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TMI Blog2023 (4) TMI 287X X X X Extracts X X X X X X X X Extracts X X X X ..... Vasudevan, Advocate For the Respondent : Shri. P. Sajit Kumar, JCIT ORDER PER MANJUNATHA. G, ACCOUNTANT MEMBER: This appeal filed by the assessee is directed against the order passed by the Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi, dated 06.12.2022 and pertains to assessment year 2017-18. 2. The assessee has raised the following grounds of appeal: 1. The order of the CIT (Appeals) NFAC, Delhi dated 06.12.2022 in DIN and Order No. ITBA/NFAC/S/250/2022-23 / 1047835762 (1) for the Assessment Year 2017-18 is contrary to Law and facts in the circumstances of the case. 2. CIT (A), NFAC, DELHI erred in confirming the disallowances of the claim u/s 80(I)(A) of the Act, by the DCIT, CPC, Bangalore for want of Audit Report in Form No. 1 0CCB while processing the return of Income for issuing intimation order dated 09.03.2019 without appreciating the fact that Audit Report under Section 1 0CCB dated 10.09.2017 could not be uploaded due to technical and Server issues. 3. Both DCIT,CPC, Bangalore and CIT (Appeals) NFAC, Delhi failed to appreciate the fact that fresh Form No.1 0CCB has been filed electronically unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f deduction U/S80IA 11. The Assessing Officer and the CIT (Appeals) NFAC, Delhi erred in without disallowing the ESI, PF payments amounting to Rs.299360/- appreciating the fact that your appellants have deposited contributions of employer and employee towards Provident Fund and ESI beyond due date prescribed under relevant Acts, but before due date of filing the return of Income under section 139(1). 3. The brief facts of the case are that, the appellant is a partnership firm engaged in the business of manufacture and sale of cotton yarn. The appellant had filed its return of income for the assessment year 2017-18 on 24.10.2017, admitting a total income of Rs. 61,23,360/-, after making a claim of deduction u/s. 80IA of the Income-tax Act, 1961 (hereinafter referred to as the Act ) amounting to Rs. 58,15,804/-. The appellant had also filed tax audit report as required u/s. 44AB of the Act in Form no. 3CB 3CD on 24.10.2017. However, the report of an Accountant as required u/s. 80IA of the Act, in form no. 10CCB has been electronically filed on 18.05.2018. The return of income filed by the assessee has been processed by the AO, CPC, Bengaluru and issued intimation u/s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th return of income before the due date prescribed under the law, the AO has rightly disallowed deduction claimed u/s. 80IA of the Act and their order should be upheld. 7. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. There is no dispute with regard to the fact that the assessee has filed return of income on 24.10.2017, which is on or before due date prescribed u/s. 139(1) of the Act. It is also an admitted fact that the assessee has claimed deduction u/s. 80IA of the Act, in the said return of income filed for the relevant assessment year on or before due date prescribed u/s. 139(1) of the Act. Admittedly, the assessee has filed Form no. 10CCB on 18.05.2018, which is much before the AO issued intimation u/s. 143(1) of the Act on 09.03.2019. In other words, the audit report in Form no. 10CCB was made available to the AO before he completes the assessment u/s. 143(1) of the Act. From the above, it is very clear that although, the assessee did not file Form no. 10CCB, along with return of income on or before due date prescribed u/s. 139(1) of the Act, but said audit report was made available to the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on 23.05.2019 when the audit report in Form No.10CCB was available with the Department. It means that the Department has disallowed the claim of deduction even though the assessee was entitled for claim of deduction. This issue has been covered in favour of assessee and against the Revenue by the decision of the Co-ordinate Bench of the Tribunal in the case of ACIT vs. Shanthi Gears Ltd., in ITA No.3068/CHNY/2017, order dated 04.03.2022, wherein the Tribunal considered various case laws considered this issue vide para's 6 to 8 as under: 6. On the other hand, the learned Counsel for the Assessee however read out the relevant provision of Section 80AC of the Act and the relevant reads as under: 80AC : Where in computing the total income of an Assessee of the previous year relevant to the Assessment Year commencing on the 1st day of April, 2006 or any subsequent assessment year; any deduction is admissible under section 80/A or section 80/AB or section 8018 or section 80/C (or section BOID or section BOIE), 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-sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where it was held that, once original return is filed u/s.139(1) within due date specified under the Act, then any deduction claimed in the revised return filed within due date specified u/s. 139(5) shall be allowed. We further, noted that the learned CIT(A) had also taken a support from the decision of /TAT, Mumbai Bench, in the case of Kamadhenu Builders Developers Vs. Additional CIT, where it was observed that section 80A(5) only requires filing of return, but nowhere it suggest that claim should be made in the original return and not by way of original return, further when the original return of income was filed within the due date, then the revised return filed, thereafter before completion of assessment 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.80/B(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 clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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