASSESSEE IN CONTRACT ACTIVITY FOR THE YEAR UNDER AP PEAL AND OF IMMEDIATELY PRECEDING TWO ASSESSMENT YEARS AS UNDER: ASSESSMENT YEAR GROSS CONTRACT RECEIPTS G.P. RATE DECLARED 2011-12 52,29,79,837.00 5.99% 2012-13 45,08,97,697.00 5.98% 2013-14 1,00,10,12,108.62 5.42% 10. IT WAS SUBMITTED BY THE LD AR THAT FROM THE PER USAL OF THE ABOVE CHART, IT IS CLEAR THAT GROSS RECEIPTS HAVE INCREASED SUBSTAN TIALLY IN THE YEAR UNDER CONSIDERATION, AND THEREBY A MARGINAL FALL IN GP RA TE IS BOUND TO OCCUR. IT IS ALSO RELEVANT TO NOTE THAT THE EXPENDITURE INCURRED BY THE ASSESSEE ON THE VARIOUS WORK SITES ARE MOST REASONABLE AND MODERATE LOOKING TO THE NATURE OF ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 5 WORK WHICH ARE DULY SUPPORTED BY THE RELEVANT INVOI CES AND VOUCHERS MAINTAINED FOR THE EXPENDITURE CLAIMED. HOWEVER, TH E AO HAS APPLIED GP RATE OF 8% ON VERY GENERALIZED ALLEGATIONS REGARDING DEF ECTS IN BOOKS OF ACCOUNTS AND WITHOUT POINTING OUT ANY SPECIFIC DEFECTS IN BO OKS OF ACCOUNTS. ON APPEAL, LD.CIT(A) HAS UPHELD LUMPSUM ADDITION AT RS.25.00 L ACS. 11. IT WAS FURTHER SUBMITTED THAT IN A.Y. 2009-10, THE TRIBUNAL VIDE ITS ORDER DATED 26.04.2013 (ITA NO. 712/JP/12 & CO NO. 01/JP/ 13) HAS UPHELD A LUMP SUM AMOUNT OF RS. 10.00 LAC ON ACCOUNT OF THE DEFEC TS IN THE BOOKS OF ACCOUNTS AS AGAINST THE PROFIT RATE OF 8% APPLIED B Y THE LD. AO. SUBSEQUENTLY, IN A.Y.2012-13 ALSO, LD.AO MADE TRADING ADDITION BY APPLYING GP RATE OF 8% WHICH WAS REDUCED BY LD. CIT(A) AND WAS EVENTUALLY REDUCED TO RS.10.00 LACS BY THE TRIBUNAL. IT WAS SUBMITTED THAT THE FACTS A ND THE CIRCUMSTANCES AS EXISTED IN THE PRECEDING ASSESSMENT YEARS AND IN TH E YEAR UNDER APPEAL ARE THE SAME, EXCEPT THE PERTINENT POINT THAT IN AN EFFORT TO INCREASE THE TURNOVER, THE ASSESSEE HAD TO WORK ON LOWER MARGINS LEADING TO RE DUCTION IN GP RATE, THOUGH THE GROSS PROFIT IN VALUE TERMS HAD INCREASED SUBST ANTIALLY. CONSIDERING THE PAST DECISION OF THE TRIBUNAL IN AY 2009-10 AND A.Y .2012-13 AND ALSO CONSIDERING THE GROSS PROFIT IN VALUE TERMS SHOWN B Y ASSESSEE HAS INCREASED SUBSTANTIALLY, IT WAS SUBMITTED THAT FURTHER ADDITI ON SO MADE BY AO PARTLY SUSTAINED BY CIT(A) MAY BE DELETED. 12. PER CONTRA, THE LD. DR RELIED ON THE FINDINGS O F THE LOWER AUTHORITIES AND OUR REFERENCE WAS DRAWN TO THE RELEVANT FINDINGS OF THE LD. CIT(A) WHICH ARE REPRODUCED AS UNDER:- AS REGARDS QUANTUM OF DISALLOWANCE, THE SAME HAD BEEN CONFIRMED BY THE ITAT AT RS10,00,000/-, THE TURNOVER IN THE TWO YEARS REMAINING SIMILAR. IN THE YEAR UNDER CONSIDERATION, THE TURNO VER HAS INCREASED TO RS 1,00,10,12,108/-WHICH IS ALMOST 2 1 / 2 TIMES OF THE PREVIOUS ASSESSMENT ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 6 YEAR AND ALSO THE GP RATE HAS REDUCED FROM 6.76% IN ASSESSMENT YEAR 2012-13 TO 6% IN ASSESSMENT YEAR 2013 -14 ON AN INC REASED TURNOVER OF RS.1,76,11,175/-COMPARED TO RS.1,14,52,126/- IN THE PREVIOUS YEAR. IN VIEW OF THE DISCUSSION AS ABOVE AND THE DECISIONS O F THE HON'BLE ITAT, JAIPUR IN ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2 009-10 AND ASSESSMENT YEAR 2012-13, AN ADDITION OF RS.25 LAKHS IS CONFIRMED IN VIEW OF THE INCREASED TURNOVER. THE GROUND OF APPEAL IS PARTLY ALLOWED. 13. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS A SETTLED LEGAL PROPOSITION THAT ONCE THE BOOKS OF ACCOUNTS HAVE BEEN REJECTED AND HAVE NOT BEEN DISPUTED AS IN THE INSTANT CASE, THE ASSESSING OFFICER IS REQUIRED TO ESTIMATE THE N.P R ATE IN THE HANDS OF THE ASSESSEE. IN THE INSTANT CASE, THE ASSESSEE COMPAN Y HAS REPORTED SEGMENTAL RESULTS IN RESPECT OF ITS MANUFACTURING AS WELL AS CONTRACT ACTIVITY WHEREIN IT HAS REPORTED NP RATE OF 6% IN RESPECT OF ITS MANUFACTUR ING ACTIVITIES AND 5.42% IN RESPECT OF ITS CONTRACTUAL ACTIVITIES. THE AO HAS A PPLIED NP RATE OF 8% ACROSS BOTH THE SEGMENTS AND LD CIT(A) HAS REDUCED IT TO 7 % IN RESPECT OF MANUFACTURING ACTIVITIES AND HAS DONE A LUMP SUM DI SALLOWANCE OF RS 25 LACS IN RESPECT OF CONTRACTUAL ACTIVITIES. FURTHER, THE LD AR HAS RELIED UPON THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR AY 2009- 10 AND AY 2012-13 WHERE LUMPSUM DISALLOWANCE WAS SUSTAINED AT RS 10 LACS IN RESPECT OF CONTRACTUAL ACTIVITIES. HOWEVER, WE FIND THAT BOTH THE LD CIT( A) AND THE TRIBUNAL HAVE NOT GONE INTO THE ISSUE OF REASONABLE AND PROPER ESTIMA TE BY APPLYING AVERAGE NP RATE BASED ON PAST HISTORY AS HELD BY THE HONBLE J URISDICTIONAL HIGH COURT IN CASE OF CIT VS GUPTA K N CONSTRUCTION 116 DTR 377 A S WELL AS IN VARIOUS OTHER DECISIONS WHEREIN IT HAS BEEN HELD THAT THE BEST GU IDE IN THE CASE OF FAIR ESTIMATION IS THE PAST HISTORY OF PROFIT RATE DECLA RED BY THE ASSESSEE WHICH CAN BE APPLIED BY THE ASSESSING OFFICER FOR ESTIMATING SUCH PROFITS IN ABSENCE OF ANY THIRD PARTY COMPARABLES. FOR THE PURPOSES, PAST ONE OR TWO YEAR RESULTS ARE ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 7 NOT DETERMINATIVE RATHER THE AVERAGE OF THE NP RATE FOR THE PAST AT LEAST THREE YEARS WHICH HAS BEEN ACCEPTED OR HAS ATTAINED FINAL ITY IS REQUIRED TO BE DETERMINED AND WHICH CAN ACT AS AN APPROPRIATE BASI S FOR ESTIMATING THE NP RATE FOR THE YEAR UNDER CONSIDERATION. GIVEN THAT T HE ASSESSEE HAS MAINTAINED SEGMENTAL RESULTS IN RESPECT OF ITS MANUFACTURING A ND CONTRACT ACTIVITIES, WE, THEREFORE, DIRECT THE ASSESSING OFFICER TO VERIFY T HE NP RATE FOR THE PAST YEARS SEPARATELY FOR BOTH THE SEGMENTS WHICH HAS BEEN ACC EPTED OR HAS ATTAINED FINALITY AND COMPARE THE SAME WITH THE SEGMENTAL NP RESULTS DECLARED FOR THE YEAR UNDER CONSIDERATION AND DETERMINE THE VARIANCE . WHERE THE NP RATE DECLARED BY THE ASSESSEE IS LOWER THAN THE AVERAGE NP RATE FOR THE PAST YEARS, APPLY THE AVERAGE NP RATE SO DETERMINED. IN CASE T HE NP RATE DECLARED BY THE ASSESSEE IS HIGHER THAN THE AVERAGE NP RATE FOR THE PAST YEARS, THE NP RATE SO DECLARED BY THE ASSESSEE SHOULD BE ACCEPTED. IN TH E RESULT, THE GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 14. IN GROUND NO. 4, THE ASSESSEE HAS CHALLENGED TH E DISALLOWANCE OF DEDUCTION CLAIMED U/S 80IA OF THE INCOME TAX ACT, 1 961 AMOUNTING TO RS. 65,80,617/- ON THE TECHNICAL GROUND THAT THE AU DIT REPORT IN FORM 10CCB, AS PRESCRIBED UNDER RULE 12(2) WAS NOT ELECTRONICALLY FILED, ALONG WITH THE E-RETURN FILED BY THE ASSESSEE. 15. IN THIS REGARD, THE LD AR SUBMITTED THAT BOOKS OF ACCOUNTS OF ASSESSEE WERE SUBJECT TO AUDIT AS PER THE PROVISIONS OF INCO ME TAX ACT, ACCORDINGLY DUE DATE FOR FURNISHING RETURN OF INCOME WAS 30.09.2013 WHICH WAS FURTHER EXTENDED TO 31.10.2013. AS PER PROVISIONS OF THE AC T, IN ORDER TO CLAIM DEDUCTION U/S 80IA, ASSESSEE HAS TO FURNISH FORM 10 CCB AS PRESCRIBED IN THE INCOME TAX RULES. IN THE INSTANT CASE, THE AUDIT RE PORT IN THE PRESCRIBED FORM 10CCB WAS FILED MANUALLY (PAPER FORM) BEFORE THE AO ON 27.09.2013, AND THE SAME WAS SUBMITTED AGAIN AT THE TIME OF ASSESSMENT PROCEEDINGS. THE ONLY ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 8 REASON FOR MAKING DISALLOWANCE WAS THAT THE FORM 10 CCB WAS NOT FILED ALONG WITH THE E-RETURN, AS REQUIRED UNDER RULE 12(2) OF IT RULES, 1962. THE AO HAS CONTENDED THAT UNDER THE AMENDED RULE 12(2) OF IT R ULES,1962 W.E.F 1.04.2013, THE AUDIT REPORT IN FORM 10CCB HAD TO BE SUBMITTED ELECTRONICALLY ALONG WITH THE E-RETURN BEFORE DUE DATE, IN ORDER T O AVAIL THE DEDUCTION U/S 80IA. AND SINCE THE SAME WAS NOT FILED ELECTRONICAL LY BY THE ASSESSEE, EVEN TILL THE EXTENDED DUE DATE OF 30.10.2013, THE CLAIM OF D EDUCTION U/S 80IA, WAS NOT ACCEPTABLE. 16. IT WAS SUBMITTED BY THE LD AR THAT THE REQUIREMENT OF FILING THE REPORT IS MANDATORY AND FAILURE TO FILE IT IS NO DOUBT FATAL. HOWEVER, THE ASSESSEE DID FILE THE REPORT MANUALLY BEFORE THE AO ON 27.09.2013 WEL L BEFORE THE DUE DATE OF FILING THE RETURN. MERELY BECAUSE SAME COULD NOT BE FILED ELECTRONICALLY CANNOT LEAD TO A SITUATION THAT ASSESSEE IS DEPRIVED OF IT S OTHERWISE LEGITIMATE CLAIM OF DEDUCTION. 17. IT WAS FURTHER SUBMITTED THAT THERE ARE CATENA OF DECISIONS WHEREIN THE ASSESSEE FAILS TO FILE SUCH REPORT ALONG WITH THE RETURN AND FILES IT SUBSEQUENTLY IN ASSESSMENT PROCEEDINGS, BUT BEFORE COMPLETION OF THE ASSESSMENT, IT WAS CONSIDERED TO BE NOT FATAL TO THE CLAIM OF THE ASSESSEE AND REQUIREMENT OF FILING THE PRESCRIBED REPORT WAS TREATED TO BE COMPLIED WI TH. THE COURTS HAVE FURTHER HELD THAT THIS BEING ONLY A PROCEDURAL ERROR, COULD NOT BAR THE ASSESSEE FROM BEING ALLOWED A CLAIM WHICH IS OTHERWISE LEGITIMATE AND ALLOWABLE. 18. IT WAS FURTHER SUBMITTED THAT NEITHER LD.AO NOR THE CIT(A) HAS DOUBTED THE LEGITIMACY OF THE CLAIM MADE U/S 80IA. FURTHER THIS WAS THE FOURTH YEAR OF CLAIMING THE DEDUCTION U/S 80IA, AND THE SAME HAS B EEN CONSISTENTLY ALLOWED AS CLAIMED FOR IN ALL EARLIER YEARS AND ALSO SUBSEQ UENT YEARS. THUS, MERELY ON A TECHNICAL GROUND THE DEDUCTION OTHERWISE ALLOWABLE, OUGHT NOT TO BE DISALLOWED TO THE ASSESSEE. ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 9 19. IT WAS FURTHER SUBMITTED THAT THE JAIPUR BENCH OF ITAT IN THE CASE OF ITO VS MARATHON INDIA LTD. (ITA NO.287/JP/2018 VIDE ORDER DATED 27.06.2018) HAS DISMISSED THE APPEAL FILED BY DEPARTMENT UNDER IDEN TICAL CIRCUMSTANCES AFTER FOLLOWING THE APEX COURT DECISION A CITED ABOVE. FU RTHER BY PLACING RELIANCE ON THE ABOVE STATED DECISION, SMC BENCH OF JAIPUR ITAT IN THE CASE OF UNIQUE BUILDERS AND DEVELOPERS (AJIT) HAS ALSO ALLOWED THE DEDUCTION U/S 80IA WHERE THE REPORT WAS FILED MANUALLY AND NOT ELECTRONICALL Y. 20. IT WAS FURTHER SUBMITTED THAT CASE OF ASSESSEE IS ON FAR BETTER FOOTING THAN THE ABOVE CITED CASE LAWS IN AS MUCH AS IN THE SE CITED CASES ASSESSEE FILED THE AUDIT REPORT DURING ASSESSMENT PROCEEDING S WHEREAS APPELLANT HAD FILED THE REPORT EVEN BEFORE THE DUE DATE OF RETURN AND LATER ON ALSO FILED ANOTHER COPY IN ASSESSMENT PROCEEDINGS AND ONLY TEC HNICALLY IS THAT ASSESSEE COULD NOT FILE THE REPORT ELECTRONICALLY ALONGWITH RETURN OF INCOME. 21. IT WAS FINALLY SUBMITTED THAT A NUMBER OF JUDIC IAL FINDINGS SUPPORT THE VIEW THAT FILING OF FORM 10CCB IS DIRECTORY IN NATU RE AND CAN BE FILED BEFORE THE COMPLETION OF THE ASSESSMENT PROCEEDINGS. IN THE CA SE OF THE ASSESSEE THE AUDIT REPORT WAS FILED BEFORE THE AO, EVEN BEFORE T HE ASSESSMENT PROCEEDINGS WERE INITIATED. THUS, THE LEGITIMATE CLAIM, OUGHT N OT TO HAVE BEEN DISALLOWED, MERELY ON A TECHNICAL GROUND, AND THE ASSESSEE PRAY S ACCORDINGLY. 