TaxTMI 
TaxTMI 
2017 (8) TMI 331
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....ppellant is clearly not eligible for deduction u/s. 80IB of the Act. The finding overlooks the documentary evidence tendered by the appellant to establish that appellant is eligible for deduction U/S 80IB of the Act. 1.2 That the learned Commissioner of Income Tax (Appeals) has further erred in sustaining the disallowance on the ground that the return was filed beyond the due date by the appellant company. 2. That the learned Commissioner of Income Tax (Appeals) has further erred both in law and on facts in confirming the levy of interest under sections 234A and U/S 234B of the Act. It is, therefore, prayed that, disallowance sustained U/S 80IB of the Act alongwith interest levied may kindly be deleted and appeal of the appellant company be allowed." 3. The brief facts of the case are as per the order of the AO vide paragraphs 3 to 3.4, pages 1 to 4, reproduced hereinbelow: "3. During the year the assessee has shown gross total income of Rs. 19,34,080/- and after claiming deduction under chapter VIA of Rs. 5,80,225/- net income of Rs. 13,53,860/- has been shown as taxable income. The assessee has claimed deduction u/s.80IB of Rs. 5,80,225/- ....
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....bottling of IMFL in the State of J&K w.e.f. 14.02.2003. During the period under consideration, the assessee, besides its normal business, had carried out trading in computer parts, textiles and papers. The assessee has claimed deduction u/s 80IB to the tune of Rs. 5,80,2251- but, the assessee 'does not fulfill the condition to claim the deduction u/s 801B of Income-tax Act, 1961. Accordingly, assessee was asked to explain why deduction claimed u/s 801B of the Act should not be disallowed as the assessee company is falling under the purview of Schedule XIII Part C and proviso to sub-section 4 of section 801B which clearly stipulates that no deduction under this sub-section shall be allowed to an industrial undertaking in the state of Jammu & Kashmir. which is engaged in the manufacture & production of any article or thing* specified in part-C of the thirteenth Schedule. In response, the assessee has filed a decision of the High Court. of Chennai clarifying that blending and bottling of IMFL amount to "manufacture" for the purposes of claiming deduction under section 801B of Income-Tax Act, 1961. But, the assessee has failed to appreciate that the case referred to in the decision....
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..../s.154 of the Act; therefore, the notice u/s.154 and order passed are illegal, bad in law and without jurisdiction and grounds raised are allowed." 6. In the same order, the ITAT Delhi 'E' Bench for the assessment year 2008-09 following the order of assessment year 2007-08 and allowed the claim of the assessee for the relevant assessment year 2008-09. Following the decision of Hon'ble Delhi High Court in the case of Delhi Patra Prakash, 355 ITR 14 (Del) and also the decision of Hon'ble Supreme Court in the case of Shasun Chemicals and Drugs Ltd. Vs. CIT, 388 ITR 1 (SC) and the relevant decision of ITAT Delhi 'E' Bench is reproduced hereinbelow: "We have already held while disposing off ITA No. 5304/D/2012 that order made u/s.143(3) of the Act dated 30.12.2009 for AY 2.007-08 entitling the deduction u/s 80IA of the Act was valid and could not be subject matter of rectification u/s 154 of the Act. The consequent effect of the aforesaid finding is that claim made u/s. 80IA of the Act stands allowed in the: *initial assessment year 2007-08 in assessment framed U/S 143(3) of the Act. The Hon'ble Delhi High Court In the case of CIT v. Delhi Patra Prakash Ltd. 355 ITR 14 (....
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....sessee in respect of the assessment year (referred to as the initial assessment year) relevant to the previous year in which the industrial undertaking begins to manufacture or produce articles or things, or to operate its cold storage plant or plants or the ship is first brought into use or the business of the hotel starts functioning or the company commences work by way of repairs to ocean going vessels or other powered craft. Such deduction is also available for the seven assessment years immediately succeeding the initial assessment year. Surely in cases where an assessee is held to be eligible for deduction in the initial assessment year, the same cannot be denied in the subsequent assessment years on the ground of ineligibility since the set of facts which enable an assessee to claim to be eligible for deduction under section 80I of the Act occur in the previous year relevant to the initial assessment year and have to be examined in the initial assessment year. In matter of an earlier assessment year and do not arise in the current assessment year, it would not be possible for an Assessing Officer to take a different view in the current assessment year without altering or reo....
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....htra Cement & Chemical Industries (supra) is quoted below:- "The next question to which the Tribunal addressed itself, and no our opinion rightly, was whether the Tribunal was justified in refusing to continue the relief of tax holiday granted to the assessee-company for the assessment year 1968-69, in the assessment year under reference, that is, 1969-70, without distributing the relief granted for the initial year. It should be stated that there is no provision in the scheme of s.80J similar to the one which we find in the case of development rebate which could be withdrawn in subsequent years for breach of certain conditions. No doubt, the relief of tax holiday under section 80J can be withheld or discontinued provided the relief granted in the initial year of assessment is disturbed or changed on valid grounds. But without disturbing the relief granted in the initial year, the ITO cannot examine the question again and decide to withhold or withdraw the relief which has been already once granted 79. The division bench of the Bombay High Court in the case of Paul Brothers (supra) has also adopted the view expressed by the Gujarat High Court in the case of Sauras....
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.... passed by the ld. CIT(A) is set aside and AO is directed to allow the claim of the assessee for deduction u/s.80IB of the Act." 8. Therefore, in all the circumstances and facts of the case and decision of Hon'ble ITAT Delhi Bench reproduced hereinabove, the claim of the assessee u/s.80IB is allowable and the order of the learned CIT(A) is reversed accordingly. 9. As regards the issue with regard to the filing of the original return and the revised return. It was pointed out by the learned counsel for the assessee Mr. Gautam Jain, Advocate that original return was filed on 30th September, 2009 and the acknowledgement is placed at paper book page 1 and revised return was filed on 30.12.2009 available at paper book page 25. The issue raised before the AO and the learned CIT(A) is that the original return claimed to have been filed on 30th September, 2009, in fact is no return where all the columns have been filed in as zero and that is simply an acknowledgement downloaded from the ITD system, and therefore, for all practical purpose the return filed on 30th September, 2009 is the original return which is belated return, therefore, no claim u/s.80IB can be allowed. 10. In thi....