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TMI Blog2022 (1) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... inevitable conclusion that the return of income so filed by the assessee in the present case within the time specified in sub-section (4) of Section 139 of the Act has to be considered as filed within the time prescribed in sub-section (1) of Section 139 of the Act. Thus, on this ground, no disallowance U/s 80IB of the Act was warranted. Thus, the assessee succeeds on this account. Non-submissions of completion certificate - We found from the record that the approval of the construction of the said project was granted in favour of the assessee on 31/01/2006 i.e. in A.Y. 2006-07 and thus, in this way, the construction ought to have been completed till A.Y. 2011-12. Since the assessee could not place on record the completion certificate, therefore, in absence of the said completion certificate, the claim of the assessee was denied u/s 80IB We found that the ld. CIT(A) under the identical facts and circumstances on the basis of completion certificate of the architect and other circumstantial evidences, allowed the appeal of the assessee by relying upon the decision of case of New High Rise Construction 2017 (3) TMI 1329 - ITAT NAGPUR]. Thus, in our view, as far as the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Mani used to reside with his wife, she had very little knowledge of record keeping of Mr. M Mani. In the meantime, I met with an accident where my left leg was fractured and I was confined to bed for almost six months. If required, I can file entire sets of medical reports and affidavit. It was only when I started working on daily routine, I visited Mr. Mani s house searched for file but same was not traceable. Now I am filing an appeal after obtaining a photocopy of same from the department. It is because of all this reason and because of the fact that I met with an accident, I was not able to file an appeal in time. It is my humble submission that this delay may please be condoned and I may be given a reasonable opportunity to present my case. For this act of kindness, I shall always remain obliged. 3. On the other hand, the ld DR could not rebut the facts submitted by the assessee before us for seeking condonation of delay. 4. We have heard the rival contentions and pursued the material available on record. There is no dispute and is an admitted fact that there has been a delay in filing the present appeal by 363 days. There is also no dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it has applied for settlement of present dispute and payment of appropriate taxes. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. 6. In light of aforesaid discussions, in exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfied that there was sufficient cause for not presenting the appeal within the prescribed time and the appeal is hereby admitted for adjudication on merits. 7. Brief facts of the case are that return of income for the year under consideration was filed by the assessee on 27/10/2009 declaring total income of ₹ 3,43,630/-. Later on, the case was selected for scrutiny through CASS and accordingly, after serving statutory notices and seeking reply of the assessee, the A.O. made disallowance U/s 80IB of the Act as claimed by the assessee. 8. Being aggrieved by the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (4) has to be considered as having been made within the time prescribed in sub-section (1) or sub-section (2) of section 139. In other words, if a return is filed within the time specified in sub section (4) of section 139 and the option contemplated by the Explanation to section 11(1) is exercised in writing along with such return, the requirements of the Explanation to section 11(1) would stand satisfied, Sukhkarta Developers and Builders Vs PCIT (Nagpur) (Trib) 596 597/Nag/2016 dated 01/08/2018 (Paper book page No 53) In this case, the issue before the Hon'ble Jurisdictional Nagpur Tribunal, was regarding assumption of jurisdiction under section 263, as the Assessee has filed return of income under section 139(4) and not under section 139(1) as stipulated by section 80AC. The Tribunal relied on the aforementioned judgment of the Jurisdictional High Court in the case of Trustee of Tulsidas Gopalji Charitable and Chaleshwar Temple Trust Vs CIT (207 ITR 368) (Bom)(HC) and stated that belated return filed under section 139(4) should be treated as return filed under section 139(1). Para 12 and 13 of the Judgment (Paper book Page No 58) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9(4) will be treated as sufficient compliance. Para 16 of the Judgment (Paper book, Page No 73) 16. After having gone through the facts of present case and after perusing the submissions of both the parties we found that identical issue has already been decided by the Coordinate Bench of the Tribunal in the case of Uma Developers (supra) wherein it was categorically held that the claim of the assessee cannot be disallowed under section 80IB(10) of the Act only on the ground that the return of income was filed beyond the period stipulated under section 139(1) of the Act in view of the provisions of Section 80AC of the Act as the same is beyond the scope of Section 139(1) of the Act the submission of return within time as specified under sub section (4) of section 139 has to be taken as sufficient compliance for the provision of the Income Tax Act, 1961, as it was expounded that the sub section (1) and sub section (4) of section 139 have to be read together. M/s Symbiosis Pharmaceuticals P.Ltd Vs DCIT (Chandigarh] (Trib) 501, / Chd/ 2017 dated. 04/10/2017. In this case, before the Tribunal, the assessee has filed audit report in time, but belated filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Tribunal in the case of New High Rise Construction. * Therefore, as far as the completion of the project, the issue is no more res-integra. [ Photocopy of CIT(A) order for A.Y. 201011 is available on page no 9 of Paper book, operating paragraph 6.2.4 is at page no 22 of the paper book]. * Therefore, as the project is completed in 2011 and the same fact is already on record, the appellant has complied with all the conditions of the section 80IB. Considering the fact that the appellant has substantially complied with all the provisions. We humbly request your kindness to allow appellant benefit of the benevolent provisions of section 80IB. For this act of kindness, the appellant shall always remain obliged. 12. On the contrary, the ld. DR has relied upon the orders of the authorities below. 13. We have considered the rival contentions and carefully perused the material placed on record. From the facts, we noticed that initially the assessee claimed deduction U/s 80IB of the Act. However, the said claim of the assessee was rejected by the A.O. on two reasons i.e. (i) that the return of income was required to be filed by the assessee U/s 139(1) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll as after having gone through the documents placed on record by the ld. AR by way of paper book, we found that although there was delay of 27 days on the part of assessee for filing the return of income but audit report was filed by the assessee in time and this fact has not been disputed by the ld. DR. We have further noticed that delayed filing of return of income was within the time limit prescribed U/s 139(4) of the Act which according to us is a sufficient compliance for the purpose of Section 80AC of the Act. In this regard, we draw strength from the decision of the Hon ble Bombay High Court in the case of Trustee of Tulsidas Gopalji Charitable and Chaleshwar Temple Trust Vs CIT (207 ITR 368) (Bom)(HC) wherein it was held as under: 5. On a careful reading of section 139 we are of the clear opinion that sub sections (1) and (4) of section 139 have to be read together and on such a reading, the inevitable conclusion is that a return made within the time specified in sub-section (4) has to be considered as having been made within the time prescribed in sub-section (1) or sub-section (2) of section 139. In other words, if a return is filed within the time specified in su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of Section 139 has to be taken as sufficient compliance in the provisions of the Act as it was expounded that sub-section (1) and sub-section (4) of Section 139 have to be read together. Thus, keeping in view the above settled provisions of law, we reach to an inevitable conclusion that the return of income so filed by the assessee in the present case within the time specified in sub-section (4) of Section 139 of the Act has to be considered as filed within the time prescribed in sub-section (1) of Section 139 of the Act. Thus, on this ground, no disallowance U/s 80IB of the Act was warranted. Thus, the assessee succeeds on this account. 15. Now the second ground for disallowance of deduction U/s 80IB of the Act to the assessee was on account of non-submissions of completion certificate. In this regard, the ld AR has drawn our attention to the crucial facts of the case that the assessee s housing scheme was constructed in the Bhilgaon Village on the outskirts of Nagpur City and the approval for the construction of the said scheme was obtained by the assessee 31/01/2006 i.e. in A.Y. 2006-07 and the said approval was taken from the Gram Pacnhayat of Bhilgaon in 2006 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstantial evidences, allowed the appeal of the assessee by relying upon the decision of the Nagpur Tribunal in the case of New High Rise Construction Vs. ITO (supra). Thus, in our view, as far as the completion of projection is concerned, the issue is no more resintgra as the Revenue in the subsequent assessment year have thus admitted that the project of the assessee in question was completed in 2011 and the assessee had complied with all the conditions of Section 80IB of the Act. Thus, in order of maintain consistency, we also relied upon the decision of the Coordinate Bench of the ITAT in the case of New High Rise Construction Vs. ITO ITA No. 285/Nag/2015 order dated 18/01/2017 wherein the architect s certificate and other circumstantial and indirect evidences were held to be sufficient for the purpose of allowing deduction U/s 80IB (10) of the Act. Thus, considering the totality of facts and circumstances of the case, we restore this issue back to the file of the A.O. with direction to consider architect s certificate and other circumstantial and indirect evidences put forth by the assessee and in case, the assessee fulfills the conditions as laid down by the Coordinate Bench o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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