9911796707
TMI Blog2022 (7) TMI 945X X X X Extracts X X X X X X X X Extracts X X X X ..... lly before the due date/specified date referred in section 44AB r.w.r.t section 139(1) of the Act. We note that for claiming such deduction if assessee has filed return of income before the due date specified u/s. 139(1) of the Act applicable to the assessee and has not made the claim u/s. 80IA in the original return, such claim can be made in a valid revised return. We find that there is no dispute to the fact that the assessee has filed original return of income before the due date specified u/s. 139(1) of the Act, but failed to make the claim u/s. 80IA(4)(v) of the Act in the original return and claimed it in a valid revised return. However, in the above referred decision there is no reference to electronically filing the audit report on Form 10CCB before the due date prescribed under the Act. We need to find that whether audit report in Form 10CCB electronically duly verified/certified by the Chartered Accountants has been filed electronically before the due date of filing of return of income applicable to the assessee, being subject to audit u/s. 44AB of the Act. On perusal of records, we find that nowhere in the proceedings below this aspect of furnishing of audit re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by a Chartered Accountant electronically before the due date of filing of return of income and if yes, then even if assessee forgot to claim such deduction u/s. 80IA(4)v) of the Act in the original return of income filed before the due date of filing return, such claim made in the revised return may be allowed. In case of the contrary situation, where the assessee neither claimed deduction u/s.80IA(4)(v) of the Act in the return of income filed before the due date nor filed the relevant tax audit report [i.e Form No. 10CCB ] as per provisions of section 80IA(4(v) r.w. proviso to Rule 12(2) of the I.T Rules, 1962, then the assessee will fail to get such claim of deduction u/s. 80IA(4)(v) of the Act made in the revised return of income. Accordingly we direct the ld. AO to examine the factual aspect of assessee having furnished the tax audit report on Form 10CCB (Rule 18BBB) electronically as discussed above and decide the issue in accordance with law after giving reasonable opportunity of being heard to the assessee. We direct the assessee to furnish necessary details to ld.AO regarding proof of filing audit report on Form No. 10CCB u/s. 80IA(4)(v) of the Act electronically ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ismiss ground nos. II (a) and II (b). 4. The effective ground no. I (a) I (b) relates to claim of deduction u/s. 80 IA(4)(v) of the Act of the Act of Rs. 1,08,31,990/-. 5. Brief facts of the case confined to the issue before us are that the assessee is a limited company. It filed the original return of income on 25- 11-2016 declaring income at Rs.13,66,64.028/- and subsequently, revised this return on 31-03-2016 claiming deduction u/s. 80 IA(4)(v) of the Act at Rs. 1,08,31,990/- and declared income at Rs. 12,63,73,639/-. The case was selected for complete scrutiny and one of the reasons was the deduction claimed under Chapter VIA . During the course of assessment proceedings the Ld. AO observed that the assessee did not make any claim of deduction u/s. 80IA(4)(v) of the Act in the original return of income and made this claim only in the revised return. The Ld. AO in view of the provisions of section 80AC of the Act observed that the assessee could claim deduction u/s. 80IA(4)(v) of the Act only if it is made in the return of income furnished for such assessment year on or before the due date specified u/s. 139(1) of the Act. The Ld. AO accordingly denied the claim and ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim of deduction u/s. 80IA(4)(v) of the Act made by the assessee in the revised return of income. It is not in dispute that the assessee filed the original return of income before the due date of filing of return u/s. 139(1) of the Act, which in this case return was filed on 25-11-2014 as the extended due date was on 30-11-2014. It is also not in dispute that the assessee failed to make such claim of deduction u/s. 80IA(4)(v) of Rs.1,08,31,990/- in the original return of income and made the said claim subsequently in the revised return filed on 31-03-2016. 12. Now to examine the issues, we will first like to go through the relevant provisions of the I.T Act, 1961 as well as I.T Rules, 1962. Provisions of section 80IA(4)(v), 80IA(7) and 80AC of the Act have a direct bearing on this issue and the relevant provisions of section are reproduced below: 80-IA. (4) (v) an undertaking owned by an Indian company and set up for reconstruction or revival of a power generating plant, if- (a) such Indian company is formed before the 30th day of November, 2005 with majority equity participation by public sector companies for the purposes of enforcing the security interest of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm No. ITR-6 [or Form No. ITR-7] shall not be accompanied by a statement showing the computation of the tax payable on the basis of the return, or proof of the tax, if any, claimed to have been deducted or collected at source or the advance tax or tax on self-assessment, if any, claimed to have been paid or any document or copy of any account or form or report of audit required to be attached with the return of income under any of the provisions of the Act:] [Provided that where an assessee is required to furnish a report of audit specified under sub-clause (iv), (v), (vi) or (via) of clause (23C) of section 10, section 10A[, section 10AA], clause (b) of subsection (1) of section 12A, section 44AB [, section 44DA, section 50B], section 80-IA, section 80-IB, section 80-IC, section 80-ID, section 80JJAA, section 80LA, section 92E, [section 115JB, 5 [section 115JC] or section 115VW] [or to give a notice under clause (a) of sub-section (2) of section 11] of the Act, he shall furnish the same electronically.] 14. Now from going through the above provisions of section 80IA(4)(v), 80IA(7) and 80AC and Rule 18BBB(2) and Rule 12(2) of the I.T Rules, 1962, we observe that one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te specified u/s. 139(1) of the Act i.e. 30.11.2006. Thereafter, the assessee had filed revised return on 28.03.2008 wherein it claimed deduction u/s. 80lA 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. 80lA 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. 10A of the Act in its revised return. The case before the Hon'ble Special Bench was that the assessee had filed the return itself after the due date of filing the return and hence, the Hon'ble Special bench decided the issue against the assessee, which is not the case of the assessee before us. We find that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee has obtained such audit report before the prescribed due date, but failed to attach it with the Income-tax return, then in such situation consistent view has been taken by various judicial forums that such mistake by the assessee of not enclosing the audit report with the income-tax return is a procedural lapse, which can be cured even at the stage of assessment proceedings, where such audit report can be filed. However, subsequent to the amendments made in the Act audit report prescribed under the Act needs to be filed electronically on the Income-tax portal duly certified/verified by the Chartered Accountants. If such report is not furnished electronically before the due date prescribed under the Act for furnishing of such report, then such mistake cannot be considered as a procedural lapse because once report is to be filed electronically, then it will prove two things, firstly, assessee has obtained audit report before the due date and secondly, it is filed before the due date. Therefore, in case filing of audit report electronically there remains no option for the assessee to file such report at a later stage in the course of assessment proceedings and the assessee is m ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
