M/s Shree Ganesh Concast Group of Industries, Kangra V. DCIT, Circle, Palampur

ITA 829/CHANDI/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1463 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Keywords: Period of limitation; Time period of passing order
• Section: 80IB; 147; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, SMC, CHANDIGARH , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER ./ ITA NO. 829/CHD/2018 / ASSESSMENT YEAR : 2011-12 M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, INDUSTRIAL AREA, SANSARPUR TERRACE, DISTT. KANGRA (H.P.) VS. THE DCIT, CIRCLE- PALAMPUR, (H.P.) ./PAN NO: ABGFS0856H / APPELLANT /RESPONDENT /ASSESSEE BY : SH ASHRAY SARNA, CA ! / REVENUE BY : SH. MANJIT SINGH, CIT DR ' #$ /DATE OF HEARING : 06.06.2019 %&'($ / DATE OF PRONOUNCEMENT : 06. 06.2019 / ORDER THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESS EE AGAINST THE ORDER DATED 26.03.2018 OF THE COMMISSIONER OF INCOM E TAX(APPEALS), PALAMPUR [HEREINAFTER REFERRED TO AS CIT(A)]. 2. THE ASSESSEE IN THIS APPEAL HAS TAKEN FOLLOWING GROUNDS OF APPEAL:- 1. THAT THE ORDER PASSED BY THE HON'BLE CIT(A) DATED 2 6.03.2018 IS AGAINST THE LAW AND FACTS OF THE CASE. 2. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES O F THE CASE, HON'BLE CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ACTION OF LD. AO IN FRAMING THE IMPUGNED ASSESSMENT ORDER U/S ITA NO. 829-CHD-2018- M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, KANGR A 2 147/144 AND WITHOUT COMPLYING WITH THE MANDATORY CO NDITIONS U/S 147/148/151 AS ENVISAGED UNDER THE INCOME TAX ACT, 1961. 3. THAT HAVING REGARDS TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN DISALLOWING THE BENEFIT OF DEDUCTION U/S 80IC AMOUNTING TO RS.30,17,900/-, AS EARLIER WRONGLY CLAIMED BY TH E ASSESSEE U/S 80IB OF THE ACT, WITHOUT GIVING ADEQUATE OPPORTUNIT Y OF BEING HEARD AND WITHOUT OBSERVING THE PRINCIPLES OF NATUR AL JUSTICE. 4. THAT IN ANY CASE AND IN ANY VIEW OF THE MATTER, ACT ION OF LD. CIT(A) IN CONFIRMING THE ACTION OF LD. AO IN MAKING DISALLOWANCE OF DEDUCTION U/S 80IC OF RS.30,17,900/- WITHOUT CON SIDERING THE FACT THAT RETURN WAS FILED WITHIN EXTENDED PERIOD O F SUB SECTION(4) OF SECTION 139., IS BAD IN LAW AND AGAINST THE FACT S AND CIRCUMSTANCES OF THE CASE. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 3. A PERUSAL OF THE ABOVE GROUNDS OF APPEAL REVEALS THAT THE ASSESSEE IN THIS APPEAL HAS AGITATED THE REOPENING OF THE AS SESSMENT U/S 147 OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') AS WE LL AS THE ADDITIONS MADE BY THE ASSESSING OFFICER AND FURTHER CONFIRMED BY THE CIT(A) ON MERITS. 4. GROUND NO.1 IS GENERAL IN NATURE . 5. THE LD. COUNSEL FOR THE ASSESSEE HAS NOT ADDRESS ED ANY ARGUMENTS ON THE VALIDITY OF RE-ASSESSMENT U/S 147 OF THE ACT . HENCE, GROUND NO.2 OF THE APPEAL IS DISMISSED AS NOT PRESSED. ITA NO. 829-CHD-2018- M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, KANGR A 3 6. NOW COMING TO THE ISSUES ON MERITS RAISED VIDE G ROUND NO. 3 & 4 OF THE APPEAL, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE IMPUGNED ADDITIONS HAVE BEEN MADE BY THE ASSESSING OFFICER BY DISALLOWING THE DEDUCTION CLAIMED BY THE ASSESSEE U /S 80IB OF THE ACT. THE ASSESSING OFFICER HELD THAT THE ASSESSEE IS NOT ENTITLED TO DEDUCTION U/S 80IB OF THE ACT AND FURTHER THE ASSESSEE HAD N OT FILED THE RETURN OF INCOME WITHIN THE STIPULATED PERIOD AS PROVIDED U/S 139(1) OF THE ACT. 7. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED T HAT SO FAR AS THE DENIAL OF CLAIM OF DEDUCTION U/S 80IB OF THE ACT IS CONCERNED, THE ASSESSEE, OTHERWISE, IS ENTITLED TO DEDUCTION U/S 80IC OF THE ACT ALSO. HE HAS FURTHER SUBMITTED THAT EVEN IN THE SUBSEQUEN T ASSESSMENT YEARS, ON IDENTICAL ISSUE, THE MATTER HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE AS IF THE ASSESSEE IS ENTITLED TO DEDUCTION US 80IC OF THE ACT AND IF FOU ND SO ELIGIBLE, ALLOW THE DEDUCTION TO THE ASSESSEE ACCORDINGLY. HE HAS, THEREFORE, SUBMITTED THAT MERE MENTIONING OF WRONG SECTION DOES NOT DISE NTITLE THE ASSESSEE FROM CLAIMING DEDUCTION, IF THE ASSESSEE IS OTHERWI SE ELIGIBLE, AS SUCH DEDUCTION PROVISIONS HAVE BEEN ENACTED FOR PROMOTIO N OF CERTAIN INDUSTRIES IN ECONOMIC BACKWARD AREA AND, HENCE, AR E BENEFICIAL PROVISIONS. 8. SO FAR AS THE OBSERVATION OF THE ASSESSING OFFIC ER THAT THE RETURN OF INCOME HAS BEEN FILED BEYOND THE PERIOD OF LIMIT ATION U/S 139(1) OF ITA NO. 829-CHD-2018- M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, KANGR A 4 THE ACT, THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMI TTED THAT THOUGH THERE IS A DELAY OF ONLY ONE DAY IN FILING THE RETURN OF INCOME BEYOND THE PERIOD STIPULATED U/S 139(1) OF THE ACT, HOWEVER, T HE RETURN WAS FILED WITHIN THE EXTENDED PERIOD AS PROVIDED U/S 139 (4) OF THE ACT. THAT VIDE DECISION OF THE COORDINATE CHANDIGARH BENCH OF THE TRIBUNAL IN THE CASE OF SYMBIOSIS PHARMACEUTICALS (P) LTD. VS DCIT RE PORTED IN (2017) 51 CCH 0632 (CHD-TRIB), IT HAS BEEN HELD THAT THE CLA IM OF THE ASSESSEE OF DEDUCTION COULD NOT BE OUSTED IF THE RETURN HAS BEEN FILED WITHIN THE EXTENDED PERIOD OF SUB SECTION (4) OF SECTION 139 O F THE I.T. ACT. THE LD. COUNSEL, HAS FURTHER SUBMITTED THAT THE DELAY OF ONE DAY IN FILING THE RETURN BEYOND THE LIMITATION PERIOD PRESCRIBED U/S 139(1) OF THE ACT HAS OCCURRED DUE TO CIRCUMSTANCES BEYOND THE CONTRO L OF THE ASSESSEE AND OF HIS COUNSEL. THAT THE COUNSEL FOR THE ASSESS EE TRIED TO UPLOAD THE RETURN OF INCOME ON 30.9.2011, WHICH WAS REQUIRED T O BE E-FILED, HOWEVER, DUE TO TECHNICAL GLITCHES, THE COUNSEL FOR THE ASSESSEE COULD NOT UPLOAD THE RETURN OF INCOME. THE LD. COUNSEL F OR THE ASSESSEE IN THIS RESPECT HAS RELIED UPON THE CERTAIN COMPUTER G ENERATED INFORMATION WHICH SHOWS THAT THE COUNSEL FOR THE ASSESSEE HAD T RIED TO UPLOAD THE RETURN ON 30.9.2011 AND AN XML FILE WAS ALSO CRE ATED. THAT THE RETURN OF INCOME WAS IMMEDIATELY FILED ON THE NEXT DATE. THE LD. COUNSEL, THEREFORE, HAS SUBMITTED THAT THE ASSESSEE COULD NOT BE DENIED DEDUCTION FOR DELAY OF ONE DAY IN FILING THE RETURN OF INCOME BEYOND THE ITA NO. 829-CHD-2018- M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, KANGR A 5 LIMITATION PERIOD PRESCRIBED U/S 139(1) OF THE ACT, WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE. 9. THE LD. DR, ON THE OTHER HAND, HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORITIES. 10. CONSIDERING THE RIVAL CONTENTIONS AND ALSO CONS IDERING THE DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SYMBIOSIS PHARMACEUTICALS (P) LTD. VS DCIT (SUPR A), I AM OF THE VIEW THAT THE DELAY OF 01 DAY IN ON-LINE FILING OF THE RETURN OCCURRED NOT DUE TO ANY NEGLIGENCE OF THE ASSESSEE, RATHER, THE REASON FOR THE SAME WAS BEYOND THE CONTROL OF THE ASSESSEE. EVEN OTHER WISE, THE RETURN HAS BEEN FILED WITHIN EXTENDED PERIOD AS PROVIDED U/S 139(4) OF THE ACT. IN VIEW OF THIS, THE MATTER IS RESTORED TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE LIMITED ASPECT AS TO WHETHER THE ASSESS EE, OTHERWISE, IS ENTITLED TO CLAIM DEDUCTION US 80IC OF THE ACT AND IF SO FOUND ELIGIBLE, THE ASSESSING OFFICER WILL ALLOW THE CLAIM ACCORDIN GLY IRRESPECTIVE OF THE FACT THAT THERE WAS A DELAY OF 01 DAY IN FILING THE RETURN OF INCOME BEYOND THE PRESCRIBED PERIOD UNDER THE PROVISIONS OF SECTION 139(1) OF THE ACT. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 829-CHD-2018- M/S SHREE GANESH CONCAST GROUP OF INDUSTRIES, KANGR A 6 ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT IMM EDIATELY ON COMPLETION OF HEARING. SD/- ( / SANJAY GARG) / JUDICIAL MEMBER DATED : 06.06.2019 .. &* +,-, / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' . / CIT 4. ' . ( )/ THE CIT(A) 5. ,/0 1 , $1 , 23405 / DR, ITAT, CHANDIGARH 6. 046# / GUARD FILE &* ' / BY ORDER, 7! / ASSISTANT REGISTRAR