Birahi Ganga Hydro Power Ltd., New Delhi V. ITO, New Delhi

ITA 6396/DEL/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3365 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 24-04-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 15-12-2016
• Court: TRIBUNAL
• Department Lawyers: BEDOBANI CHAUDARY
• Assessee Lawyers: RA VI BHATIA
• Keywords: Depreciation; Principle of natural justice; Reasonable cause
• Section: 143(3); 131

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , DELHI BENCH ES, NEW DELHI - [SMC] BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER, ITA NO. 6396 /DEL /20 1 6 [ ASSESSMENT YEAR : 20 12 - 201 3 ] BIRAHI GANGA HYDRO POWER LTD VS. THE I.T .O FLAT 403, 32 - 33, KUSHAL BAZAR WARD - 5(1) NEHRU PLACE, NEW DELHI NEW DELHI P AN : A A ACB 5242 L [APPELLANT] [RESPONDENT] DATE OF HEARING : 2 6 . 0 4 . 201 7 DATE OF PRONOUNCEMENT : 27 . 0 4 .201 7 APPELLANT BY : SHRI RAVI BHATIA RESPONDENT BY : MS. BEDOBANI CHAUDARY, SR. DR ORDER THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A) - 35 , NEW DELHI VIDE ORDER DATED 0 6 / 1 0 /2 01 6 FOR A. Y . 2012 - 13 . 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. THAT THE ORDER DATED 06.10.2016 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 35, NEW DELHI AND THE ORDER DATED 25.03.2015 PASSED BY THE INCOME TAX OFFICER, WARD - 5(1), NEW DELHI U/S 143(3) ARE BOTH BAD AND AGAINST THE FAC TS OF THE CASE. ITA NO. 3153/DEL/2014 2 2. THAT THE LEARNED CIT (APPEALS) HAS GREATLY ERRED IN LAW AND ON FACTS OF THE CASE IN: - A) IN TREATING THE RETURN FILED BY THE ASSESSEE ON 30.09.2012 AS ON 01.10.2012 WHEN THE ACKNOWLEDGEMENT RECEIPT AVAILABLE WITH THE ASSESSEE WAS FOR 30 TH SEPT'2012 AND IT WAS CLEARLY EXPLAINED TO ITO & CIT (A) THAT THE RETURN HAS BEEN UPLOADED AT 11.55 P.M. ON 30.09.2012 AND TREATING THE SAME AS FILED ON 01.10.2012 IS TOTALLY INCORRECT AND UNWARRANTED BY LAW. B) THAT THE ABOVE MATTER WAS REFERRED TO DIT SYSTEM BANGALORE WHEREIN IT HAS BEEN MENTIONED THAT THE RETURN H AS BEEN UPLOADED IN THEIR SYSTEM ON 01.10.2012.AT 00.00.20. THE DELAY OF 20 SECONDS CAN BE DUE TO TECHNICAL REASONS, AS THERE IS LAST MINUTE RUSH OF RETURNS BEING FILED AND SYSTEM IS HIGHLY OVERLOADEN ACCEPTING THE RETURNS. THE RECEIPT IS ALSO GENERATED AFTER FEW MINUTES AND NOT AT THE SAME MOMENT. C) IN NOT ACCEPTING THE PLEA OF THE ASSESSEE AND THE CASE LAWS FURNISHED AND PROCEEDING TO REJECT THE CL AIM OF THE ASSESSEE WITHOUT GIVING THE BENEFIT OF SECTION 80IA. C) IN NOT ALLOWING THE CLAIM OF THE DEPRECIATION OF RS. 5,50,240/ - WHEN DETAILED SUBMISSIONS WERE SUBMITTED TO THE ITO/CIT(APPEALS) REGARDING PUTTING THE FIXED ASSETS TO USE AND COMMISSIONING OF THE PROJECT. 3. THAT THE ABOVE ADDITIONS MADE BY THE LD. ASSES SING OFFICER & SUSTAINED BY CIT (APPEALS) ARE UNJUST, ARBITRARY AND OUTSIDE THE SCOPE OF PRINCIPLES OF NATURAL JUSTICE AND THE ADDITIONS HAVE BEEN MADE BY THE ITO JUST FOR SAKE OF MAKING SOME ADDITIONS WHICH HAVE BEEN WRONGLY SUSTAINED BY CIT (APPEALS). ITA NO. 3153/DEL/2014 3 4 . THAT THE APPELLANT SEEKS PERMISSION TO PUT FORTH DETAILED ARGUMENTS ON LAW AND ON FACTS OF THE CASE AND TO ADD/DELETE AMEND GROUNDS OF APPEAL AT THE TIME OF HEARING OF THE CASE. 3. BRIEFLY STATED, THE