10. [2019] 72
ITR 402 (Trib.) (Chand.) Himuda vs. ACIT ITA Nos.: 480,
481 & 972/Chd/2012 A.Ys.: 2006-07,
2007-08 & 2009-10 Date of order:
10th May, 2019
Section
80-IB(10) – Deduction u/s 80-IB(10) cannot be denied even if the return of
income is filed beyond the due date u/s 139(1) owing to bona fide
reasons
FACTS
The assessee
filed his return of income beyond the due date u/s 139(1). Later, he filed
revised return claiming deduction u/s 80-IB(10). The AO rejected this claim for
the reason that the original return had been filed beyond the due date
specified u/s 139(1). The Commissioner (Appeals) also confirmed the action. The
assessee therefore appealed to the Tribunal.
HELD
The first factual observation made by the
Tribunal was that the delay in filing return of income was on account of the
local audit department and an eligible deduction cannot be denied due to
technical default owing to such bona fide reason.
Based on a
harmonious reading of sections 139(1), 139(5) and 80AC, the Tribunal considered
various decisions available on the issue:
(i) DHIR
Global Industrial Pvt. Ltd. in ITA No. 2317/Del/2010 for A.Y. 2006-07;
(ii) Unitech
Ltd. in ITA No. 1014/Del/2012 for A.Y. 2008-09;
(iii) Venkataiya
in ITA No. 984/Hyd/2011;
(iv) Hansa
Dalkoti in ITA No. 3352/Del/2011;
(v) SAM
Global Securities in ITA No. 1760/Del/2009;
(vi) Symbosis
Pharmaceuticals Pvt. Ltd. in ITA No. 501/Chd/2017;
(vii) Venkateshwara Wires Pvt. Ltd. in ITA No.
53/Jai/2018.
The Tribunal applied the ratio of the above decisions to the
facts of the case and allowed the assessee’s claim of deduction u/s 80-IB,
primarily on the basis of the following three judgements:
(a) National
Thermal Power Company Ltd. vs. CIT 229 ITR 383;
(b) Ahmedabad
Electricity Co. Ltd. vs. CIT (1993) 199 ITR 351 (FB);
(c) CIT vs.
Pruthvi Brokers and Shareholders Pvt. Ltd. (2012) 349 ITR 336 (Bom.).
In all these
decisions, the courts have held that the appellate authorities have
jurisdiction to deal not merely with any additional ground which became
available on account of change of circumstances or law, but also with
additional grounds which were available when the return was filed.
In National
Thermal Power Company (Supra), the Supreme Court observed that the Tribunal
is not prevented from considering questions of law arising in assessment which
were not raised earlier; the Tribunal has jurisdiction to examine a question of
law which arises from the facts as found by the authorities below and having a
bearing on the tax liability of the assessee.
Besides, the
full bench of the Hon’ble Bombay High Court in the cases of Ahmedabad
Electricity Company Ltd. vs. CIT and Godavari Sugar Mills Ltd.
vs. CIT (1993) 199 ITR 351 observed that either at the stage of CIT(A)
or the Tribunal, the authorities can consider the proceedings before them and
the material on record for the purpose of determining the correct tax
liability. Besides, there was nothing in section 254 or section 251 which would
indicate that the appellate authorities are confined to considering only the
objections raised before them, or allowed to be raised before them, either by
the assessee or by the Department as the case may be. The Tribunal has
jurisdiction to permit additional grounds to be raised before it even though
these might not have arisen from any order of a lower appellate authority so
long as these grounds were in respect of the subject matter of the tax
proceedings. Similar ratio was held by the Bombay High Court in CIT
vs. Pruthvi Brokers and Shareholders Pvt. Ltd. (Supra).
The Tribunal
further observed that the decision of the Hon’ble Supreme Court in the case of Goetze
(India) Limited vs. CIT (2006) 287 ITR 323, relating to the restriction
of making the claim through a revised return was limited to the powers of the
assessing authority only and not the appellate authority.
An assessee cannot be burdened with the
taxes which he otherwise is not liable to pay under the law.
