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TMI Blog2022 (5) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... ry to keep and maintain for smooth running of the business. How and why the assessee has not debited any administrative expenses even no any salary expenditures have been shown in the profit and loss account. Therefore, it would be proper to send back the issue to the file of the AO for determining the actual profit computed in the above trading and profit and loss account without incurring of any expenditures. Needless to say that the reasonable opportunity of being heard to be given to the assessee and the assessee is directed not to seek unnecessary adjournments for early disposal of the case.Appeal of the assessee is allowed for statistical purposes. - ITA No.41/Bang/2022 - - - Dated:- 13-5-2022 - Shri George George K, Judicial Member And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Smt. Sunaina Bhatia, C.A For the Revenue : Shri. Sankarganesh K, JCIT (DR) ORDER PER LAXMI PRASAD SAHU, ACCOUNTANT MEMBER This assessee s appeal for AY.2017-18 arises from the NFAC order dated 17-11-2021 passed in appeal No. ITBA/NFAC/S/250/2021-22/1037007246(1), in proceedings u/s.154 of the Income Tax Act, 1961 [in short, the Act ]. 2. The brief fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt Ltd Vs.JCIT 407 ITR 16 (Cal) [2018] that where the assessee failed to file return by the prescribed due date specified uls.139(1), its claim for deduction u/s.801B could not be allowed even though the return has been filed at a later stage. Similar view has been expressed by the ITAT Mumbai in the case of DCIT v. Siroya Developers 78 taxmann.com 19 [2017]. It has been held in many decisions by the High Courts and the Supreme Court that meaning arising out of plain words should be understood in the interpretation of statute On this very issue, the Hon'ble Supreme Court in the case of Prakash Nath Khanna V.CIT 266 ITR 1 (SC) has held that the expression In Due Time means the time limit uls.139(1). 4.7 The provisions of Sec.154 can be invoked only when there is a mistake apparent form record. It has been held by the Hon'ble Kerala High Court in the case of KKJ Foundation VS. ADIT (Exemption), Kochi 373 ITR 311 (2015) that it is clear that the power under Sec.154 can be invoked only to correct an error and not to disturb the concluded finding. It has also been held by the Hon'ble SC in the case of T.S Balram ITO Vs.Volkart Bros 82 ITR 50[1971] that a mistake app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is engaged in power generation and the Accountant has issued Form No.10CCB on 25/6/2018 for the impugned asst. year. Further, on perusal of the Form No.10CB in which the Accountant has clearly shown that the claim of the assessee u/s 80IA is of Rs.35,02,815/- and the assessee has also claimed in the original return u/s 139(1) of the Act for the same amount. The filing of Form No.10CCB is procedural aspect. A similar issue has been dealt by the coordinate bench of the Hyderabad Bench in the case of Delhi MSW Solutions Ltd., (Supra), which is extracted below:- 3. Both the ld.AR s take us to the CIT(A) s detailed discussion holding that the assessee is entitled for deduction u/s 80IA in issue reading as under:- 2. 1. Both the learned representatives take us to the CIT(A)'s detailed discussion holding the assessee is entitled for section 80 IA deduction in issue reading as under: 6. Considering the submissions made by the appellant in connection with the delay in filing of appeal, the delay is condoned and the appeal is decided on the merits as follows. The appellant has filed an appeal on account of disallowance u/s 80 IA while processing u/s. 143(1) of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80A(5) and 80AC are brought out as under: BOA(5), 'Where the assessee fails to make a claim in his return of income for any deduction under section l0A or section 1 OAA or section 1 OB or section 1 OBA or under any provision of this Chapter under the heading C. -Deductions in respect of certain incomes , no deduction shall be allowed to him there under.] 80AC. Deduction not to be allowed unless return furnished.- Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 St day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-LA or section 80-lAB or section 80-lB or Section 80-IC, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. A reading of the both sections 80A(5) and 80AC, it emerges that to make a claim u/s 801A, the assessee is simply required to file the return of income u/s 139(1) and the claim can be made in the revised return of income also i.e. there is no bar for making the claim even in the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn itself and not filing of documents along with the return. In the instant case before us, the assessee had filed the original return of income on 30.12.2017 which was before the due date specified u/s. 139(1) of the Act i.e. . Thereafter, the assessee had filed revised return on 25.06.2018 wherein it claimed deduction u/s. 801A of the Act. Since the assessee had filed its return of income before the due date specified u/s. 139(1) of the Act for the relevant year, the question of denying the benefit u/s. 801A of the Act does not arise. Hence, the decision of the Hon'ble Special Bench cannot be made applicable to the facts of the instant case before us. On the contrary, we find that the said decision is to be interpreted in favour of the assessee since the assessee had filed its return before the due date and as such, is eligible for deduction. It is not the case that the assessee before the Hon'ble Special bench had filed its original return before the due date of filing the return for the relevant year and claimed deduction u/ s. 1OA of the Act in its revised return. The case before the Hon'ble Special Bench was that the assessee had filed the ret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the ground no. 2 is allowed accordingly, and as substantive relief has been granted to the appellant, the other grounds no. 3, 4, 5 and 6 become academic for adjudication and hence am adjudicated. 2.2. Smt. Sunaina Bhatia, C.A vehemently contended during the course of hearing that the CIT(A) has erred in law and on facts in treating assessee as eligible for sec. 80 IA relief despite the fact that it had not filed Form 10CCB along with the original return. 2.3. Learned authorised representative on the other hand drew our attention to the clinching facts inter alia that the assessee had very well raised its sec. 80 IA deduction claim with original return filed u/s 139(1) followed by its revised return along with form 10CCB which was processed u/s 143(1) of the Act disallowing the above relief. This clinching fact has gone unrebutted from department side. Coupled with this, we also wish to reiterate here that sec.80 IA r.w.s. 80 IA (7) expressly provides for the impugned relief. We therefore quote hon'ble apex court's landmark decision in IKV Pillai vs. CIT (1967) 63 ITR 411 (SC) to express our complete agreement with the CIT(A)'s detailed discussio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore the appellant was eligible for deduction u/ s. 80 IA in view of various judicial rulings with regard to 80AC, which places the clauses for the denial of deduction, if the returns are not filed within the due date. The appellant further filed a grievance petition on 09.04.2018 by raising this contention as brought out in the above paragraph, to which the communication was received that the Form No. 10CCC/10CCB was not filed. The appellant has contended that this action u/s 143(1) is illegal and therefore the addition made u/s 143(1) should be deleted accordingly. There are two issues which emerge' out of the whole discussion, the first issue is regarding the eligibility of the deduction u/s. 80 IA based on a return which has been filed after the filing of original return and the filing of Form 10CCB. The provisions of section 80A(5) and 80AC are brought out as under: BOA(5), 'Where the assessee fails to make a claim in his return of income for any deduction under section l0A or section 1 OAA or section 1 OB or section 1 OBA or under any provision of this Chapter under the heading C. -Deductions in respect of certain incomes , no deduction shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Saffire Garments Vs. ITO reported in (2012)28 taxman.com 27 (Rajkot S.B) dated 30.11.2012 to the facts of the instant case. We find that the Hon'ble Special bench observed that the proviso to section 1 OA(1A) of the Act states that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sec. 139(1) of Act and accordingly, it was held that the above proviso is mandatory and not directory. The Hon'ble Special Bench distinguished catena of cases relied on by the assessee and held that those decisions were in different context, viz., filing of audit report, form No. 10 CCB etc. and hence, were not applicable to the assessee. While distinguishing the cases, the Hon'ble Special Bench observed that in the instant case the issue was filing of return itself and not filing of documents along with the return. In the instant case before us, the assessee had filed the original return of income on 30.12.2017 which was before the due date specified u/s. 139(1) of the Act i.e. . Thereafter, the assessee had filed revised return on 25.06.2018 wherein it claimed deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturn. Therefore, the case of the appellant is much better than of the issue discussed above, wherein the claim was made for the first time in the revised return and therefore in that case 1OCCB obviously was filed for the first time in the revised return. Therefore, in the present case only the claim was revised regarding deduction u/s 801A in the revised return and Form No. 10CCB was filed for the first time in the revised return. Thus, the case of the appellant is a sub set of the case discussed above, wherein the deduction u/s. 801A was allowed. The above being factual position of law would not need any interpretation and therefore the claim u/s. 801A cannot be disallowed while processing u/s 143(1) of the Income Tax Act, 1961. In view of the above, the AO is directed to allow the deduction u/s. 801A as claimed. Therefore, the ground no. 2 is allowed accordingly, and as substantive relief has been granted to the appellant, the other grounds no. 3, 4, 5 and 6 become academic for adjudication and hence am adjudicated. 2.2. Smt. Sunaina Bhatia, C.A vehemently contended during the course of hearing that the CIT(A) has erred in law and on facts i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By Sales To Manincery maintenance 3.469.851 Wind electricity charges 7,165,946 To Consultancy 2.300 By Closing Stock 0 To Fire Insurance 32.637 To Interest on Bascom Bill discount 158.343 TO Depreciation To Net Profit 3,502,815 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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