Assistant Commissioner of Income-tax, (OSD), Ward -1(1), Pune V. M/s. Anand Shelter, Developers and Builders Pvt. Ltd., Pune

MA 30/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 4939 (ITAT-PUNE)
• Duration Of Justice: 10 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-02-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-09-2018
• Assessment Year: 2011-2012
• Appeal Filed On: 11-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Section: 139; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , ! , '# $ !% , ! & BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWAS THY, JM M.A. NO. 30/PUN/2018 ( ARISING OUT OF ITA NO. 1606/PUN/2015 ) ' (' / ASSESSMENT YEAR : 2011-12 THE ASSISTANT COMMISSIONER OF INCOME TAX, (OSD), WARD-1(1), PUNE. .. /APPLICANT / V/S. M/S. ANAND SHELTERS, DEVELOPERS AND BUILDERS PVT. LTD. KOHINOOR, SADASHIV PETH, GANJAVE PATH, PUNE-411 030 PAN : AAFCA4825P . / RESPONDENT REVENUE BY : SHRI SUDHENDU DAS ASSESSEE BY : SHRI V.L. JAIN / DATE OF HEARING : 16.11.2018 / DATE OF PRONOUNCEMENT : 13.02.2019 ) / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) HAS BEEN FILED BY THE DEPARTMENT SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 20.10.20 17 IN ITA NO.1606/PUN/2015 FOR THE ASSESSMENT YEAR 2011-12. 2 MA NO.30/PUN/2018 A.Y.2011-12 2. SHRI SUDHENDU DAS REPRESENTING THE DEPARTMENT SUBM ITTED THAT THE TRIBUNAL VIDE ORDER DATED 20.10.2017 HAS ALLOWED THE APPEA L OF ASSESSEE IN GRANTING BENEFIT OF DEDUCTION U/S.80IB(10) OF THE ACT DESPIT E THE FACT THAT THE ASSESSEE HAD FILED BELATED RETURN OF INCOME UNDER P ROVISION OF SECTION 139(4) OF THE ACT. THE PROVISION OF SECTION 80AC OF THE ACT SPECIFICALLY PROVIDES THAT NO DEDUCTION U/S.80IB SHALL BE ALLOWED TO TH E ASSESSEE UNLESS THE RETURN OF INCOME IS FURNISHED FOR THE RELEVANT ASSESSMENT YEAR ON OR BEFORE THE DUE DATE AS PRESCRIBED IN SUB-SECTION (1) TO SECTION 139 OF THE ACT. THE LD. DR IN SUPPORT OF HIS CONTENTIONS PLACED R ELIANCE ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF BABULA L MOHANRAJ JAIN VS. CBDT REPORTED AS 253 TAXMAN 170. 3. ON THE OTHER HAND, SHRI V.L. JAIN APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY SUBMITTED THAT THE ORDER OF TRIBUN AL IS JUSTIFIED AND WELL-REASONED AND HENCE, REQUIRES NO RECTIFICATION. THE LD. A R FURTHER SUBMITTED THAT TRIBUNAL HAS PASSED THE ORDER AFTER CON SIDERING JUDICIAL PRONOUNCEMENTS RENDERED BY VARIOUS HON'BLE HIGH COURTS . THE LD. AR SUBMITTED THAT THE DECISION RENDERED IN THE CASE OF BABU LAL MOHANRAJ JAIN VS. CBDT (SUPRA.) DOES NOT SUPPORT THE CASE OF REVENUE AS IT HAS BEEN RENDERED IN CONTEXT OF SECTION 119 OF THE ACT. THE OBSER VATION OF THE HON'BLE HIGH COURT WITH RESPECT TO ELIGIBILITY OF ASSESSEES CLAIM OF DEDUCTION U/S.80IB WAS NOT THE ISSUE. THE HON'BLE HIGH C OURT HAS MADE PASSING REFERENCE TO THE PROVISIONS OF SECTION 80AC OF THE ACT AND HENCE SUCH OBSERVATIONS CANNOT BE SAID TO BE RATIO DICENDI OF THE JUDGMEN T. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIV E OF RIVAL SIDES AND HAVE CONSIDERED THE DECISION OF HON'BLE JURISDICTIONAL H IGH COURT IN THE CASE OF BABULAL MOHANRAJ JAIN VS. CBDT (SUPRA.). 3 MA NO.30/PUN/2018 A.Y.2011-12 5. THE CORE ISSUE RAISED IN THE APPEAL DECIDED BY THE TRIBUNAL VID E ORDER DATED 20.10.2017 WAS: WHETHER IN VIEW OF PROVISIONS OF SECTION 80AC, THE ASSESSEE IS ELIGIBLE FOR CLAIMING DEDUCTION U/S.80IB (10) IF RETURN OF INCOM E IS FILED BEYOND DUE DATE AS SPECIFIED U/S.139(1) OF THE ACT, BUT WITHIN THE EXTENDED TIME SPECIFIED U/S.139(4) OF THE ACT. UNDOUBTEDLY, THE JUDGMENT RENDERED BY THE HON'BLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF BABULAL MOHANRAJ JAIN VS. CBDT (SUPRA.) WAS NO T AVAILABLE TO THE TRIBUNAL AT THE TIME OF PASSING ORDER SOUGHT TO THE R ECTIFIED, AS THE SAID JUDGEMENT WAS RENDERED SUBSEQUENT TO THE ORDER OF TRIBUNAL. IT IS A WELL SETTLED LAW, THAT RECTIFICATION PROCEEDING CAN BE INIT IATED ON THE BASIS OF JUDGEMENT DELIVERED BY THE HON'BLE JURISDICTIONAL HIGH COURT OR SUPERIOR COURT EVEN AFTER PASSING OF THE ORDER BY TRIBU NAL. IN THIS REGARD, REFERENCE IS MADE TO THE DECISION IN THE CASE OF CIT VS. ARUNA LUTHRA REPORTED AS 252 ITR 76 ( P & H) AND IN THE CASE OF KIL KOTAGIRI TEA COFFEE ESTATES CO. LTD. VS INCOME TAX APPELLATE TRIBUNAL REPORT ED AS 174 ITR 579 ( KERELA). 6. WE FIND IN THE CASE OF BABULAL MOHANRAJ JAIN VS. CBDT (SU PRA), IT HAS BEEN HELD THAT FILING OF RETURN WITHIN THE DATE SPECIFIED UNDER SUB SECTION (1) OF SECTION 139 IS A CONDITION PRECEDENT FOR CLAIMIN G DEDUCTION UNDER SECTION 80IB OF THE ACT. UNLESS THE CONDITION PRECE DENT IS FULFILLED, THE ASSESSEE CANNOT CLAIM DEDUCTION. IN LIGHT OF LAW, LAID DO WN BY THE HON'BLE JURISDICTIONAL HIGH COURT, IT IS APPARENT THAT THE V IEW TAKEN BY THE TRIBUNAL IN ALLOWING ASSESSEES CLAIM OF DEDUCTION U/S.80IB (1 0) IS CONTRARY TO THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT. THE MISTAKE IS APPARENT FROM RECORD, HENCE, NEEDS RECTIFICATION. ACCORDING LY, THE ORDER 4 MA NO.30/PUN/2018 A.Y.2011-12 DATED 20.10.2017 PASSED BY THE TRIBUNAL IS HEREBY RECALLED AND THE APPEAL OF THE ASSESSEE IS RESTORED TO ITS ORIGINAL NUMBER. THE REGISTRY IS DIR ECTED TO LIST THE APPEAL FOR FRESH HEARING ON 08.04.2019 AFTER ISSUING NOTICE OF HEARING TO BOTH THE SIDES. 7. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENU E IS ALLOWED. ORDER PRONOUNCED ON WEDNESDAY , THE 13 TH DAY OF FEBRUARY, 2019. SD/- SD/- ( / ANIL CHATURVEDI ) ( $ !% /VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; ! / DATED : 13 TH FEBRUARY, 2019. SB ) * +,$ -$( / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS)-1, PUNE. 4. THE CIT-1, PUNE. $% &'(#)* , '#')* , +# +,- , / DR, ITAT, B BENCH, PUNE. 6. (./01 / GUARD FILE. // TRUE COPY // 2 / BY ORDER, 3# )- / PRIVATE SECRETARY '# ')* , / ITAT, PUNE. 5 MA NO.30/PUN/2018 A.Y.2011-12 DATE 1 DRAFT DICTATED ON 13.02.2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 13 .02.2019 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER