Babulal Mohanraj Jain, Pune V. Deputy Commissioner of Income-tax - I,

ITA 871/PUN/2014

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2262 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 6 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 13-08-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Assessee Lawyers: J G PENDSE
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUNE . , , , BEFORE SHRI D. KARUNAKARA RAO , AM AND SHRI VIKAS AWASTHY, JM . / I TA NO. 871 /PUN/20 14 / ASSESSMENT YEAR : 2007 - 08 SHRI BABULAL MOHANRAJ JAIN, MANGAL PLOT NO.24, GANGADHAM SOC PHASE I, BIBWEWADI KONDHWA ROAD, PUNE - 411 037 PAN : AAJPJ5640G ....... / APPELLANT / V/S. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 2, PUNE. / RESPONDENT A SSESSEE BY : SHRI J.G. PENDSE REVENUE BY : SHRI SANJEEV GHE I / DATE OF HEARING : 13.08.2018 / DATE OF PRONOUNCEMENT : 09 .11.2018 / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) - II, PUNE DATED 08.01.2014 FOR THE ASSESSMENT YEAR 2007 - 08. 2 ITA NO. 871 /PUN/20 14 A.Y. 2007 - 08 2. THE SHORT ISSUE IN APPEAL IS REJECTION OF ASSESSEES CLAIM OF DEDUCTION U/S.80IB OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR NOT FILING RETURN OF INCOME WITHIN DUE TIME AS PRESCRIBED U/S.139(1) OF THE ACT. 3. SHRI J.G. PENDSE APPEARING ON BEHALF OF ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENGAGED IN MANUFACTURE, EXPORT AND T RADING OF CHEMICALS. THE ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S.80IB(3) OF THE ACT. THE ASSESSEE IN THE EARLIER AND THE SUBSEQUENT ASSESSMENT YEAR S WAS ALLOWED DEDUCTION U/S.80IB(3) OF THE ACT. THE ONLY REASON FOR REJECTING ASSESSEES CLAIM IN THE ASSESSMENT YEAR UNDER APPEAL WAS DELAY IN FILING RETURN OF INCOME U/S.139(1) OF THE ACT. THE LD. AR SUBMITTED THAT THE DELAY OCCURRED IN FILING OF RETURN OF INCOME FOR ASSESSMENT YEAR 2007 - 08 AS THE ELDER BROTHER OF ASSESSEE WAS SWEPT AWAY IN FLASH FLOODS ON 25.09.2007 WHILE HE WAS ON PILGRIMAGE. THE WHEREABOUTS OF HIS BROTHER WE RE NOT KNOWN DESPITE MASSIVE SEARCH OPERATION . FINALLY HIS DEATH CERTIFICATE WAS RECEIVED IN NOVEMBER, 2007. THE ASSESSEE WAS ENGAGED IN SEARCH OPERATIONS OF HIS BROTHER . THEREFORE , THE ASSESSEE COULD FILE HIS RETURN OF INCOME ON 10.03.2008. THE ASSESSEE FILED AN APPLICATION U/S.119(2) OF THE ACT BEFORE THE CENTRAL BOARD OF DIRECT TAXES (CBDT) ON 4 TH JANUARY, 2010 SEEKING CON DONATION OF DELAY IN FILING RETURN AND CLAIMING DEDUCTION U/S.80IB OF THE ACT. HOWEVER, THE APPLICATION OF ASSESSEE WAS REJECTED. AGAINST THE SAID ORDER OF REJECTION, ASSESSEE APPROACHED THE HON'BLE BOMBAY HIGH COURT IN WRIT PETITION NO.8022 OF 2012. THE HON'BLE HIG H COURT AFTER ASCE RTAINING T HE CAUSE FOR DELAY IN FILING RETURN OF INCOME DIRECTED THE CBDT TO RE - CONSIDER THE APPLICA TION. T HE HON'BLE HIGH COURT HELD THAT THE REASONS FURNISHED BY ASSESSEE FOR DELAY IN FILING RETURN SHOWS THAT DEFAULT WAS DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL. ON THE DIRECTIONS OF THE HON'BLE HIGH 3 ITA NO. 871 /PUN/20 14 A.Y. 2007 - 08 COURT, CBDT VIDE ORDER DATED 04.05.2018 CONDONED THE DELAY. THE LD. AR FURNISHED A COPY OF ORDER OF THE HON'BLE BOMBAY HIGH COURT IN WRIT PETITION NO.8022 OF 2012 (SUPRA.) AND THE ORDER OF CBDT CONDONING D ELAY U/S.119(2)(C) DATED 04.05.2018. 4. SHRI SANJEEV GHEI REPRESENTING THE DEPARTMENT SU BMITTED THAT THE DEDUCTION U/S. 80IB(3) WAS DISALLOWED AS THE RETURN WAS FILED BEYOND THE DUE DATE AS PRESCRIBED U/S.139(1) OF THE ACT. THE PROVISIONS OF SECTION 80AC MANDATES THAT ASSESSEE IS NOT ELIGIBLE FOR CLAIMING DEDUCTION U/S.80IB(3) OF THE ACT UNLESS THE RETURN OF INCOME IS FURNISHED ON OR BEFORE THE DUE DATE AS PRESCRIBED U/S.139(1) OF THE ACT. THE LD. DR FURTHER SUBMITTED THAT THE CBDT HAS CONDONED DELAY VIDE ORDER DATED 04.05.2018 I.E. AFTER THE ORDER OF COMMISSIONER OF INCOME T AX (APPEALS). THEREFORE, IT IS A SUBSEQUENT EVENT, THE ORDER OF ASSESSING OFFICER AND COMMISSIONER OF INCOME TAX (APPEALS) ARE PRIOR TO THIS ORDER. 5. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PERUSED. IT IS AN UNDISPUT ED FACT THAT IN THE PAST AND SUBSEQUENT ASSESSMENT YEAR S , ASSESSEES CLAIM OF DEDUCTION U/S.80IB(3) OF THE ACT WAS ALLOWED. IN SUPPORT, THE ASSESSEE HAS FILED COPY OF ASSESSMENT ORDERS FOR ASSESSMENT YEAR 2003 - 04 & 2009 - 10. IN THE ASSESSMENT YEAR UNDER APPEAL, THE ASSESSING OFFICER DISALLOWED ASSESSEES CLAIM OF DEDUCTION U/S.80IB (3) OF THE ACT INVOKING THE PROVISIONS OF SECTION 80AC OF THE ACT . 5.1 THE ASSESSEE HAS FURNISHED COPY OF ORDER FROM CBDT DATE D 04.05.2018 CONDONING DELAY IN FILING OF RETURN OF INCOME . THE ORD ER OF CBDT IS RECENT ONE, THE SAME WAS NOT AVAILABLE TO THE AUTHORITIES BELOW , AND HENCE, THEY DID NOT EXAMINE ASSESSEES CLAIM OF DEDUCTION U/S.80IB(3) OF THE 4 ITA NO. 871 /PUN/20 14 A.Y. 2007 - 08 ACT. IN LIGHT OF CBDT ORDER, WE RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER AND DIRE CT THE ASSESSING OFFICER TO CONSIDER ASSESSEES CLAIM U/S.80IB(3) OF THE ACT , IN ACCORDANCE WITH LAW. NEEDLESS TO SAY, THE ASSESSING OFFICER SHALL FOLLOW THE PRINCIPLES OF NATURAL JUSTICE WHILE EXAMINING THE CLAIM OF ASSESSEE . HENCE, THE SOLITARY ISSUE RAISED BY THE ASSESSEE IN APPEAL IS ALLOW ED FOR STATISTICAL PURPOSE . 6. IN THE RESULT, THE IMPUGNED ORDER IS SET ASIDE AND APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRO NOUNCED ON FRIDAY, THE 09 TH DAY OF NOVEMBER , 2018 . SD/ - SD/ - ( . / D. KARUNAKARA RAO ) ( / VIKAS AWASTHY ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 09 TH NOVEMBER , 2018 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - II, PUNE. 4. THE CIT - II, PUNE. 5 . , , , / DR, ITAT, A BENCH, PUNE. 6 . / GUARD FILE. //TRUE COPY// / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE .