Dy. Commissioner of Income Tax , Circle-17(1), Hyderabad V. Delhi MSW Solutions Limited , Hyderabad

ITA 888/Hyd/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 0877 (ITAT-HYDERABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB-A
• Assessment Year: 2016-2017
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR PANDEY
• Assessee Lawyers: VISHAL
• Keywords: Revised return
• Section: 154; 139; 10AA; 115JB; 139(5); 10B; 143(1); 80IA; 201; 139(1); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD (THROUGH VIDEO CONFERENCING) BEFORE S HRI S.S. GODARA , JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER ITA NO. 888/ HYD/201 9 ASSESSMENT YEAR: 2016 - 17 DY.CIT, CIRCLE 17(1) HYDERABAD VS. DELHI MSW SOLUTIONS LTD. HYDERABAD [PAN: AA DCD1783F ] ( APPELLANT) (RESPONDENT) DEPARTMENT BY: SRI SUNIL KUMAR PANDEY, DR ASSESSEE BY : SRI VISHAL, AR DATE OF HEARING: 02 / 02 / 2021 DATE OF PRONOUNCEMENT: 24 /02/ 20 21 ORDER PER BENCH THIS R EVENUES APPEAL FOR A.Y. 2016 - 17 IS DIRECTED AGAINST THE COMMISSIONER OF INCOME TAX (APPEALS) 5 [CIT(A) FOR SHORT] , HYDERABADS ORDER DATED 22.03.2019 IN CASE NO. 0030/ 201 8 - 19/CIT(A) - 5/HYD/10022/2018 - 19 , INVOLVING P ROCEEDINGS U/S 143(1) OF THE INCOME TAX ACT, 1961 [ THE ACT FOR SHORT]. HEARD BOTH THE PARTIES. CASE FILE PERUSED. ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 2 2. THE R EVENUE HAS RAISED THE FOLLOWING SUBSTAN TIVE GROUNDS IN THE INSTANT APPEAL. 1. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, LD.CIT(A) IS CORRECT IN LAW IN ALLOWING THE CLAIM OF DEDUCTION U/S 80 IA OF THE INCOME TAX ACT, 1961. 2. WHETHER IN THE FACTS AN D CIRCUMSTANCES OF THE CASE, LD.CIT(A) IS CORRECT IN LAW IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE DEDUCTION U/S 80 IA CLAIMED BY THE ASSESSEE SINCE THE ASSESSEE FAILED TO COMPLY TO THE PROVISION OF SEC. 80 IA(7) OF THE ACT. 3. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ORDER OF THE LD.CIT(A) CLEARLY VIOLATES THE INTENTION OF THE DEPARTMENT ON PROCESSING OF THE RETURN OF INCOME ELECTRONICALLY BY CPC. 4 ANY OTHER GROUND THAT MAY BE RAISED AT THE TIME OF HEARING. 2.1. BOTH THE LEARNED REPRESENTATIVES TAKE US TO THE CIT(A)S DETAILED DISCUSSION HOLDING THE ASSESSEE I S ENTITLED FOR SECTION 80 IA D EDUCTION IN ISSUE READING AS UNDER: 6. CONSIDERING THE SUBMISSIONS MADE BY THE APPELLANT IN CONNECTION WITH THE DELAY IN FILING OF APPEAL, THE DELAY IS CONDONED AND THE APPEAL IS DECIDED ON THE MERITS AS FOLLOWS. THE APPELLANT HAS FILED AN APPEAL ON ACCOUNT OF DISALLOWANCE U/S 80 I A WHILE PRO CESSING U/S. 143(1) OF THE INCOME TAX ACT, 1961 BY THE A O . THE APPELLANT HAS FILED A RETURN FOR A.Y. 2016 - 17 ON 14.10.2016 WHICH WAS WITHIN THE DUE DATE OF THE FILING OF THE RETURN. THE APPELLANT HAD DECLARED AN INCOME OF RS. 5,43,660/ - AFTER CLAIMING DED UCTION U/S. 801A OF RS. 19,02,51,433/ - AND FURTHER OFFERED INCOME U/S 115JB AT RS. 5,34,33,460/ - . THE APPELLANT FURTHER FILED A REVISED RETURN ON 28.12.2016 DECLARING AN INCOME OF RS. 5,45,170/ - AFTER REVISING THE DEDUCTION U/ S. 80IA TO RS. 19,18,68,98 6/ - U/S. 801A OF THE INCOME TAX ACT AND INCOME U/S 115JB AT RS. ,5,09,10,210/ - ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 3 THE REVISED RETURN WAS PROCESSED U/S 143(1) ON 20.08.2017 WHICH RESULTED IN THE DISALLOWANCE U/S 80IA(4) OF RS. 19,18,68,986/ - , THUS RESULTING IN THE INCOME OF RS. 19,24,14,1 60/ - (AFTER ROUNDING OF). THE APPELLANT FILED AN APPLICATION U/ S. 154 WHICH WAS REJECTED AND FURTHER A GRIEVANCE PETITION WAS FILED ON 29.01.2018 IN WHICH IT WAS STATED TO THE APPELLANT THAT THE RETURN HAS BEEN FILED AFTER THE DUE DATE OF FILING OF RET URN. FOR SUCH AN ACTION, THE APPELLANT HAS STATED THAT THE ADJUSTMENT HAS BEEN PRESCRIBED FROM ONLY A.Y. 2017 - 18 AND THEREFORE COULD NOT HAVE BEEN DONE FOR THE PRESENT YEAR, THIS CONTENTION OF THE APPELLANT IS REJECTED ACCORDINGLY AS THE ADJUSTMENT ARE NOT PRES CRIBED AS PER LAW AND THEREFORE TO PRESUME THAT AN ADJUSTMENT COULD HAVE BEEN DONE ONLY IN A.Y. 2017 - 18 IS INCORRECT PRESUMPTION AND IS REJECTED ACCORDINGLY. THE APPELLANT NOTED THAT AS THE REVISED RETURN HAS BEEN PROCESSED AND THE ORIGINAL RETURN WAS ON TIME, THEREFORE THE APPELLANT WAS ELIGIBLE FOR DEDUCTION U/ S. 80 I A IN VIEW OF VARIOUS JUDICIAL RULINGS WITH REGARD TO 80AC, WHICH PLACES THE CLAUSES FOR THE DENIAL OF DEDUCTION, IF THE RETURNS ARE NOT FILED WITHIN THE DUE DATE. THE APPELLANT FURTHER F ILED A GRIEVANCE PETITION ON 09.04.2018 BY RAISING THIS CONTENTION AS BROUGHT OUT IN THE ABOVE PARAGRAPH, TO WHICH THE COMMUNICATION WAS RECEIVED THAT THE FORM NO. 10CCC/10CCB WAS NOT FILED. THE APPELLANT HAS CONTENDED THAT THIS ACTION U/S 143( 1) IS ILLEG AL AND THEREFORE THE ADDITION MADE U/S 143(1) SHOULD BE DELETED ACCORDINGLY. THERE ARE TWO ISSUES WHICH EMERGE OUT OF THE WHOLE DISCUSSION, THE FIRST ISSUE IS REGARDING THE ELIGIBILITY OF THE DEDUCTION U/S . 80 I A BASED ON A RETURN WHICH HAS BEEN FILED A FTER THE FILING OF ORIGINAL RETURN AND THE FILING OF FORM 10CCB. THE PROVISIONS OF SECTION 80A(5) AND 80AC ARE BROUGHT OUT AS UNDER: BOA( 5 ), 'WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION UNDER SECTION L 0 A OR SECTIO N 10AA OR SECTION 10B OR SECTION 10BA OR UNDER ANY PROVISION OF THIS CHAPTER UNDER THE HEADING 'C. - DEDUCTIONS IN RESPECT OF CERTAIN INCOMES', NO DEDUCTION SHALL BE ALLOWED TO HIM THERE UNDER.]' ' 8 OAC. DEDUCTION NOT TO BE ALLOWED UNLESS RETURN FURNISHED . - WHERE IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE OF THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 2006 OR ANY SUBSEQUENT ASSESSMENT YEAR, ANY DEDUCTION IS ADMISSIBLE UNDER SECTION 8 O - LA OR SECTION 80 - I AB OR SEC TION 8 O - IB OR SECTION 8 O - IC, NO SUCH DEDUCTION SHALL BE ALLOWED TO HIM UNLESS ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 4 HE FURNISHES A RETURN OF HIS INCOME FOR SUCH ASSESSMENT YEAR ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB - SECTION (1) OF SECTIO N 139 .' A READING OF THE BOTH SECTIONS 80A(5) AND 80AC, IT EMERGES THAT TO MAKE A CLAIM U /S 80IA, THE ASSESSEE IS SIMPLY REQUIRED TO FILE THE RETURN OF INCOME U / S 139(1) AND THE CLAIM CAN BE MADE IN THE REVISED RETURN OF INCOME ALSO I.E. THERE IS NO BAR FOR MAKING THE CLAIM EVEN IN THE RETURN O F INCOME FILED U /S 139 (5) OF THE IT ACT. THE IDENTICAL ISSUE CAME UP BEFORE THE HON'BLE ITAT KOLKATA IN THE CASE OF DCIT VS MACKINTOSH BURN LTD, KOLKATA, THE SAID ASSESSEE FILED ITS RETURN OF INCOME ON 29.11.2006, U / S 139(1) OF THE IT ACT DECLARING TAX ABLE INCOME AT RS.15.27 CRORES, SUBSEQUENTLY , THE ASSESSEE FILED REVISED RETURN U / S 139(5) CLAIMING THE DEDUCTION U / S 80IA AT RS.9.44 CRORES. THE AO DISALLOWED THE CLAIM STATING THAT THERE IS NO CLAIM IN THE RETURN FILED U / S 139( 1) AS CA'S CERTIFICATE IN FORM NO.10CCB WAS NOT OBTAINED ON THE DATE WHEN THE ORIGINAL RETURN IS FILED. THE CIT(A) ALLOWED THE CLAIM AND THE DEPARTMENT PREFERRED AN APPEAL BEFORE THE HON'BLE ITAT KOLKATA. THE HON'BLE ITAT IN THEIR ORDER DCIT VS MACKINTOSH BURN LTD, KOLKATA, IN I TA NO.790 / KOL / 2014, DT: 15.03.2017, AFTER CONSIDERING THE DECISIONS OF OTHER JUDICIAL BODIES DISMISSED THE APPEAL OF THE DEPARTMENT. THE RELEVANT PART OF THE JUDGMENT IS REPRODUCED HEREUNDER: 'WE HAVE HEARD RIVAL SUBMISSIONS AND GONE TH R OUGH FACTS AND CIRCUMSTANCES OF THE CASE. THE FACTS STATED HEREINABOVE REMAINED UNDISPUTED AND HENCE, THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. THE ANALYSIS TO THE IMPUGNED ISSUE BY THE LD. CIT(A) AND THE VARIOUS PROVISIONS OF THE ACT RELATING TO THE IMPUGNED ISSUE TOGETHER WITH THE VARIOUS CASE LAWS RELIED ON BY THE LD. AR ARE NOT REITERATED HEREIN FOR THE SAKE OF BREVITY. WE FOUND IT PERTINENT TO ANALYSE THE APPLICABILITY OF THE SPECIAL BENCH DECISION OF THE RAJKOT TRIBUNAL IN THE CASE OF SAFFIRE GARMENTS VS. ITO REPORTED IN (2012) 28 T AXMAN.COM 27 (RAJKOT S.B) DATED 30.11.2012 TO THE FACTS OF THE INSTANT CASE. WE FIND THA T THE HON'BLE SPECIAL BENCH OBSERVED THAT THE PROVISO TO SECTION 10A(1A) OF THE ACT STATES THAT NO DEDUCTION UNDER THIS SECTION SHALL BE ALLOWED TO AN ASSESSEE WHO DOES NOT FURNISH A RETURN OF HIS INCOME ON OR BEFORE THE DUE DATE SPECIFIED UNDER SE C. 139( 1) OF ACT AND ACCORDINGLY, IT WAS HELD THAT THE ABOVE PROVISO IS MANDATORY AND NOT DIRECTORY. THE HONBLE SPECIAL BENCH DISTINGUISHED CATENA OF CASES RELIED ON BY THE ASSESSEE AND HELD THAT THOSE DECISIONS WERE IN DIFFERENT CONTEXT, VIZ., FILING OF AUD IT REPORT, FORM NO. L 0 CCB ETC. AND HENCE, WERE NOT APPLICABLE TO THE ASSESSEE. WHILE DISTINGUISHING THE CASES, THE HON'BLE SPECIAL BENCH OBSERVED THAT IN THE INSTANT CASE THE ISSUE WAS FILING OF RETURN ITSELF AND NOT FILING OF DOCUMENTS ALONG WITH THE RET URN. ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 5 IN THE INSTANT CASE BEFORE US, THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME ON 29 . 11.2006 WHICH WAS BEFORE THE DUE DATE SPECIFIED U/S. L39(L) OF THE ACT I.E. 30.11.2006. THEREAFTER, THE ASSESSEE HAD FILED REVISED RETURN ON 28.03.2008 WHER EIN IT CLAIMED DEDUCTION U/S. 80IA OF THE ACT. SINCE THE ASSESSEE HAD FILED ITS RETURN OF INCOME BEFORE THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT FOR THE RELEVANT YEAR, THE QUESTION OF DENYING THE BENEFIT U/S. 80IA OF THE ACT DOES NOT ARISE. HENCE, THE DECISION OF THE HON'BLE SPECIAL BENCH CANNOT BE MADE APPLICABLE TO THE FACTS OF THE INSTANT CA S E BEFORE US. ON THE CONTRARY, WE FIND THAT THE SAID DECISION IS TO BE INTERPRETED IN FAVOUR OF THE ASSESSEE SINCE THE ASSESSEE HAD FILED ITS RETURN BEFORE THE D UE DATE AND AS SUCH, IS ELIGIBLE FOR DEDUCTION. IT IS NOT THE CASE THAT THE ASSESSEE BEFORE THE HON'BLE SPECIAL BENCH HAD FILED ITS ORIGINAL RETURN BEFORE THE DUE DATE OF FILING THE RETURN FOR THE RELEVANT YEAR AND CLAIMED DEDUCTION U/ S. 10A OF THE ACT IN ITS REVISED RETURN. THE CASE BEFORE THE HON'BLE SPECIAL BENCH WAS THAT THE ASSESSEE HAD FILED THE RETURN ITSELF AFTER THE DUE DATE OF FILING THE RETURN AND HENCE, THE HON'BLE SPECIAL BENCH DECIDED THE ISSUE AGAINST THE ASSESSEE, WHICH IS NOT THE CASE OF T HE ASSESSEE BEFORE US. WE FIND THAT THE L D. CIT(A) HAD MADE THE VERY SAME OBSERVATION AFTER INTERPRETING THE SECTION 80AC OF THE ACT [SIMILAR TO PROVISO TO SEC. L 0 A( 1 A) I,E, CLAIM OF SECTION 80IA , SHAL1 BE ALLOWED IF RETURN IS FURNISHED BEFORE THE DUE DATE OF FILING THE RETURN AND HELD THAT THE ASSESSEE IS SQUARELY ENTITLED FOR DEDUCTION U/ S 80IA OF THE ACT AS ALL THE CONDITIONS THEREIN WERE DULY FULFILLED BY THE ASSESSEE. THE LD. DR DID NOT REFUTE ANY OF THE FIND INGS OF THE LD. CIT(A) BY PRODUCING ANY COGENT MATERIAL OR CONTRARY EVIDENCE AND THE SUBMISSIONS MADE BY THE LD. AR BEFORE US. IN VIEW OF O UR AFORESAID ACTS AND FINDINGS AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON H EREINABOVE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND THE SAME IS H EREBY UPHELD. APPEAL OF REVENUE IS DISMISSED. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. IN THE ABOVE CASE, THE ASSESSEE WAS ALLOWED DEDUCTION U/S. 80 IA MERELY ON THE FACT THAT THE RETURN WAS FILED WITHIN THE DUE DATE AND IN SPITE OF THE FACT THAT THE CLAIM U/S . 80IA WAS MADE FOR THE FIRST TIME IN THE REVISED RETURN. IN THE INSTANT CASE , THE APPELLANT HAD CLAIMED THE DEDUCTION U/S 80IA IN THE ORIGINAL RETURN AND ONLY REVISED IT SUBSEQUENTLY. THE APPELLANT DID NOT FILE THE FORM NO. 10CCB DURING THE COURSE OF FILING THE ORIGINAL RETURN BUT FILED IT SUBSEQUENTLY IN THE REVISED RETURN. THEREFORE, THE CASE OF THE APPELLANT IS MUCH BETTER THAN OF THE ISSUE DISCUSSED ABOVE, WHEREIN THE CLAIM WAS MA DE FOR THE FIRST TIME IN THE REVISED RETURN AND THEREFORE IN THAT CASE 10CCB OBVIOUSLY WAS FILED FOR THE FIRST TIME IN THE REVISED RETURN. ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 6 THEREFORE, IN THE PRESENT CASE ONLY THE CLAIM WAS REVISED REGARDING DEDUCTION U/S 80IA IN THE REVISED RETURN AND F ORM NO. 10CCB WAS FILED FOR THE FIRST TIME IN THE REVISED RETURN. THUS, THE CASE OF THE APPELLANT IS A SUB SET OF THE CASE DISCUSSED ABOVE, WHEREIN THE DEDUCTION U/S . 80IA WAS ALLOWED. THE ABOVE BEING FACTUAL POSITION OF LAW WOULD NOT NEED ANY INTERP RETATION AND THEREFORE THE CLAIM U/S . 80IA CANNOT BE DISALLOWED WHILE PROCESSING U/S 143(1) OF THE INCOME TAX ACT, 1961. IN VIEW OF THE ABOVE, THE AO IS DIRECTED TO ALLOW THE DEDUCTION UL S. 80IA AS CLAIMED. THEREFORE, THE GROUND NO. 2 IS ALLOWED ACCORDINGLY, AND AS SUBSTANTIVE RELIEF HAS BEEN GRANTED TO THE APPELLANT, THE OTHER GROUNDS NO. 3, 4, 5 AND 6 BECOME ACADEMIC FOR ADJUDICATION AND HENCE AM ADJUDICATED. 2.2. MR. PANDEY VEHEMENTLY CONTENDED DURING THE COURSE OF HEARING THAT THE CIT (A) HAS ERRED IN LAW AND ON FACTS IN TREATING ASSESSEE AS ELIGIBLE FOR SEC . 80 IA RELIEF DESPITE THE FACT THAT IT HAD NOT FILED F ORM 10 CCB ALONG WITH THE ORIGINAL RETURN . 2.3. L EARNED AUTHORISED REPRESENTATIVE ON THE OTHER HAND DREW OUR ATTENTION TO THE CLINCHING FACTS INTER ALIA THAT THE ASSESSEE HA D VERY WELL RAISED ITS SEC . 80 IA DEDUCTION CLAIM WITH ORIGINAL RETURN FILED U/S 139(1) FOLLOWED BY ITS REVISED RETURN ALONG WITH FORM 10 CCB WHICH WAS PROCESS ED U/S 143 ( 1 ) OF THE A CT DIS ALLOWING THE ABOVE REL IEF . T H IS CLINCHING FACT HAS GONE UNREBUTTED FROM DEPARTMENT SIDE. COUPLED WITH THIS , WE ALSO WISH TO RE ITERATE HERE THAT SEC . 80 I A R.W.S. 80 I A (7) EXPRESSLY PROVIDE S FOR THE IMPUGNED RELIEF . WE THEREFORE QUOTE HONBLE APEX COURTS LANDMARK DECISION IN KV PILLAI VS. CIT (1967) 63 ITR 411 (SC) TO EXPRESS OUR COMPLETE AGREEMENT ITA NO 8 88 /HYD/19 AY 2016 - 17 DYCIT, CIRCLE 17(1) VS. DELHI MSW SOLUTIONS LTD. H YD. 7 WITH THE CIT(A)S DETAILED DISCUSSION TREATING THE ASSESSEE ELIGIBLE FOR THE IMPUGNED RELIEF. REVENUES SO LE SUBSTAN TIVE GRIEVANCE TO THIS EFFECT FAILS THEREFORE. THIS REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH FEBRUARY, 2021 . SD / - SD/ - ( L.P. SAHU ) ACCOUNTANT MEMBER (S.S. GODARA) JUDICIAL MEMBER HYDERABAD, DATED 24 TH FEBRUARY, 2021 . * GMV COPY TO: 1 DELHI MSW SOLUTIONS LIMITED, D.NO. 6 - 3 - 1089/G/10 & 11, 1 ST FLOOR GULMOHAR AVENUE, RAJBHAVAN ROAD, SOMAJIGUDA, HYDERABAD 500 082, TELANGANA. 2 DCIT, CIRCLE 17 (1) HYDERABAD /ACIT, RANGE 17 , HYDERABAD 3 CIT (A) - 5 HYDERABAD 4 PR. CIT - 5 , HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE