HUSSEIN ISMAIL DAWOODANI, MUMBAI V. ACIT CPC BANGALORE, MUMBAI

ITA 7466/MUM/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 8775 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2017
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 02-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 15-12-2014
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN
• Assessee Lawyers: SYED NADEEM AHMED LASANI
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.7466/M/2014 (AY 2011 - 2012) ITA NO.7467/M/2014 (AY 2012 - 2013) SHRI HUSSEIN ISMAIL DAWOODANI, 161, BARA IMAM ROAD, NULL BAZAR, MUMBAI 400 003. / VS. ACIT, CPC, BANGALORE. ./ PAN : AAHPD7242E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI SYED NADEEM AHMED LASANI / RESPONDENT BY : SHRI M.C. OMI NINGSHEN, DR / DATE OF HEARING : 09 .01.2017 / DATE OF PRONOUNCEMENT : 18 .01.2017 / O R D E R PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE INVOLVING THE ASSESSMENT YEARS 2011 - 12 AND 2012 - 13. SINCE, THE ISSUES RAISED IN THESE APPEALS ARE IDENTICAL / INTER - CONNECTED, THEREFORE, FOR THE SAKE OF CONVENIENCE, THEY ARE CLUB BED, HEARD COMBINEDLY AND DISPOSED OF IN THIS CONSOLIDATED ORDER. APPEAL WISE ADJUDICATION IS GIVEN IN THE FOLLOWING PARAS OF THIS ORDER. 2. THE SOLITARY ISSUE INVOLVED IN BOTH THE APPEALS RELATES TO THE ALLOWABILITY OF DEDUCTION U/S 80IB OF THE ACT WHEN THE RETURN OF INCOME IS NOT FILED WITHIN THE DUE DATE PROVIDED U/S 139(1) OF THE ACT AND WHEN THE RETURN IS ACTUALLY FILED BEFORE THE TIME PROVIDED U/S 139(4) OF THE ACT. THE PROVISIONS OF SECTION 80AC ARE RELIED ON BY THE REVENUE. 3. BEFORE US, AT THE OU TSET, LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE NOW STANDS COVERED IN FAVOUR OF THE ASSESSEE CONSIDERING THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF TRUSTEES OF TULSIDAS GOPALJI 2 CHARITABLE & CHALESHWAR TEMPLE TRUST (207 ITR 368) (BOM.). IT WAS DEMONSTRATED BEFORE US THAT THE SAID ISSUE IS ACTUALLY COVERED BY THE SAID JUDGMENT AND WAS DECIDED IN FAVOUR OF THE ASSESSEE. THE SAME WAS REPEATEDLY RELIED UPON BY THE TRIBUNAL ALSO WHILE ADJUDICATING THE IDENTICAL ISSUES IN VAR IOUS DECISIONS. BRINGING OUR ATTENTION TO AN ORDER OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S. UMA DEVELOPERS IN ITA NO.7718/M/2014 (AY 2012 - 13), DATED 10.8.2016, LD COUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE PARA 2.1 AND PARA 3.4.2 OF THE SAID TRIBUN ALS ORDER TO DEMONSTRATE THE IDENTICAL NATURE OF THE ISSUE AND REQUIREMENT OF DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED DECISION OF THE TRIBUNAL IN THE CASE OF UMA DEVELOPERS (SUPRA). ON PERUSAL OF THE SAID TRIBUNALS ORDER, WE FIND, PARA 3.4.2 IS RELEVANT TO THE ISSUE UNDER CONSIDERATION. CONSIDERING THE IMPORTANCE OF THE SAID PARA AND FOR THE SAKE OF COMPLETENESS OF THIS ORDER, THE SAID PARA 3 .4.2 IS EXTRACTED AS UNDER: - 3.4.2 ON AN APPRECIATION OF THE FINDING RENDERED BY THE LD CIT (A) WHILE ALLOWING THE ASSESSEES APPEAL (SUPRA), WE OBSERVE THAT THE LD CIT (A) HAS CONSIDERED AT LENGTH THE ISSUE OF WHETHER THE AOS DISALLOWANCE OF THE ASSESSE ES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR THE REASON THAT THE RETURN OF INCOME FOR AY 2012 - 13 WAS FILED BEYOND THE DUE DATE STIPULATED UNDER SECTION 139(1) OF THE ACT (BUT WAS FILED WITHIN THE TIME ALLOWED UNDE R SECTION 139(4) OF THE AC T), O N VIEW OF THE PROVISIONS OF SECTION 80AC OF THE ACT IS BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 143(1) OF THE ACT. WE CONCUR WITH THE VIEW OF THE LD CIT (A) THAT AS PER THE RATIO OF THE DECISIONS OF THE HONBLE BOMBAY HIGH COURT IN THE TRUSTEES OF TULSIDAS GOPALJI CHARITABLE & CHALESWAR TEMPLE TRUST (SUPRA) AND OF THE COORDINATE BENCH IN THE CASE OF YASH DEVELOPERS (SUPRA), EVEN IN CASES WHERE THE RETURN OF INCOME IS FILED BEYOND THE DUE DATE STIPULATED UNDER SECTION 139(1) OF THE ACT, THE DEDUCT ION SHOULD NOT BE DISALLOWED UNDER SECTION 143(1) OF THE ACT MERELY IN VIEW OF THE PROVISIONS OF SECTION 80AC OF THE ACT. WE ALSO FIND ON A PERUSAL F THE PROVISIONS OF SECTION 143(1) OF THE ACT, THAT THE AOS ACTION IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, SINCE THE RETURN OF INCOME WAS FILED BEYOND THE PERIOD STIPULATED UNDER SECTION 139(1) OF THE ACT IN VIEW OF THE PROVISIONS OF SECTION 80AC, IS BEYOND THE SCOPE OF SECTION 143(1) SINCE THERE IS NEITHER AN ARITH METICAL ERROR NOR AN INCORRECT CLAIM APPARENT FROM THE RECORD. IN THIS VIEW OF THE MATER, WE UPHOLD THE FINDING OF THE LEARNED CIT (A) THAT THE AO WAS NOT JUSTIFIED IN DISALLOWING THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 80IB(10) OF THE ACT AND HI S DIRECTION TO THE AO TO DELETE THE DISALLOWANCE THEREOF, MADE UNDER SECTION 143(1)(A) / 143(1) OF THE ACT. CONSEQUENTLY, REVENUES GROUNDS OF APPEAL ARE DISMISSED. 5. FROM THE ABOVE, THE TRIBUNAL HAS RELIED ON THE CITED JUDGMENT OF THE HONBLE JURISDICT IONAL HIGH COURT (SUPRA) AND HELD WHERE THE RETURN OF INCOME IS FILED BEYOND THE DUE DATE STIPULATED U/S 139(1) OF THE ACT, THE DEDUCTION SHOULD NOT BE DISALLOWED 3 U/S 143(1) MERELY IN VIEW OF THE PROVISIONS OF SECTION 80AC OF THE ACT . SUCH DISALLOWANCE MADE BY THE AO ARE NOT PERMITTED UNDER THE SCOPE OF SECTION 143(1)(A) OF THE ACT AS THE SAID ISSUE CONSTITUTES DEBATABLE ONE . ACCORDINGLY, RELYING ON THE CITED JUDGMENT OF THE HONBLE JURISDICTIONL HIGH COURT (SUPRA) AND THE DECISION OF THE TRIBUNAL IN THE CASE OF UMA DEVELOPERS (SUPRA), GROUNDS RAISED BY THE ASSESSEE IN BOTH THE APPEALS ARE ALLOWED. 6. IN THE RESULT, BOTH THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 8 T H JANUARY, 2017. S D / - S D / - ( AMARJIT SINGH ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 18.01.2017 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI