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TMI Blog2019 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... Goetze (India) Limited [ 2006 (3) TMI 75 - SUPREME COURT] and considering the fact that the assessee is eligible for claim of deduction which was otherwise eligible, which was denied solely for the reason that the deduction has not been claimed in the return, is hereby allowed. Method of calculation in determining the eligible deduction - As gone through the rationale and the method of calculation in determining the eligible deduction by the Ld. CIT(A) and find that the Ld. CIT(A) has determined the deduction based on the aggregate build up area, percentage of completion work, and the expenditure involved Accordingly out of the deduction claim of 2,25,43,724/- claimed by the assessee an amount of 21,10,455/- has been found to be taxable (as per the table below) and the remaining amount is hereby held to be eligible for deduction under section 80IB(10) Disallowance of contribution to pension fund u/s 36(1)(iv) - HELD THAT:- As brought to our notice that the ld. CIT, Shimla has accorded approval under Sub Rule (1) of Rule 2 of Part-B of the Fourth Schedule of Income Tax Act,1961 w.e.f 31/03/2008 i.e; from the date of creation of fund under section. Hence the assessee would be eligibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. 216 ITR 321 is not squarely applicable to the Housing Board/Authority. Ground No 3 The Ld A.O. has indulged in pick and choose policy with a pro revenue stance. The Ld A.O. is treating the revised return as non est but at the same time is working out the taxable income on the basis of the same. However, when it comes to the question of transfer charges he is referring to the original returns, which is resulting in double taxation Following grounds raised by the Assessee in ITA No. 481 for A.Y. 2007-08 Ground No. 1) Claim of deduction u/s 80 IB(10) - ₹ 56076048/- a. The Ld A.O. had misconstrued the provisions of Act and the intent of the legislation and had very narrowly interpreted the provisions of the Act and has not allowed deduction u/s 80 (IB)(10) on flimsy grounds, but the CIT (A) has ruled that except for Projects mentioned in para 8 amounting to ₹ 9813055.08 all other projects are permissible for deduction u/s 80 IB, however, because for the reasons that the return has been filed late the provisions of Section 80 AC is attracted and as such the entre claim of ₹ 56076048/- has been rejected. b. That the Ld A.O. and the CIT (A) has erred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 for A.Y. 2007-08 not pressed Issue of 80IB for A.Y. 2006-07: 5. Brief facts of this issue are that the assessee filed return of income on 31/03/2007 declaring total income of ₹ 2,33,74,215/-. The revised return for the same has been filed on 31/03/2008 declaring income of ₹ 11,86,511/- and claiming exemption of ₹ 2,25,43,724/- under section 80IB(10). The Assessing Officer rejected the claim of the assessee on the grounds that the assessee has filed the original return beyond the due date allowed under section 139(1) and hence no deduction is allowable as per the provisions of Section 80AC. 6. Ld. CIT(A) on factual examination held that an amount of ₹ 21,10,455/- on account of the projects at Kullu, Nahan, Nalagarh, Sanjauli, Solan, Shogi, Una, Siddhpur is not eligible for deduction. At the same time the eligible exemption of ₹ 2,04,33,269/- was not allowed by the Ld. CIT(A) on the grounds that in view of the provisions of Section 139(5) and Section 80AC of the Income Tax Act,1961 and since the filing of the return has been delayed, the assessee would not be eligible for exemption. Section 139(5) reads as under: " If any person, having furnis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ii) *** (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card, not being an "add-on" card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income during any previous year ending before the 1st day of April, 2005, on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply: Provided also that every company or a firm shall furnish on or before the due date the return in respect of its income or loss in every previous year : Provided also that a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6, who is not required to furnish a return under this sub-section and who during the previous year has any asset (including any financial int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purposes of this sub-section, the expression "motor vehicle" shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). Explanation 2.-In this sub-section, "due date" means,- (a) where the assessee other than an assessee referred to in clause (aa) is- (i) a company 32[***]; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, the 30th day of September of the assessment year; (aa) in the case of an assessee who is required to furnish a report referred to in section 92E, the 30th day of November of the assessment year; (b) in the case of a person other than a company, referred to in the first proviso to this sub-section, the 31st day of October of the assessment year; (c) in the case of any other assessee, the 31st day of July of the assessment year. Explanation 3.-For the purposes of this sub-section, the expression "travel to any foreign country" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Y. 2008-09- In this case the return was filed beyond the time limit specified in Section 139(1) allowing deduction under section 80IB of the Income Tax Act,1961 and the order of the Ld. CIT passed under section 263 was dismissed by the Tribunal on the grounds that the difference of opinion cannot be a reason for invoking Section 263. The order also dealt that the language of the provisions of Section 10B(1) and Section 80AC are pari material, and also referred the case of M/s Vega Conveyers and Automation Ltd. in ITA No. 1231/Hyd/2010 where in the Assessing Officer has rejected the deduction claimed under section 80IC though the return was filed in time the Form 10CCB was filed only during the assessment proceedings. The Tribunal held that delay in filing of Form 10CCB is a curable defect. • S Venkataiya in ITA No. 984/Hyd/2011 - In this case the deduction claimed under 80IC was allowed wherein the return was filed belatedly with the delay of 74 days. • Hansa Dalkoti in ITA No. 3352/Del/2011 - In this case the ITAT has allowed the deduction claimed under section 80IC wherein the return was filed after the due date on the grounds that the Assessee has filed the suppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not claimed any deduction. The purportedly revised return was filed on 31/03/2008 claiming deduction under section 80IB. As per the provisions of Section 139(5) the assessee who has filed the return under section 139(1) in this case 30/11/2006 can only file a revised return by 31/03/2008. Hence the return filed by the assessee on 31/03/2008 becomes non-est. 12. The Assessing Officer in his order at para no. 4 has mentioned this fact but and also embarked upon an computation of determining the deduction which was truly a commendable exercise based on facts. 13. The Ld. CIT(A) has also clearly mentioned in his order at para no. 5.1 that the Assessing Officer has also framed assessment on merits without prejudice to the fact that the return of the income is a non-est return. Having said that the return is non-est the Ld. CIT(A) has also embarked upon the similar computation determination of the deduction on her own for the A.Y. 2006-07. 13.1 With these facts the question to be decided narrows down to a) whether deduction claimed under section 80IB in a non-est return be allowed or not. b) whether the deduction claimed by the assessee before the appellate authority which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h arise from the order of the Commissioner of Income Tax (Appeals); that both the assessee as well as the department have a right to file an appeal/cross objection before the Tribunal and the Tribunal is not prevented from considering questions of law arising in assessment proceedings although not raised earlier. While answering the question in affirmative, the Hon'ble Supreme Court concluded that the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. Similarly the full bench of the Hon'ble Bombay High Court in the cases of "Ahmedabad Electricity Company Ltd. Vs. CIT" and "Godavari Sugar Mills Ltd. Vs. CIT" by way of a common order dated 30/04/1992 (1993) 199 ITR 351 has observed that the basic purpose of an appeal procedure in an income tax matter is to ascertain the correct tax liability of the assessee in accordance with law. Therefore either at the stage of CIT(A) or the Tribunal the authorities can consider the proceedings before them and the material on record before it for the purpose of determining the correct tax liability. The Hon'ble full bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... norance or for some other reason could not claim the same in the return of income, but has raised his claim before the appellate authority, the appellate authority should have looked into the same. The assessee cannot be burdened with the taxes which he otherwise is not liable to pay under the law. Even a duty has also been cast upon the Income Tax Authorities to charge the legitimate tax from the tax payers. They are not there to punish the tax payers for their bonafide mistakes. 16. On a comprehensive reading of the judgments and the legal position laid down thereof in the case of National Thermal Power Company Ltd, Ahmedabad Electric Co. Ltd., Pruthvi Brokers & Shareholders Pvt. Ltd , Goetze (India) Limited and considering the fact that the assessee is eligible for claim of deduction which was otherwise eligible, which was denied solely for the reason that the deduction has not been claimed in the return, is hereby allowed. 17. Consequently, having allowed the deduction, we have gone through the deduction computed by the Ld. CIT(A) and also heard the arguments of the parties on this issue. We find that the Ld. CIT(A) has rightly calculated the eligible deduction from page no. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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