Smt.Neelam Pachisia , Bangalore V. Assistant Commissioner of Income Tax Circle-6(3)(1), Bangalore

ITA 867/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5579 (ITAT-BANGALORE)
• Duration Of Justice: 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 21-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO . 867 /BANG/201 8 ASSESSMENT YEAR : 20 13 - 14 SMT. NEELAM PACHISIA, #126, 2 ND FLOOR, SRI RANGA COMPLEX, ASWATHNAGAR, ABOVE CANARA BANK, BANGALORE 560 094. PAN: AEYPP4378N VS. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 6 [3] [1], BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI RAVISHANKAR, ADVOCATE RESPONDENT BY : SHRI R.N. SIDDAPPAJI, ADDL. CIT (DR) DATE OF HEARING : 30 .01.2019 DATE OF PRONOUNCEMENT : 30 . 01 .201 9 O R D E R PER SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A) DATED 30.11.2017. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS. 1. THE ORDERS OF THE AUTHORITIES BELOW IN SO FAR AS THEY ARE AGAINST THE APPELLANT, ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EV IDENCE, PROBABILITIES, FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT[A] IS NOT JUSTIFIED IN UPHOLDING THE DENIAL OF DEDUCTION CLAIMED BY THE APPELLANT U/S.80IC OF THE I.T.ACT, 1961 OF RS.1,01,33,040/-BEING THE INCOME OF THE UNDERTAKING BELONGING TO THE APPELLANT SET UP IN THE SPECIAL CATEGORY STATES, ON THE SLENDER AND UNSUSTAINABLE GROUND THAT THE APPELLANT HAD FILED A REVISED FORM 10CCB AND THE SAME COULD NOT BE TAKEN COGNIZANCE OF IN LIGHT OF THE JUDGEMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA REPORTED IN 284 ITR 323 UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE ITA NO. 867/BANG/2018 PAGE 2 OF 4 APPELLANT'S CASE. 2.1 THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED TH AT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE IND IA [SUPRA] WAS INAPPLICABLE TO JUDGE THE CLAIM OF THE APPELLANT SI NCE, THERE WAS NO REVISED OR FRESH CLAIM MADE BY THE APPELLANT IN COU RSE OF THE ASSESSMENT PROCEEDINGS WITHOUT FILING A REVISED RETURN OF INCO ME BUT, FACTUALLY THE APPELLANT HAD ONLY FILED A REVISED OR RECTIFIED FOR M 10CCB CORRECTING THE FIGURE OF TURNOVER THAT WAS SHOWN AT AN ERRONEO US FIGURE IN THE ORIGINAL FORM 10CCB AND THUS, THE LEARNED CIT[A] HA D TOTALLY MISDIRECTED HERSELF IN LAW IN UPHOLDING THE DENIAL OF DEDUCTION CLAIMED BY THE APPELLANT ON THIS SCORE. 3. THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THA T THE APPELLANT HAD DULY FILED THE FORM 10CCB ALONG WITH THE ORIGINAL R ETURN OF INCOME AND THERE WAS ONLY AN ERROR IN THE FIGURE OF TURNOV ER IN THE ORIGINAL FORM 10CCB SINCE THE TURNOVER OF THE UNDERTAKING WA S SHOWN AT RS. 5,78,87,894/- BY OMITTING THE TURNOVER AGAINST FORM F SALES AND THEREFORE, THE APPELLANT FILED A RECTIFIED FORM 10C CB TO REFLECT THE CORRECT TURNOVER OF THE UNDERTAKING WHICH WAS RS. 1 1,15,57,063/- AND THAT THE EXTENT OF DEDUCTION COMPUTED AND SHOWN IN BOTH THE FORMS 10CCB WAS ONE AND THE SAME OF RS. 1,01,33,040/-, WH ICH ALSO WAS FULLY SUBSTANTIATED BY THE APPELLANT BEFORE THE AUTHORITI ES BELOW BY PRODUCING THE DETAILS OF THE FORM F RECEIVED AND HE NCE, THE DEDUCTION CLAIMED OUGHT TO HAVE BEEN ALLOWED. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CCIT/DG, THE APPELLANT DENIES HERSELF LIABLE TO BE CHARGED TO INTEREST U/S.234B AND 234C OF THE ACT, WHICH UNDER THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE AND THE LEVY DESERVES TO BE CANCELLED. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLANT M AY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO ORDER FOR THE REFUND OF THE INSTITUTION FEES AS PART OF THE COSTS. 