Bnazrum Agro Exports (P) Ltd., CHENNAI V. ACIT, Madurai

ITA 774/CHNY/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64291 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR SIBANDU MOHARANA
• Assessee Lawyers: T N SEETHARAMAN
• Section: 143(3); 10B; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B B ENCH C HENN AI BEFORE SHRI N.S.SAINI ACCOUNTANT MEMBER AND SHRI S.S.GODARA , JUDICIAL MEMBER .. ITA NO. 774 /MDS./ 20 12 ASSESSMENT YEAR: 200 8 - 09 M/S.BNAZRUM AGRO EXPORTS (P) LTD., RETTIAPATTI POST, DI NDIGUAL 624 006. VS. ACIT, COMPANY CIRCLE - II, MADURAI. PAN AABCB 2418 B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI T.N.SEETHARAMAN RESPONDENT BY : DR.SIBANDU MOHARANA DATE OF HEARING : 13 .0 9 .12 DATE OF PRONOUNCEMENT : 18 .0 9 .12 O R D E R PER BENCH : THIS ASSESSEE S APPEAL IS DIRECTED AGAINST THE ORDER DATED 15.03.2012 PASSED BY CIT(A), MADURAI IN CASE ITA NO.163/10 - 11 FOR ASSESSMENT YEAR 2008 - 09. THE RELEVAN T PROCEEDINGS ARE UNDER SECTION 143(3) OF INCOME TAX ACT, 1961, IN SHORT, THE ACT . ITA . 774 /MDS/ 12 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE /COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING EXPORT OF GHERKINS ; WHO E - FILED ITS RETURN ON 31.12.08 FOLLOWED BY ITR - V ON 13. 01.2019, ADMITTING INCOME OF ` 22,92,860/ - . 3 . IN THE ENCLOSURES WITH THE RETURN, THE ASSESSEE HAD CLAIMED DEDUCTION OF ` 4,91,61,059/ - UNDER SECTION 10B OF THE ACT . THE ASSESSEE HAD ALSO STATED THE OTHER INCOME OF ` 47,69,679/ - PER SCHEDUL E A IN P&L ACCOUNT. NOT ONLY THIS, IT HAS ALSO DISCLOSED AN AMOUNT OF ` 78,000/ - RECEIVED FROM SALE OF ITS VKGOY(VISHESH KRISHI GRAM UPAJ YOGANA) LICENCE ISSUED TO IT FOR PROMOTING EXPORTS. 4. IN SCRUTINY PROCEEDINGS, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD FILED RETURNS ON 31.12.2008 WHEREAS THE DUE DATE UNDER SECTION 139(1) WAS 30.09.2008 WHICH VIOLATED 10(B) 4 TH PROVISO. THE ASSESSEE S EXPLANATION WAS THAT EVEN AFTER DEDUCTION, IT HAD ADMITTED TAXABLE INCOME OF ` 22,92,860/ - (SUPRA) AND PAID TAX OF ` 7,49,705 WHEREAS PROVISO TO SEC.139(1) POSTULATED THAT ONLY THOSE ASSESSEES HAVING INCOME BELOW TAXABLE LIMIT DUE TO DEDUCTIONS UNDER SECTIONS10 A & 10 B OF THE ITA . 