FACTS OF THE CASE, AS EMANATING FROM THE ORDER OF TH E AO ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS , THE ASSESSEE HAS SUBMITTED A COPY OF ACKNOWLEDGEMENT FOR THE Y EAR UNDER CONSIDERATION SHOWING ACK. NO. 507934051011012 DATED 30 - 09 - 2012 WHEREAS E - FILING PORTAL IS SHOWING THE DATE OF FILING RETURN AS 01 - 10 - 2012. A COPY OF RETURN DOWNLOADED FROM E - FILING PORTAL WAS ALSO GIVEN TO THE ASSESSEE. IT IS ALSO SEEN THAT THE E - FILING ACK. NO. AS SHOWN IN E - FILING PORTAL AS WELL AS CLAIMED BY THE AS SESSEE IS SAME AS 507934051011012. SINCE THE LAST 06 DIGITS OF ACKNOWLEDGEMENT REPRESENTING THE DATE OF FILING OF RETURN, WHICH IS 01 . 10 .20 12 IS CLEARLY SHOWING THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 01 - 10 - 2012, I.E AFTER THE DUE DATE OF FILING RETURN U/S 139(1) OF THE ACT, THEREFORE , ASSESSEE VIDE LETTER DATED 2 7/29 - 01 - 2015 WAS ASKED TO SHOW CAUSE AS TO WHY DEDUCTION CLAIMED U/S 80IA AMOUNTING TO RS. 34,34,128/ - SHOULD NOT BE DISALLOWED. 4. THE A.O OBSERVED THAT I N RESPONSE TO THE SAME , THE ASSESSEE CLAIMED VIDE LETTER DATED 21 - 02 - 2015 THAT THE DATE SHOWN IN THE RETURN DOWNLOADED FROM E - FILING PORTAL IS NOT CORRECT AS IT CLAIMED THAT THE RETURN WHICH THE ASSESSEE UPLOADED HAS DIFFERENT FIGURES AND FILED ON 30 - 09 - 2012 AT 11.55 ITA NO. 3153/DEL/2014 4 P.M ONLY. I T IS TRUE THAT THERE IS DIFFERENCE IN DATA IN RETURN DOWNLOADED FROM E - FILING PORTAL AND COPY PROVIDED BY THE ASSESSE E BUT THE ASSESSEE DID NOT FILE ANY EVIDENCE ABOUT THE AUTHENTICITY OF THE COPY OF RETURN PROVIDED BY IT. EVEN ASSESSEE WAS FAILED TO FORWA RD THE EMAIL RECEIVED BY IT IMMEDIATELY AFTER FILING OF RETURN DESPITE ASKED FOR TO PROVIDE. MOREOVER, THE MATTER WAS REFERRED TO DIT (SYSTEMS) WHO VIDE LETTER DATED 04 - 03 - 2015 CLARIFIED THAT THE RETURN OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION WAS FILED ON 01 - 10 - 2012 VIDE ACKNOWLEDGEMENT NO. 507934051011012. THE POSITION OF DATE OF FILING AS CONFIRMED BY DIT(SYSTEMS) WAS CONFRONTED TO THE ASSESSEE VIDE ORDER SHEET ENTRY DATED 16 - 03 - 2015 BUT ASSESSEE STRICT TO ITS EARLIER REPLY. EVEN, SH SUSHIL KUMAR KEJRIWAL, DIRECTOR OF THE COMPANY DURING RECORDING OF STATEMENT U/S 131 OF THE ACT ST UCK TO THE REPLY FILED BY THE ASSESSEE EARLIER. 5. THE A.O FURTHER OBSERVED THAT F OR ALLOWING DEDUCTION U/S 80IA OF THE ACT, ONE OF THE CONDITIONS IS THAT THE ASSESSEE HA S TO FILE ITS RETURN OF INCOME WITH IN DUE DATE AS PRESCRIBED U/S 139(1) OF THE ACT. THE DUE DATE FOR FILING RETURN OF INCOME U/S 139(1) OF THE ACT WAS 30 - 09 - 2012 FOR THE YEAR UNDER CONSIDERATION. BUT AS CERTIFIED BY DIT(SYSTEMS) THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 01 - 10 - 2012, I.E AFTER THE DUE DATE, THE ASSESSEE HAS NOT FULFILLED ALL THE CONDITIONS FOR CLAIMING DEDUCTION U/S 80IA OF THE ACT. MOREOVER ASSESSEE ALSO FAILED TO FILE ANY EVIDENCE TO PROVE THAT IT HAD FILED RETURN OF INCOME ON 30 - 09 - 2 012 EXCEPT A COPY OF ACK., AUTHENTICITY OF WHICH WAS NOT PROVED IN VIEW OF THE FACTS DISCUSSED . NOT ITA NO. 3153/DEL/2014 5 SATISFIED WITH THE REPLY TENDERED BY THE ASSESSEE, THE A.O DISALLOWED THE DEDUCTION CLAIMED U/S 80IA OF THE ACT AMOUNTING TO RS. 34,34,128/ - . 6. AGGRIEVED, THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A) WHO CONFIRMED THE ACTION OF THE AO. 7. I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE AVAILABLE ON RECORD. IT WAS POINTED OUT BY THE LD. COUNSEL FOR THE ASSESSEE THAT E - RETURN FOR A.Y 2012 - 12 WAS, IN FACT, FILED ON 30.09.2012 AND THE SAME HAS BEEN DIGITALLY SIGNED ON THE SAME DATE I.E. 30.09.2012. THERE IS NO DISPUTE TO THIS EXTENT AND THE LD. DR HAS NOT CONTROVERTED THE SAID FACTS. WHEREAS THE E - FILING PORTAL HAS SHOWN RETURN TO BE FILED ON 01.10.2012 AT 00:00:20 HRS, WHICH IS ONLY 20 SECONDS LATE. NOW THE QUESTION ARISING, WHICH HAS TO BE ANSWERED BY ME , IS THAT THE RETURN SO UPLOADED BY 20 SECONDS LATE BY THE INCOME - TAX DEPARTMENT WILL BE TREATED AS VALID RETURN TO HAVE BEEN FILED ON 30.09.2012, WHEN THE FACTS ON RECORD ARE THAT THE ASSESSEE HAS FILED E - RETURN ON 30.09.2012 AND DIGITAL SIGNATURE WAS ALSO PUT ON 30.09.2012. 8. IT WAS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE AND WAS ALSO SUBMITTED BEFORE THE LOWER AUTHORITIES TH A T DUE TO LAST MINUTE RUSH, UPLOADING MIGHT HAVE CAUSED THE DELAY BY 20 SECONDS WHICH IS BEYOND THE CONTROL OF THE ASSESSEE AND THIS IS A REASONABLE CAUSE DUE TO A TECHNICAL ITA NO. 3153/DEL/2014 6 PROBLEM WHICH CAN BE CONDONED. I AM ALSO CONVINCED WITH THE ARGUMENTS MADE BY THE LD. AR AND ON THE BASIS OF FACTS ON RECORD, IT IS TREATED AS TECHNICAL DELAY FOR WHICH THE ASSESSEE CANNOT BE PENALISED ESPECI ALLY WHEN THERE IS A 20 SECOND DELAY FOR WHICH THE ASSESSEE HAS ASSIGNED SUFFICIENT REASONS AND THE ASSESSEE, AS PER HIS RECORD HAS FILED RETURN WITHIN TIME ON 30.09.2012. 9. RELIANCE WAS PLACED ON THE DECISION OF THE ITAT BANGALORE BENCH IN THE CASE OF M/S VANSHEE BUILDERS AND DEVELOPERS P. LTD. VS. ITO IN ITA NO. 386/BANG/2012 FOR A.Y 2008 - 09 VIDE ORDER DATED 07.12.2012 APPEARING AT PAGES 13 TO 26 AND RELEVANT PAGE 15 IS REPRODUCED HEREINBELOW: THAT IT IS CLEAR, THEREFORE, THAT THE PROVISIONS CONTAI NED IN SECTION 80AC AS REGARDS THE TIME LIMIT FOR FILING THE RETURN OF INCOME IS DIRECTORY BUT NOT MANDATORY IN VIEW OF THE AFORESAID PROVISIONS OF THE ACT PERMITTING RELAXATION OF THE TIME LIMIT FOR FILING THE RETURN. IT IS TO BE DISTINCTLY UNDERSTOOD TH AT SUCH RELAXATION IS STATUTORY IN NATURE [AS IT II ALLOWED BY THE STATUTE ITSELF] AND NOT ADMINISTRATIVE IN CHARACTER. 10. IT WAS ARGUED BY THE LD. AR THAT THE ASSESSEE IS LEGALLY ENTITLED FOR DEDUCTION AND NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT THE ASSESSEE IS NOT LEGALLY ENTITLED FOR SUCH DEDUCTION. IN MY CONSIDERED OPINION, THE CLAIM OF THE ASSESSEE CANNOT BE DENIED ON THE BASIS OF ITA NO. 3153/DEL/2014 7 TECHNICALITIES WHEN THE ASSESSEE IS OTHERWISE ENTITLED TO DEDUCTION. ACCORDINGLY, UNDER THE FACTS AND CIRCUMSTA NCES OF THE PRESENT CASE, AS DECIDED HEREINABOVE, THE RETURN FILED BY THE ASSESSEE IS TREATED TO HAVE BEEN FILED IN TIME AND CLAIM OF THE ASSESSEE IS DIRECTED TO BE ALLOWED. GROUNDS RAISED BY THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, THE APPEAL OF TH E ASSESSEE IS ALLOWED. THE ORDER IS PR ON OUNCED IN THE OPEN COURT ON 27 . 0 4 .201 7 . SD/ - [B.P. JAIN] ACCOUNTANT MEMBER DATED: 27 TH APRIL , 201 7 VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI