TaxTMI 
TaxTMI 
2017 (8) TMI 730
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....s, Aluminium structures, Canopy/Building fascia and cladding components and panels etc. It has a manufacturing unit set-up at Sitarganj, District Uddham Singh Nagar, Uttarakhand. It is stated that the profits from the said unit are eligible for 100% deduction under Section 80IC of the Act from AY 2010-11. 3. The Petitioner states that for the AY in question, the return in terms of Section 139 (1) of the Act ought to have been filed by it by 30th September, 2011. However, the return was filed with a delay of 46 days on 16th November, 2011. The reason furnished by the Petitioner for the delay is that a majority of the contract receipts was subject to deduction of tax at source under Section 194C of the Act and there was a delay in receiving TDS certificates. It is also claimed that there was a TDS mismatch inasmuch as the TDS appearing in its records was different from the TDS appearing in Form 26AS. The reconciliation of the TDS involving Government contract was stated to be "an extremely time consuming exercise." 4. The Petitioner states that no intimation under Section 143 (1) of the Act about filing of the above return was received by it from the Income Tax Department withi....
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....assessee wants to avail deduction u/s. 80IC he has to necessarily furnish his return of income containing such claim before he due date specified in section 139(1). Hence, the claim of deduction u/s. 80IC on the income of the assessee, amounting to Rs. 2,62,49,797/- is not allowable and has to be taxed as income under the head business income of the assessee. In view of the foregoing facts and observations, I have reason to believe that income has escaped assessment within the meaning of the provisions of section 147 of the Act. Further, this case has not been assessed u/s. 143 (3) of the Act and as such the provisos to section 147 are in applicable in this case." Further proceedings 7. The Petitioner states that even as it was preparing to file objections to the re-opening of the assessment, it was served a further notice dated 18th June, 2014 under Section 142 (1) of the Act calling for information. This was followed by a show cause notice dated 26th June, 2014 issued by the AO seeking to levy a penalty under Section 271 (1) (b) of the Act. 8. It is also stated by the Petitioner that at the hearing before the AO on 18th July, 2014 it was handed over the intimation und....
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.... petitions 13. Be that as it may, in both the writ petitions for the first time on 27th April, 2015, notice was issued by this Court. Since the assessment order had already been passed by this time, which is challenged in the present writ petition, the Court observed in the said order that "The pendency of these writ petitions shall not come in the way of the petitioner to file an appeal against the assessment order. In the meanwhile, no coercive measures be taken." 14. On 15th March, 2017, the Court recorded the submission of the counsel for the Respondent that "there is no need for counter in view of the fact that deduction under Section 80IC was not given in the first instance, when intimation was given to the assessee under Section 143(1) of the Income Tax Act, 1961. In the circumstance, it appears that notice under Section 148, was redundant." 15. When the matter was listed next on 17th May, 2017, the Court's attention was drawn to Section 119 (2) (b) of the Act, which enabled the Central Board of Direct Taxes ('CBDT') "if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases" to grant relief, inter alia, regarding....
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....o challenge the said order dated 9th August, 2017 passed by the CBDT declining to condone the delay of 46 days in filing the return for AY 2011-12 in this petition itself. Accordingly, learned counsel for the parties have been heard on this challenge as well. Submissions of counsel for the Department 18. It was pointed out by Mr. Rahul Chaudhary, learned Senior Standing Counsel for the Department that a Division Bench of this Court in Nath Brothers Exim International Ltd. v. Union of India (2017) 394 ITR 577 (Del) had negated the challenge to the constitutional validity of Section 80AC of the Act which stipulates the time limit within which the return has to be filed if deduction under Sections 80 IB and 80 IC is claimed. Mr. Chaudhary submitted the question of delay in filing a return where deduction under Section 80IC of the Act is claimed has been viewed differently from a case where such deduction is not claimed. Mr. Chaudhary further sought to explain that Circular No.9/2015 dated 9th June, 2015 issued by the CBDT regarding condonation of delay in filing returns was not meant to apply to returns where a deduction was claimed under Section 80 IC of the Act. Submissions....
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....ith the Assessee. The AO held that there was no justification for the delay in filing returns. On merits, the AO disallowed the claim of the Assessee under Section 80IC of the Act for two reasons. First that the Assessee was not manufacturing any article or thing as contemplated under Section 80IC of the Act. Secondly, no separate P&L Account and balance sheet regarding its unit at Sitarganj was produced by it to justify the profit claimed. 23. The CIT (A) in the order dated 14th January, 2015 for AY 2010-11 agreed with the AO that the process adopted by the Assessee could not be termed as a manufacturing process as no new product had come into being. Also, the Assessee had failed to file the audit report within time. The CIT (A) too, therefore, held that the Assessee was not eligible for deduction under Section 80IC of the Act. Order of the ITAT for AY 2010-11 24. The Assessee went in appeal to the ITAT against the aforementioned order of the CIT (A) dated 14th January, 2015 for AY 2010-11. The three issues considered by the ITAT in the said appeal ITA No. 1853/Del/2015, as noted in its order dated 25th February, 2016 as under: "(a) Whether any activity actually carrie....
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....event the Department is able to succeed in demonstrating in ITA No. 405 of 2016 that the delay in the Petitioner filing its return for AY 2010-11 could not have been condoned, the Petitioner's claim for deduction under Section 80 IC of the Act for that year would automatically fail. 29. It is not for this Court to speculate what might happen in ITA No. 405 of 2016. Nevertheless, it is undeniable that the Department has even for AY 2010-11 accepted that on merits the Petitioner's claim for deduction under Section 80 IC of the Act was justified. With there being no change in the circumstances, the Petitioner's claim for deduction under Section 80 IC of the Act on merits for the next year i.e. AY 2011-12 cannot possibly be denied. 30. The above facts were not considered by the CBDT when it rejected the Petitioner's application under Section 119 (2) (b) of the Act. The application made by the Petitioner before the CBDT pursuant to the order passed by this Court was a detailed one. The Petitioner pointed out that in all the subsequent years, i.e., AY 2012-13 up to 2016-17, there was no delay whatsoever in the filing of the returns. It also pointed out that since the Petitioner....