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TMI Blog2018 (7) TMI 1970X X X X Extracts X X X X X X X X Extracts X X X X ..... ised return of income on 25.03.2013 along with the audit report in Form No. 10 CCB and claimed of deduction U/s 80IA of the Act. The revised return of income was within the period of limitation as provided U/s 139(5) and therefore, it was a valid revised return of income. Once, the assessee filed a valid revised return of income and complied with the conditions as stipulated U/s 80IA of the Act then, the claim of the assessee cannot be denied merely on the ground that the assessee has not claimed deduction in the original return of income and also not filed the tax report in Form No. 10CCB along with return of income filed U/s 139(1) of the Act. See M/S. RAJASTHAN FASTENERS PVT. LTD. [ 2014 (6) TMI 291 - RAJASTHAN HIGH COURT] - Decided against Revenue. Disallowance of depreciation @ 80% on certain part of the windmill - AO has segregated some part of the windmill as civil work and other electric fitting and allowed the depreciation @ 10% and 15% respectively - HELD THAT:- The civil construction and electric fittings which are part and parcel of the windmill and have no other used then for the proper functioning of the windmill. Therefore, all the foundations and other fittings whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant craves its rights to add, amend or alter any of the grounds on or before the hearing." 2. Ground Nos. (i) and (ii) are regarding the addition made by the AO on account of employee's contribution to ESI/PF beyond the prescribed time limit provided in the respective Acts which was deleted by the ld. CIT(A). 3. We have heard ld. DR as well as ld. AR and considered the relevant material on record. At the outset we note that this issue is now covered by the decision of Hon'ble jurisdiction High Court in case of CIT vs. State bank of Bikaner & Jaipur 99 DTR 131, CIT vs. Udaipur Dugdh Utpadak Sahakari Sangh Ltd. 98 DTR 109 as well as the decision in case of CIT v/s Jaipur Vidyut Vitran Nigam Ltd. 98 DTR 105. The ld. CIT(A) has considered and decided this issue by following decisions of Hon'ble jurisdictional High Court in para 5.2 is as under:- "5.2. I have gone through the facts of the case, the AO's order and appellant's submissions. The AO made the addition of ₹ 23,855/- observing that the assessee failed to deposit the employee's contribution towards PF/ESI within due dates. The appellant has submitted that the position of law in this regard is settled with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pays interest on delayed payment but can incur penalties also, for which specific provision are made in the Provident Fund Act as well as the ESI Act. Therefore, the Acts permit the employer to make the deposit with some delays , subject to the aforesaid consequences. Insofar as the I T Act is concerned, the assessee can get the benefit if the actual payment is made before the return is filed. - CIT vs. Vinay Cement Ltd. (2007) 213 CTR (SC) 268, CIT vs. Dharmendra Sharma (2007) 213 CTR (del) 609 : (2008) 297 ITR 320 (Del) and CIT vs. P. M. Electronics Ltd. (2008) 220 CTR (del) 635 : (2008) 15 DTR (del) 258 followed." Apart from the above decisions, the following decisions are also applicable on the issue at hand:- i. Dy CIT vs. Orbit Resorts (P) Ltd (48 SOT 23 (URO) ii. ACIT vs. Ranabaxy Laboratories Ltd. (2011) 7 ITR (Trib) 161 (DLH) iii. ACIT vs. M/s. Anil Special Steel Industries Ltd. (decision of Jaipur Bench in ITA No. 1100/JP/2011) From the above decisions, it is clear that payment or contribution made to the provident fund authority any time before filing of the return for the year in which the liability to pay accrued is an allowable expenditure. Likewis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was within the period of limitation as provided U/s 139(5) and therefore, it was a valid revised return of income. Once, the assessee filed a valid revised return of income and complied with the conditions as stipulated U/s 80IA of the Act then, the claim of the assessee cannot be denied merely on the ground that the assessee has not claimed deduction in the original return of income and also not filed the tax report in Form No. 10CCB along with return of income filed U/s 139(1) of the Act. The Hon'ble jurisdictional High Court in case of CIT vs. Rajasthan Fasteners (P) Ltd. (supra) has considered this issue and held in paras 8 to 18 as under:- 8. We have heard ld. Counsel for the Revenue and gone through the orders passed by the authorities below. 9. It would be fruitful to quote Sec. 80A(5) of the IT Act, which provides as under:- "80A(1) " " " " " " (2) " " " " " " (3) " " " " " " (4) " " " " " " (5) Where the assessee fails to make a claim in his return of income for any deduction under section 10A or section 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 deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g questions of law arising in assessment proceedings although not raised earlier." 13.In the case of Jute Corporation of India Ltd. v. Commissioner of Income Tax: (1991) 187 ITR 688 (SC), while dealing with the powers of the Appellate Assistant Commissioner, the Supreme Court observed that: "An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered in its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exemption could be disallowed outrightly. It was already stated by the assessee during the course of hearing before the AO himself that it complies with all the requirements for claim of exemption u/s 10B. The assessee company was under the bonafide belief that there was no mistake in the return, hence no revised return was filed but after knowing the clerical/computerized mistake that the claim was wrongly mentioned as u/s 80IB instead of Sec.10B, the assessee company filed a revised computation of income claiming deduction u/s 10B of the IT Act vide letter dt. 13/12/2010 before the AO. Not only this, the assessee also filed copy of ARE-1 duly sealed and signed by the custom authorities in respect of the exports having taken place. For evidencing realization of export bills, the statement of outstanding export bills from Andhra Bank as on 31/08/2008 showing the export bills outstanding for realization as on that date was also submitted. From the statement of outstanding export bills as confirmed by the Andhra Bank, it was clear that no bill prior to the date of March, 2008 had been shown as outstanding for realization. It is an admitted fact that since assessment year 2004-05, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inus with that of the Income Tax Officer. He could do what the Income Tax Officer could do and also direct him to do what he had failed to do. It has been held by authorities of the Hon'ble Apex Court (supra) that above observations are squarely applicable and the interpretation of Section 251(1)(a) of the Act. The declaration of law was clear that the power of the Appellate Assistant Commissioner [CIT (Appeals)] was co-terminus with that of the Income Tax Officer and if that is so, there appears to be no reason as to why the appellate authority could not modify the assessment order on an additional ground even if not raised before the Income Tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise, an appellate authority, while hearing an appeal against the order of a subordinate authority, had all the powers which the original authority might have in deciding the question before it subject to the restrictions or limitation, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority was vested with all the plenary power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which are not eligible for the higher rate of depreciation. Accordingly, the AO denied the higher rate of depreciation on the civil work which includes foundation and other accessories and electrical items and allowed the depreciation on these items @ 10% to 15% as per schedule of depreciation. The assessee challenged the action of the AO before the ld. CIT(A). The ld. CIT(A) has allowed the claim of the assessee by following decision of this Tribunal in case of Vijay Industries vs. ACIT dated 18.07.2008 in ITA No. 745/JP/2007. 8. Before us, the ld. DR has submitted that the AO has segregating the items which are eligible depreciation @ 10% and 15% and not @ 80%. Therefore, the civil work and other buildings like control room for windmill cannot be regarded as part of the windmill eligible rate for higher rate of depreciation. He has relied upon the order of the Assessing Officer. 9. On the other hand, the ld. AR has supported the order of the ld. CIT(A) and has also relied on the decision of Hon'ble jurisdictional High Court in case of Pr. CIT vs. M/s Gangaur Exports Pvt. Ltd. dated 22.05.2017 in D.B. ITA No. 14/2017. 10. We have considered the rival submissions as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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