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TMI Blog2022 (3) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... nowhere it states that the claim should be made in the original return and not by way of original return - when the original return was filed within the due date, then the revised return filed, thereafter, before the completion of assessment proceedings, is to be considered by the AO, because the Act has given an opportunity to the Assessee to file his return u/s.139(4) of the Act for the removal of defects or omission in the original return. Here, in the present case, the Assessee has made a claim by filing a letter during the course of the Assessment proceedings and once the claim is made during the course of the assessment proceedings, the Assessing Officer has to consider the same and decide. We noted that there is no dispute as regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon by the learned CIT(A) are different from that of the Assessee and not applicable to this case. 4. The facts of the case, i.e. M/s. NTPC Vs CIT [1996] 229 ITR 383 (SC) relied upon by the learned CIT(A) are different from that of the Assessee and not applicable to Assessee's case." 3. The brief facts are that the Assessee is deriving income from wind-mills and is also engaged in design manufacture, supply and servicing of gears and gear boxes. The Assessee filed his return of income for the Assessment Year 2013 - 2014 on 30.09.2013 within the due date u/s.139(1) of the Act and during the assessment proceedings, the Assessee vide letter dated 17.09.2015 made a claim of deduction u/s.80IA of the Act in regard to profit derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee." 4. Aggrieved, the Assessee came in appeal before the Commissioner of Income Tax (Appeals). The Commissioner of Income Tax (Appeals) after considering various submissions, allowed the claim of the Assessee by observing in paragraphs no.5.4 and 5.5, as under: "5.4. Considering both the arguments, it is necessary to analyze the existing statutory provisions and the relevant decisions of the Courts. As per Section 80AC, the only mandatory requirement to become eligible for the claim of deduction is that the Assessee should file return of income as stipulated u/s.139(1) of the Act. The appellant company filed the return of income on 30.09.2013 which is within the due date. Hence, the appellant company is entitled to claim deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He also argued that the Assessing Officer on verification of Form No.10CCB also noted that the same has not been filed electronically and as per the requirement of Section 80IA (7) of the Act, the audit report is to be furnished electronically only. According to him, the Commissioner of Income Tax (Appeals) has wrongly relied upon the Coordinate Bench decision of Chennai in the case of ACIT, Company Circle-I(2), Coimbatore Vs. M/s. Precot Meridian Limited, Coimbatore in ITA No.1214/Mds/2012 dated 29th April, 2013. Further, he stated that the Commissioner of Income Tax (Appeals) has wrongly relied upon in the case of National Thermal Power Company Limited Vs. Commissioner of Income Tax reported in [1998] 229 ITR 0383 (SC). 6. On the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income Tax in Tax Ref. Case No.4 of 1988 dated 04.12.1996. [6] Commissioner of Income Tax Vs. Jayant Patel in Tax Case No.1742 of 1986 dated 21.09.1998. 7. The learned Counsel for the Assessee particularly referred to the decision of the Co-ordinate Bench of Mumbai Tribunal in the case of DCIT, Mumbai Vs. M/s. JSW Infrastructure Limited, Mumbai (supra), wherein exactly identical issue was considered and decided in favour of the Assessee, wherein the Tribunal vide paragraph no.9 as under: "9. We have heard both the parties, perused the material available on record and gone through the orders of the authorities below along with case laws cited by both parties. We find that the learned CIT(A) has recorded categorical findings, in l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings is to be considered by the Assessing Officer, because the Act has been given opportunity to the Assessee to file revised return u/s.139(4) for removal of any defect or any omissions in the original return and that if both the returns were filed within time limit prescribed under the law, then conditions prescribed u/s.80IB(1)) of the I.T.Act, 1961 are fulfilled. In this case, the Assessee has filed a return u/s.139(1) within due date specified date, but the claim for deduction u/s.80IA, in respect of second unit was not made, however a revised return was filed u/s.139(5) within due date specified under the Act and made additional claim for deduction, in respect of second unit. When original return was filed within due date spec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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