3. THE FACTS OF THIS ISSUE ARE THAT THE ASSESS EE DERIVING INCOME FROM BUSINESS AND OTHER SOURCES. HE FILED THE RETURN OF INCOME F OR ASSESSMENT YEAR 2013-14 ON 30.09.2013 DECLARING TOTAL INCOME OF RS. 92,24,4 10/-. THE ASSESSEE HAD CLAIMED DEDUCTION U/S. 80IC AT RS. 1,01,33,040/-. THE ASSESSEE WAS ASKED BY AO TO SUBMIT THE COMPLETE SET OF ACCOUNTS AND EVIDE NCE RELEVANT TO THIS CLAIM MADE BY ASSESSEE. THE ASSESSEE ONLY CHOSE TO SUBMI T THE REVISED FORM 10CCB DATED 30.09.2013 VIDE SUBMISSIONS DATED 19.02.2016 IN RESPECT OF THE CLAIM U/S. 80IC BEFORE THE AO. THE AO ONCE AGAIN VIDE ORDER S HEET ENTRY DATED 16.02.2016 ITA NO. 867/BANG/2018 PAGE 3 OF 4 ASKED THE ASSESSEE WHY THE DEDUCTION U/S. 80IC SHOU LD NOT BE REVISED IN ACCORDANCE WITH THE ORIGINAL FORM 10CCB AND AS PER THE DETAILS SUBMITTED AND AVAILABLE ON RECORDS FOR WHICH NO EXPLANATION GIVEN BY ASSESSEE. THE ASSESSEE SUBMITTED ON 18.03.2016 STATING THAT REVISED FORM 1 0CCB FILED ON 19.02.2016 WHEREIN THE EARLIER TECHNICAL DEFECTS CREPTED WERE CORRECTED. ACCORDING TO THE ASSESSING OFFICER THE DEDUCTION U/S. 80IC CANNOT BE REVISED WITHOUT FILING THE REVISED RETURN AND HENCE THE SAME WAS DENIED. AGAI NST THIS, ASSESSEE WENT IN APPEAL BEFORE CIT(A). THE CIT(A) ALSO REJECTED THE CLAIM OF THE ASSESSEE AS THE ASSESSEE HAS NOT FILED ANY REVISED RETURN TO CLAIM CORRECT DEDUCTION U/S. 80IC OF THE ACT. ONCE AGAIN ASSESSEE IS IN APPEAL BEFORE U S. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY SIMILAR ISSUE CAME BEFORE THIS TRIBUNAL IN ASSESSEES SPOUSE CASE VIZ. SHRI MANOJ KUMAR PACHISIA VS. ACIT IN ITA NO. 865/BANG/2018 DATED 01.06.2018 IN WHICH IT WAS HELD AS UNDER. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL. ADMITTEDLY, AS PER THE CONTENTION OF THE ASSESSEE, BOTH THE ORIGINAL AS WELL AS THE REVISED FORM 10CCB WERE AVAILABLE WITH THE AO. THERE IS NO CHANGE IN THE FIGURE OF DEDUCTION CLAIMED U/S.80 IC OF THE ACT. AT BOTH PLACE THE FIGURE OF RS.4,50,663/- REMAINS UNCH ANGED. HOWEVER THE CIT (A) DENIED THE BENEFIT ON THE PRETEXT THAT THE REVISED RETURN OF INCOME WAS NOT FILED AND FOR THAT THE CIT (A) RELIE D ON THE JUDGMENT OF THE HONBLE APEX COURT IN GOETZ INDIA (SUPRA). IN O UR VIEW, THE LAW LAID DOWN BY THE HONBLE SUPREME COURT, DO NOT PERM IT THE AO TO ENTERTAIN THE REVISED RETURN OF INCOME OR THE REVIS ED FORM 10CCB. HOWEVER THAT DOES NOT WITHHOLD OR PREVENT THE CIT ( A) OR THE TRIBUNAL TO TAKE INTO ACCOUNT THE CORRECTED COPY OF THE COMP UTATION IN FORM 10CCB AS WELL AS THE REVISED RETURN. IT IS THE BOUN DEN DUTY OF THE CIT (A) TO TAKE A DECISION RELYING ON THE SUBSEQUENTLY FILED REVISED FORM 10CCB. NEEDFUL HAS NOT BEEN DONE AND THERE IS NO DI SPUTE THAT THE ASSESSEE WAS ENTITLED TO DEDUCTION U/S.80IC TO THE EXTENT OF RS.4,50,663/-. HOWEVER THE ASSESSEE WAS ONLY DENIED THIS DEDUCTION RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN GOETZ (SUPRA). AS WE HAVE HELD THAT THE JUDGMENT IN GOTEZ INDIA (S UPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE AND IS NOT A IM PEDIMENT IN EXERCISING THE POWER UNDER THE ACT BY THE CIT (A) OR THE TRIBU NAL. THEREFORE, IN THE LIGHT OF THE ABOVE, WE HOLD THAT THE ASSESSEE I S ENTITLED TO DEDUCTION U/S.80IC OF THE ACT. ITA NO. 867/BANG/2018 PAGE 4 OF 4 5. IN VIEW OF ABOVE EARLIER ORDER OF THE TRIBU NAL, WE ARE INCLINED TO DECIDE THE ABOVE ISSUE IN FAVOUR OF THE ASSESSEE AND AGAINST T HE REVENUE AND DIRECT THE AO TO GRANT DEDUCTION U/S. 80IC OF THE ACT. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF JANUARY, 2019. SD/- SD/- (LALIET KUMAR) (CHANDRA POOJ ARI) JUDICIAL MEMBER ACCOUNT ANT MEMBER BANGALORE, DATED, THE 30 TH JANUARY, 2019. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGAL ORE.