AQUASUB ENGINEERING , COIMBATORE V. DCIT ,CENTRALIZED PROCESSINF CENTER, BENGALURU

ITA 78/CHNY/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 9549 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2017-2018
• Appeal Filed On: 24-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 139; 80IB; 80IA; 80IC; 80IC

Judgement Text

आयकर अपीलीय अिधकरण, ‘ए’ ᭠यायपीठ,चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, CHENNAI Įी महावीर ͧसंह, उपाÚय¢ एवं Įी मनोज क ु मार अĒवाल, लेखा सदèय के सम¢ BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENTAND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER आयकरअपीलसं./ITA No.: 78/CHNY/2021 िनधाᭅरण वषᭅ/Assessment Year: 2017 - 18 Aquasub Engineering, Post Box 5803, Tudiyalur Post, Coimbatore – 641 034 PAN: AADFA 8028P vs. The DCIT, Non-Corporate Circle-4, Coimbatore. (अपीलाथᱮ/Appellant) (ᮧ᭜यथᱮ/Respondent) अपीलाथᱮ कᳱ ओर से/Appellant by : Shri G. Suresh, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri Guru Bashyam, CIT स ु नवाई कȧ तारȣख/Date of Hearing : 27.09.2022 घोषणा कȧ तारȣख/Date of Pronouncement : 30.09.2022 आदेश /O R D E R PER MAHAVIR SINGH, VICE PRESIDENT: This appeal by the assessee is arising out of the order of Commissioner of Income Tax (Appeals)-1, Coimbatore, in Appeal No.CIT(A), Coimbatore-3/10077/2019-20 dated 07.02.2020. The return of income was processed and intimation u/s.143(1) of the Income Tax Act, 1961 (hereinafter the ‘Act’) was issued by the DCIT, CPC, Bengaluru for the assessment year 2017-18 vide order dated 25.03.2019. 2 ITA No.78/Chny/2021 2. At the outset it is noticed that this appeal is time barred by 352 days as the order of CIT(A) was received by assessee on 07.02.2020 and appeal was to be filed before Tribunal on or before 08.04.2020, instead the appeal was filed by assessee only on 25.03.2020 thereby delay of 352 days. The Ld.counsel for the assessee stated that the delay was due to the spread of Covid-19 pandemic and nationwide lockdown imposed by the Government from 25.03.2020. The Hon’ble Supreme Court in Miscellaneous Application No.665 of 2021 vide order dated 23.03.2020 has given directions that the delay are to be condoned during this period 15.03.2020 to 14.03.2021 and they have condoned the delay up to 28.02.2022 in Miscellaneous Application No.21 of 2022 vide order dated 10.01.2022. In term of the directions of Hon’ble Supreme Court, we condone the delay in filing of this appeal by assessee and admit the appeal for adjudication. 3. The only issue in this appeal of assessee is as regards to the order of CIT(A) confirming the action of the AO, CPC, Bengaluru in disallowing the claim of deduction u/s.80IA of the Act for the reason that Form No.10CCB has not been filed along with the original return of income within the due date of filing of return of income. 3 ITA No.78/Chny/2021 4. We have heard rival contentions and gone through facts and circumstances of the case. Brief facts are that the assessee filed original return of income vide acknowledgement No.280954121311017 dated 31.10.2017 u/s.139(1) of the Act. But, this return was not accompanied by audit report in Form No.10CCB but made claim of deduction u/s.80IA of the Act. The CPC, Bengaluru issued intimation u/s.143(1) of the Act, whereby the claim of deduction u/s.80IA of the Act was denied amounting to Rs.20,70,31,480/- vide intimation dated 14.05.2018. Subsequently, the assessee filed revised return of income vide acknowledgment No.627323361280518 dated 28.05.2018 and claimed deduction u/s.80IA of the Act, as claimed originally and also filed audit report in Form no.10CCB. This return of income was also processed by CPC, Income Tax Department, Bengaluru and issued intimation on 25.03.2019 again disallowing the claim of deduction, which is impugned intimation u/s.143(1) of the Act. This return was revised by the assessee within the time limit available u/s.139(5) of the Act. The Department processed the return of income i.e., revised return filed on 28.05.2018, only on 23.05.2019 when the audit report in Form No.10CCB was available with the Department. It means that the Department has disallowed the claim of deduction even though the assessee was entitled for claim of deduction. This 4 ITA No.78/Chny/2021 issue has been covered in favour of assessee and against the Revenue by the decision of the Co-ordinate Bench of the Tribunal in the case of ACIT vs. Shanthi Gears Ltd., in ITA No.3068/CHNY/2017, order dated 04.03.2022, wherein the Tribunal considered various case laws considered this issue vide para’s 6 to 8 as under:- 6. On the other hand, the learned Counsel for the Assessee however read out the relevant provision of Section 80AC of the Act and the relevant reads as under: “80AC : Where in computing the total income of an Assessee of the previous year relevant to the Assessment Year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80IA or section 80IAB or section 80IB or section 80IC (or section 80ID or section 80IE), no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139.” The learned Counsel for the Assessee stated that the precondition of Section 80C of the Act is furnished on the return of income of the Assessee on or before the due date specified under sub-section 1 of Section 139 of the Act. The learned Counsel for the Assessee relied upon the various decisions which are as under: [1] ACIT, Company Circle-I(2), Coimbatore Vs. M/s. Precot Meridian Limited, Coimbatore in ITA No.1214/Mds/2012 dated 29 th April, 2013. [2] DCIT-5(2)(1), Mumbai Vs. M/s. JSW Infrastructure Limited, Mumbai in ITA No.3708 & 3709/Mum/2018 dated 08.11.2019. [3] DCIT 15(3) Vs. Kamdhenu Builders and Developers, Navi Mumbai in ITA No.7010/Mum/2010 dated 27.01.2016. [4] ACIT vs. Monarch Innovative Technologies Private Limited in ITA No.4815/Mum/2016 dated 12.02.2018. [5] National Thermal Power Company Limited Vs. Commissioner of Income Tax in Tax Ref. Case No.4 of 1988 dated 04.12.1996. [6] Commissioner of Income Tax Vs. Jayant Patel in Tax Case No.1742 of 1986 dated 21.09.1998. 7. The learned Counsel for the Assessee particularly referred to the decision of the Co-ordinate Bench of Mumbai Tribunal in the case of DCIT, Mumbai Vs. M/s. JSW Infrastructure 5 ITA No.78/Chny/2021 Limited, Mumbai (supra), wherein exactly identical issue was considered and decided in favour of the Assessee, wherein the Tribunal vide paragraph no.9 as under: “9. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below along with case laws cited by both parties. We find that the learned CIT(A) has recorded categorical findings, in light of the provision of section 80AC and held that nowhere, in the section, it was provided that unless, the Assessee makes a claim in its return filed u/s.139(1), the said claim is allowable. We further observed that as per provision of section 80AC, it is mandatory for the Assessee to file return of income on or before the due date specified u/s.139(1) to claim the benefit of any deduction provided u/s.80IA/80IB/80IC/80ID and 80IE, but nowhere in the said section, it was provided that unless, the Assessee makes claim for deduction in the return filed u/s.139(1), the said claim is allowable. We further noted that the learned CIT(A) recorded categorical finding, in the light of the decision of ITAT Chennai Bench, in the case of ACIT Vs. Precot Meridian Limited (supra), where it was held that, once original return is filed u/s.139(1) within due date specified under the Act, then any deduction claimed in the revised return filed within due date specified u/s.139(5) shall be allowed. We further, noted that the learned CIT(A) had also taken a support from the decision of ITAT, Mumbai Bench, in the case of Kamadhenu Builders & Developers Vs. Additional CIT, where it was observed that section 80A(5) only requires filing of return, but nowhere it suggest that claim should be made in the original return and not by way of original return, further when the original return of income was filed within the due date, then the revised return filed, thereafter before completion of assessment proceedings is to be considered by the Assessing Officer, because the Act has been given opportunity to the Assessee to file revised return u/s.139(4) for removal of any defect or any omissions in the original return and that if both the returns were filed within time limit prescribed under the law, then conditions prescribed u/s.80IB(1)) of the I.T.Act, 1961 are fulfilled. In this case, the Assessee has filed a return u/s.139(1) within due date specified date, but the claim for deduction u/s.80IA, in respect of second unit was not made, however a revised return was filed u/s.139(5) within due date specified under 6 ITA No.78/Chny/2021 the Act and made additional claim for deduction, in respect of second unit. When original return was filed within due date specified u/s.139(1), then any revised return filed within the due date specified u/s.139(5) to rectify any mistakes or omissions or wrong statements made in the return already filed u/s.139(1), then the revised return takes, the nature of the original return filed within due date specified u/s.139(1) and consequently, the Assessee fulfills the conditions prescribed u/s.80AC of the Act, in order to be eligible for deduction u/s.80IA of the I.T. Act, 1961. The learned CIT(A) after considering the relevant facts has rightly deleted the additions made by the Assessing Officer towards disallowances of deduction claimed u/s.80IA of the I.T.Act, 1961. We do not see any reasons to interfere in the order of the learned CIT(A) and hence, we are inclined to uphold the findings of the learned CIT(A) and reject the ground taken by the Revenue.” 8. We have heard the rival contentions and gone through the facts and circumstances of the case. We have noted that the provisions of Section 80IA(5) only requires filing of return of income but nowhere it states that the claim should be made in the original return and not by way of original return. Further, when the original return was filed within the due date, then the revised return filed, thereafter, before the completion of assessment proceedings, is to be considered by the Assessing Officer, because the Act has given an opportunity to the Assessee to file his return u/s.139(4) of the Act for the removal of defects or omission in the original return. 4.1 In view of the above, the revised return of income filed by the assessee on 28.05.2018 and consequent processing of return by the Department by issuing intimation u/s.143(1) of the Act dated 25.03.2019, the impugned order, the assessee has revised the return validly and within the time available u/s.139(5) of the Act and has also accompanied by the audit report in Form no.10CCB of the Act. Hence, we are of the view that the authorities below have 7 ITA No.78/Chny/2021 wrongly disallowed the claim of deduction. Respectfully following the Co-ordinate Bench decision in the case of Shanthi Gears Ltd., supra, we allow the claim of assessee and direct the AO accordingly. 5. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open court on 30 th September, 2022 at Chennai. (मनोज कुमार अᮕवाल) (MANOJ KUMAR AGGARWAL) लेखा सद᭭य/ACCOUNTANT MEMBER (महावीर ᳲसह ) (MAHAVIR SINGH) उपा᭟यᭃ /VICE PRESIDENT चे᳖ई/Chennai, ᳰदनांक/Dated, the 30 th September, 2022 RSR आदेशकᳱᮧितिलिपअᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकरआयुᲦ (अपील)/CIT(A) 4. आयकरआयुᲦ /CIT 5. िवभागीयᮧितिनिध/DR 6. गाडᭅफाईल/GF.