774 /MDS/ 12 3 ACT HAD TO FILE RETURN WITHIN THE TIME LIMIT. IN THIS MANNER, THE ASSESSEE S S UBMISSION WAS THAT THE ASSESSEE WAS NOT COVERED BY A MBIT OF SEC.10B (4 TH PROVISO) OF THE ACT. 5. THE ASSESSING OFFICER WAS NOT CONVINCED WITH ASSESSEE S JUSTIFICATION ABOVE SAID. SO, IS THE ASSESSMENT ORDER DATED 30.12.10, IT WAS HELD THAT SEC.10(B) 4 TH PROVISO WAS MANDATORY IN NATURE WHICH DENIED THE BENEFIT OF DEDUCTION TO AN ASSESSEE WHO DID NOT FILE THE RETURN ON OR BEFORE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT. FURTHER, THE ASSESSING OFFICER ALSO CONCLUDED THAT VKGUY(SUPRA) SCHEME COULD BE CLAIMED BY THE ASSESSEE ONLY AFTER GIVING UP THE CL AIM UNDER SECTION 10B, WHEREAS THE ASSESSEE HAD RAISED THE CLAIM BY PRETENDING THAT IT WAS MISSED OUT. SO, THE ASSESSEE S CONDUCT WAS TREATED AS VERY UNNATURAL, WHICH AMOUNTED TO CONCEALMENT. THEREFORE, THE ASSESSING OFFICER ADDED AN AMOUNT OF ` 4,91,61,059/ - ( DISALLOWED DEDUCTION UNDER SECTION 10B) IN ASSESSEE S RETURNED INCOME OF ` 22,92,864/ - (SUPRA). ITA . 774 /MDS/ 12 4 6. THE ASSESSEE CARRIED THE DISALLOWANCE IN APPE AL BEFORE CIT(A) WHEREIN THE ASSE SSING OFFICER S FINDINGS STAND CONFIRMED VIDE IMPUGNED ORDER IN QUESTION BEFORE US. IT HAS BEEN HELD AS UNDER BY CIT(A): 5.13. ASSESSEE HAS NOT ESTABLISHED ANY VALID REASON FOR BELATED FILING OF RETURN OF INCOME. ASSESSEE S RELIANCE MERELY ON DECISION S OF CERTAIN CASE LAWS CANNOT HELP IN CASE/CAUSE SINCE, ASSESSEE S CASE CAN BE CLEARLY DISTINGUISHED ON FACTS FROM THOSE CASES. ALSO, ASSESSEE HAD NOT BROUGHT ANY EVIDENCE TO ESTABLISH GENUINE HARDSHIP FACED BY IT WHICH PREVENTED ITS FILING OF RETURN OF INCOME IN TIME. 5.14. ONE CANNOT BE ALLOWED TO TAKE ADVANTAGE OF HIS OWN WRONG. EVEN WHEN IT PERTAINED TO ASSESSEE S COMPLIANCE WITH TDS PRO VISIONS, IT HAD NOT TOTALLY COMPLIED WIT THE SAME AS EVIDENCED BY THE REMARK IN COLUMN NO.27 OF THE FORM 3CD R EPORT. RIGHTS AND OBLIGATIONS GO TOGETHER. IN ASSESSEE S CASE, EVEN DURING APPELLATE PROCEEDINGS, ASSESSEE DID NOT PRODUCE ANY VALID EVIDENCE/REASON FOR BELATED FILING OF RETURN (TO CLAIM ITS RIGHT UNDER SECTION 10B OF THE ACT). THEREFORE, I DO ITA . 774 /MDS/ 12 5 NOT FIND A NY REASON TO INTERFERE WITH THE ORDER OF THE ASSESSING OFFICER. 6. IN THE RESULT, THE APPEAL IS DISMISSED. 7. THE AUTHORISED REPRESENTATIVE F OR ASSESSEE HAS SUBMITTED BEFORE US THAT THE ASSESSEE IS A 100% EXPORT ORIENTED UNDERTAKING WHICH HAS BEEN SUCCES SFULLY AVAI LING DEDUCTION UNDER SECTION.10B OF THE ACT SINCE ASSESSMENT YEAR 1999 - 2000 AND PRESENT ASSESSMENT YEAR IS THE LAST YEAR OF THE S AME . FURTHER, IT HAS ALSO BEEN CONTENDED THAT PER CIT(A), THERE HAS BEEN DELAY OF ONE MONTH IN FILING RETURN ON PART OF THE ASSESSEE WHICH WAS ATTR IBUTABLE TO ASSESSEE S DIFFICULTY TO UPLOAD THE RETURN ELECTRONICALLY UNDER THE SCHEME OF E - FILING WHICH WAS A BONAFIDE REASON AND HENCE CONDONABLE IN VIEW OF VARIOUS CASE LAWS REPORTED AS (2010) 133 T TJ (DELHI) 580 ACIT VS. DHIR GLOBAL INDUSTRIAL (P) LTD., CHENNAI ITAT D BENCH ORDER DATED 30.06.2010 IN CASE OF ACIT VS. M/S.POLYHOSE INDIA PVT. LTD., IN ITA NO.122/MDS/2011 & (2012) 52 SOT 437 (HYDERABAD) IN CASE OF ITO VS. S.VENKATAIAH . I N THE LIGHT T HEREOF, HE PRAYED FOR ACCEPTANCE OF THE APPEAL. ITA . 774 /MDS/ 12 6 8. ON THE OTHER HAND, THE REVENUE HAS FORCEFULLY ARGUED THAT IN CASES CITED BY ASSESSEE, THE FACTS A RE DISTINGUISHABLE . I N ASSESSEE S CASE THIS IS 3 RD YEAR OF FILING RETURN AND HIS AUDIT REPORT IS OF DA TED 29.09.2008 WHEREAS THE RETURN WAS FILED ON 30.10.08(PER CIT(A) S ORDER). THEREFORE, D.R S PLEAS IS TH A T THE ASSESSEE S PARTICULARS WERE READY WELL BEFORE THE DUE DATE OF FILING RETURN I.E. 30.09.08. IN ADDITION, HE STRONGLY SUPPORTED THE CIT(A) S O RDER AS WELL AS FINDINGS CONTAINED THEREIN AND PRAYED FOR REJECTION OF THE APPEAL IN VIEW OF CASE LAW (1999) 103 TAXMAN 623 (SC) ORISSA STATE WAREHOUSING CORPORATION VS. CIT. 9. WE HAVE HEARD SUBMISSIONS MADE BY BOTH PARTIES AND ALSO GONE THROUGH THE REL EVANT FINDINGS, PAPER BOOK AND CASE LAW CITED. IT TRANSPIRES THAT THE ASSESSEE BEING AN EOU, IS AVAILING TAX CONCESSION UNDER SECTION 10B OF THE ACT SINCE ASSESSMENT YEAR 1999 - 2000 I.E. PAST NINE CONSECUTIVE ASSESSMENT YEARS . I N THIS REGARD, WE DEEM I T APPROPRIATE TO REPRODUCE THE CHART PLACED ON RECORD BY THE ASSESSEE WHICH READS AS UNDER: - ITA . 774 /MDS/ 12 7 BNAZRUM AGRO EXPORTS (P) LTD. DETAILS OF DEDUCTION UNDER SECTION.10B OF THE ACT, 1961 A.Y. DEDUCTION CLAIMED IN ` DEDUCTION ALLOWED IN ` DAT E OF ASSESSMENT ORDER 1999 - 00 3,22,423 3,22,423 -- 2000 - 01 24,49,182 24,49,182 - 2001 - 02 29,20,513 29,20,513 19.03.2003 2002 - 03 67,34,029 67,34,029 19.03.2003 2003 - 04 60,48,035 60,48,035 27.01.2006* 2004 - 05 20,87,071 20,87,071 --- 2005 - 06 56,86,502 56,86,502 --- 2006 - 07 86,97,005 86,97,005 2007 - 08 3,14,32,640 3,14,32,640 31.12.2009* 2008 - 09 4,91,61,059 NIL 30.12.2009* * ASSESSMENT ORDERS UNDER SECTION 143(3) AND REST ASSESSMENT YEARS COMPLETED UNDER SECTION.143(1)(A). TAKING CUE FROM THE SAME AND IN THE ABSENCE OF ANY DENIAL BY REVENUE, WE SAFELY ASSUME THAT THE IMPUGNED ASSESSMENT YEAR IS THE L AST YEAR OF ASSESSEE S CLAIM UNDER SECTION 10B WHICH HAS BEEN DECLINED BY ASSESSING OFFICER AS WELL AS CIT(A) ONLY ON THE GROUND THAT THERE HAS BEEN DE LAY ON PART OF THE ASSESSEE IN FILING THE RETURN UNDER SECTION 139(1). 10. COMING TO DELAY PART IN FILING OF RETURN BY THE ASSESSEE, WE FIND THAT PER ASSESSING OFFICER S ORDER, THE RETURN WAS FILED ON 31.12.08 WHEREAS THE CIT(A) IN PARA NO.5.2 TAKE S THE DATE OF FILING RETURN AS 30.10.08. I N THE ABSENCE OF ANY ERROR POINTED IN CIT(A) S ORDER, WE ALSO TAKE THE DATE OF FILING RETURN AS 30.10.08 ITA . 774 /MDS/ 12 8 I.E. AFTER ONE MONTH OF DUE DATE I.E. 30.09.08. THE ASSESSEE S EXPLANATION IN SUPPORT IS THAT THERE WAS SY STEM S FAILURE IN UPLOADING ITS ELECTRONIC RETURN . WE FIND FROM CASE LAW OF DHIR GLOBAL (SUPRA) THAT THE PROVISION OF DUE DATE U NDER SECTION 139(1) HAS ITSELF B EEN HELD TO BE A DIRECTORY PROVISION INSTEAD OF MANDATORY. THE OTHER DECISIONS OF CHENNAI AND HYDERABAD ITAT BEN C HES ALSO FOLLOW THE SAME LEGAL TENOR . THEREFORE, BY PLACING RELIANCE IN THE SAME, WE ALSO HOLD THAT SINCE THE OPERATION OF SECTION 139(1) OF THE ACT IS DIRECTORY IN NATURE, THEREFORE, THE ASSESSEE S PLEA OF SYSTEM FAILURE EXPLAININ G DELAY OF ONE MONTH IN FILING RETURN DESERVES TO BE ACCEPTED. AT THE SAME TIME, WE HAVE PERUSED HON BLE APEX COURT JUDGEMENT CITED BY D.R(SUPRA). WE FIND THAT IN THE SAID CASE, THE ISSUE WAS ENTIRELY DIFFERENT I.E. ALLOWABILITY OF EXEMPT ION IN C ASE UNDER SECTION 10(29) OF THE INCOME TAX ACT IN PRINCIPLE AND NOT ALIKE THE INSTANT CASE WHERE THE ASSESSEE HAS BEEN SUCCESSFULLY GETTING DEDUCTION UNDER SECTION 10B OF THE ACT FOR THE LAST NINE CONSECUTIVE ASSESSMENT YEARS (SUPRA). 11. AFTER GIVING O UR THOUGHTFUL CONSIDERATION TO THE CASE AND MORE PARTICULARLY, IN VIEW OF THE FACT THAT THE SUBSTANTIVE GROUND FOR REJECTING ASSESSEE S DEDUCTION CLAIM IS ONLY THAT OF DELAY OF ITA . 774 /MDS/ 12 9 ONE MONTH(SUPRA) IN FILING RETURN , WE ARE OF THE OPINION THAT THE ASSESSEE HA S SUCCESSFULLY EXPLAINED THE DELAY . ACCORDINGLY WE HOLD THAT THE ASSESSEE HAS FILED A VALID RETURN UNDER SECTION 139(1) OF THE ACT . ACCORDINGLY, THE ASSESSEE IS ALSO HELD ENTITLED FOR GETT ING THE DEDUCTION UNDER SECTION 10B OF THE ACT. 12. HENCE, WE A LLOW THE APPEAL. ORDER P RONOUNCED ON TUESDAY , THE 18 TH SEPTEMBER , 2012 AT CHENNAI SD/ - SD/ - (N.S.SAINI) ( S.S.GODARA ) ACCOUNTNT MEMBER JUDICIAL MEMBER CHENNAI, DATED 18 TH SEPTEMBER , 2012 . K S SUNDA RAM COPY TO: ASSESSEE / AO / CIT (A) / CIT / D.R. / GUARD FILE ITA . 774 /MDS/ 12 10