22. PER CONTRA, THE LD. DR RELIED ON THE FINDINGS O F THE ASSESSING OFFICER AS WELL AS THAT OF THE LD. CIT(A) AND OUR REFERENCE WA S DRAWN TO PARA NO. 5.3 OF THE LD. CIT(A) ORDER WHICH READS AS UNDER: 5.3 I HAVE PERUSED THE FACTS OF THE CASE, THE ASSE SSMENT ORDER AND THE SUBMISSIONS OF THE APPELLANT. AS NOTED BY THE AO TH E APPELLANT DID NOT FILE THE AUDIT REPORT IN FORM 10CCB ELECTRONICALLY THOUGH THE AMENDMENT TO RULE-12(2) WAS MADE BY IT (SEVENTH AMDT) RULES, 2013 W.R.E.F. 01.04.2013, IT MEANS THAT THESE WERE APPLICABLE FRO M A.Y 2013-14. THE ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 10 ASSESSEE FAILED TO SUBMIT FORM 10CCB ONLINE, THEREF ORE, NOT ELIGIBLE FOR DEDUCTION U/S 80IA. IT WAS FURTHER NOTED THAT THE C BDT HAS ISSUED ORDER U/S 119(2)(A) ON 26.09.2013 AND EXTENDED DATE OF E- FILING OF AUDIT REPORT TO 31-10-2013 BUT SUBJECT TO CONDITION THAT THE ASS ESSEE SHOULD FILE AUDIT REPORT ALONGWITH COPY OF RETURN IN PAPER FORM BEFOR E THE ASSESSING OFFICER BEFORE 30-07-2013 AND THEREAFTER MANDATORY E-FILE THE AUDIT REPORT BEFORE 31-10-2013 BUT THIS WAS ALSO NOT COMP LIED BY THE APPELLANT, THE ASSESSEE HAS NOT FILED FORM 10CCB IN PAPER FORM BEFORE 31-07-2013 BEFORE THE AO AND SINCE THE ASSESSEE FAI LED TO E-FILE FORM NO. 10CCB WHICH WAS MANDATORY, THEREFORE, THEY WERE OTH ERWISE NOT ELIGIBLE TO CLAIM DEDUCTION U/S 80IA AND THE SAME WAS DENIED BY THE AO. IN THE PRESENT PROCEEDINGS IT WAS SUBMITTED THAT THE AUDIT REPORT IN THE PRESCRIBED FORM 10CCB WAS FILED MANUALLY (PAPER FOR M) BEFORE THE AO ON 27.09.2013, AND THE SAME WAS SUBMITTED AGAIN AT THE TIME OF ASSESSMENT PROCEEDINGS. IT WAS FURTHER SUBMITTED AG AIN AT THE TIME OF ASSESSMENT PROCEEDINGS. IT WAS FURTHER SUBMITTED TH AT THE ONLY REASON FOR MAKING DISALLOWANCE WAS THAT THE FORM 10CCB WAS NOT FILED ALONG WITH THE E-RETURN, AS REQUIRED U/R 12(2) OF IT RULE S, 1962. EVEN TILL THE EXTENDED DUE DATE OF 30.10.2013 AND THE CLAIM OF DE DUCTION U/S 80IA, WAS DISALLOWED. IT WAS CONTENDED THAT THE AO HAS NO WHERE DOUBTED THE LEGITIMACY OF THE CLAIM MADE U/S 80IA AND THIS BEIN G THE FOURTH YEAR OF CLAIMING THE DEDUCTION U/S 80IA, AND THE SAME HAS B EEN CONSISTENTLY ALLOWED AS CLAIMED FOR ALL EARLIER YEARS. MERELY ON A TECHNICAL GROUND THE DEDUCTION OTHERWISE ALLOWABLE, CANNOT BE DISALLOWED . THE AR RELIED ON A NUMBER OF JUDGMENTS TO SAY THAT THE FILING OF AUDIT REPORT WAS DIRECTORY AND NOT MANDATORY. AS DISCUSSED ABOVE IN VIEW OF TH E AMENDMENT TO RULE-12(2) MADE BY IT (SEVENTH AMDT) RULES, 2013 W. R.E.F 01.04.2013, FILING THE AUDIT REPORT IN FORM 10CCB ELECTRONICALL Y HAS BEEN MANDATED. FURTHER AS SEEN IN THE APPELLANTS CASE NO EFFORT WA S MADE TO COMPLY WITH ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 11 THIS REQUIREMENT AND FURTHER THE MANUAL REPORT HAD ALSO NOT BEEN FILED BY 31.07.14, THE DUE DATE FOR FILING THESE REPORTS AND NOT EVEN TILL THE EXTENDED DUE DATE BY CBDT OF 31.10.2013 FOR MANDATO RY E-FILING THE AUDIT REPORT. THE DECISIONS RELIED ON BY THE APPELL ANT ARE BEFORE THE AMENDMENT MANDATING COMPULSORY E-FILING. EVEN THE M ANUAL REPORTS HAVE NOT BEEN FILED ON TIME AND NO EFFORT WAS MADE TO E-FILE THE REPORT. IN VIEW OF THE ABOVE, THE DISALLOWANCE OF DEDUCTION UNDER SECTION 80IA IS CONFIRMED. GROUND OF APPEAL IS DISMISSED. 23. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURSUED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE, WE FIND THAT THE A O HAS NOT DISPUTED THE ELIGIBILITY OF THE ASSESSEE FOR DEDUCTION U/S 80IA OF THE ACT. THE ONLY REASON FOR DISALLOWANCE OF CLAIM OF DEDUCTION U/S 80IA OF THE ACT BY THE AO IS NOT FILING OF THE AUDIT REPORT IN FORM NO. 10CCB ELECTRONICALLY A LONG WITH THE RETURN OF INCOME. IT IS ALSO NOT IN DISPUTE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME ELECTRONICALLY ON 26.09.2013 AND THEREAFTER HAS FIL ED THE REQUISITE TAX AUDIT REPORT MANUALLY IN FORM NO. 10CCB ON 27.09.2013 WEL L BEFORE THE ASSESSMENT PROCEEDINGS WERE STARTED BY ISSUANCE OF NOTICE U/S 143(2) ON 3.09.2014. THEREFORE, THE AUDIT REPORT WAS WELL BEFORE THE ASS ESSING OFFICER BEFORE HE ACTUALLY ISSUED THE FIRST SCRUTINY NOTICE. WE THER EFORE FIND THAT NON-FILING OF AUDIT REPORT ELECTRONICALLY IS ONLY A TECHNICAL BRE ACH HOWEVER AS FAR AS THE INTENT AND PURPOSE FOR FILING SUCH AUDIT REPORT, WH ICH IS TO AID AND ASSIST THE ASSESSING OFFICER TO VERIFY THE CLAIM OF THE ASSESS EE, HAS BEEN DULY COMPLIED WITH. MERELY BECAUSE OF NOT FILING OF THE AUDIT RE PORT ELECTRONICALLY THEREFORE CANNOT BE HELD AS A VALID BASIS FOR DENIAL OF CLAIM OF DEDUCTION WHICH THE ASSESSEE IS OTHERWISE ELIGIBLE FOR AND WHICH HAS NO T BEEN CHALLENGED BY THE REVENUE. SIMILAR VIEW HAS BEEN TAKEN BY THE CO-OR DINATE BENCH IN CASE OF ITO, JAIPUR VS. M/S MARATHON INDIA LTD., JAIPUR (SU PRA) WHEREIN IT WAS HELD AS UNDER:- ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 12 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 REPORT 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 WAS PASSED BY THE AO. THE HONBLE MADRAS HIGH COURT IN CASE OF CIT VS. AKS ALLOY PVT. LTD. 205 TAXMAN 11 WHILE CONSIDERIN G AN IDENTICAL ISSUE OF NOT FILING OF AUDIT REPORT IN FORM 10CCB ALONG W ITH RETURN OF INCOME BUT FILED THE SAME BEFORE THE ASSESSMENT WAS COMPLE TED 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 JUDICI AL PRECEDENTS THAT BEFORE THE ASSESSMENT IS COMPLETED, THE DECLARATION COULD BE FILED. IN FACT, THE SAID ISSUE CAME TO BE DECIDED BY THE KARN ATAKA HIGH COURT IN THE CASE IN CIT V. ACE MULTITAXES SYSTEMS (P.) LTD. [2009] 317 ITR 207 (KAR.), WHEREIN IT WAS HELD THAT WHEN A RELIEF IS S OUGHT FOR UNDER SECTION 80IB OF THE ACT, THERE IS NO OBLIGATION ON THE PART OF THE ASSESSEE TO FILE RETURN ACCOMPANIED BY THE AUDIT REPORT, THE REBY, HOLDING THAT THE SAME IS NOT MANDATORY. THEREFORE, IT IS CLEAR THAT BEFORE THE ASSESSMENT IS COMPLETED IF SUCH REPORT IS FILED, NO FAULT COUL D BE FOUND AGAINST THE ASSESSEE. THAT WAS ALSO THE VIEW OF THE DELHI HIGH COURT IN THE CASE IN CIT V. CONTIMETERS ELECTRICALS (P.) LTD. [2009] 317 ITR 249/ 178 TAXMAN 422 (DELHI), WHEREIN THE DELHI HIGH COURT, BY FOLLOWING THE JUDGEMENTS OF THE MADRAS HIGH COURT IN CIT V. A.N. ARUNACHALAM [1 994] 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 REP ORT ALONG WITH THE RETURN WAS NOT MANDATORY BUT DIRECTORY AND THAT IF THE AUDIT REPORT WAS ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 13 FILED AT ANY TIME BEFORE THE FRAMING OF THE ASSESSM ENT, THE REQUIREMENT OF THE PROVISIONS 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. SHIVANAND ELECTRONIC S [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 RICE 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 ALSO CONCURRED WITH THE SAID VIEW WHICH WAS FOLLOWED 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 S AID VIEWS CONSISTENTLY TAKEN. 9. IN THE LIGHT OF THE ABOVE, BY VIRTUE OF HIERARCH Y OF JUDGEMENTS WHICH ARE AGAINST THE REVENUE, THE SUBSTANTIAL QUESTION O F 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/- MA DE UNDER SECTION 68 OF THE ACT BY THE ASSESSING OFFICER AS UNEXPLAINED SHA RE APPLICATION MONEY, AND THE ISSUE HAS BEEN COVERED BY THE JUDGEMENT OF THE MADRAS HIGH COURT IN THE CASE IN CIT V. GOBI TEXTILES LTD. [200 7] 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). ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 14 13. IN THE LIGHT OF THE ABOVE, NO QUESTION OF LAW M UCH LESS SUBSTANTIAL QUESTION OF LAW WOULD ARISE FOR CONSIDERATION. ACCO RDINGLY, THE TAX CASE APPEAL STANDS DISMISSED. CONNECTED MISCELLANEOUS PE TITION 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, 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). 24. IN LIGHT OF ABOVE DISCUSSIONS, THE GROUND NO. 4 OF THE ASSESSEES APPEAL IS ALLOWED. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 01/08/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/08/2019 * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S KIRAN INFRA ENGINEERS LTD., JAIP UR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-4, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. ITA NO. 571/JP/2018 M/S KIRAN INFRA ENGINEERS LTD. , JAIPUR VS. ACIT, JAIPUR 15 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 571/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR