TaxTMI 
TaxTMI 
2019 (5) TMI 845
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....at the return has been revised/filed late the provisions of Section 139(5) and Section 80 AC is attracted and as such the entre claim of Rs. 23374215/- has been rejected. b. That the provision of Section 80AC read with 139(5) were not applicable in the relevant assessment year. The said section was inserted by the Finance Act 2006 that is with effect from 01.04.2006 relevant to assessment year 2007-08. c. That the Ld A.O. and the CIT (A) has erred in fact and law by not going through the reasons for filing the returns late. Ground No 2 Transfer Charges of Rs. 237 16888/- Lacs a) The Ld AO has not appreciated the facts and has treated the same a revenue receipts, whereas these are akin to compensation received to cover development costs etc after completion of the project. The quantum is dependant on contingent happenings of an event on which the assesee does not have any control. These are unforeseen capital receipts which are non recurring in nature and the colony occupiers have a direct interest in the same and the receipts are to be used for their benefit itself. b) The case of Bomaby Burmah Trading Corp. 161 ITR 386 which ha....
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....in fact and law by proceeding with ex parte orders in the said case. The chronology of event is as per statement of facts mentioned above from which it amply clear that the Ld CIT(A) has defied all canons of natural justice. Ground No 2) Transfer Charges of Rs. 30296659/- Lacs Transfer charges denote revolving part of the unearned surplus generated from transfer of property by third parties, which It is used to incur expenditure towards general upkeep, unforeseen expenses like reconstruction of retaining walls, paths, parks etc., repair and maintenance and providing basic civic amenities. It by no means can be regarded as revenue. This being a capital/Fund receipt should not have been added to income. Ground No 3) Contribution towards Pension The Contribution towards genuine employee welfare scheme should have been allowed as the Trust made For this purpose stands registered with the Income Tax Department, under Schedule IV of the Income Tax Act. The copy of acknowledgment furnished was shown to the assessing officer during the course of assessment, but was ignored. 3. These appeals have been filed on 09/08/2017 and dismissed due to n....
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....nder: 139. (1) Every person,- (a) being a company or a firm; or (b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed: Provided that a person referred to in clause (b), who is not required to furnish a return under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or at any time during the previous year fulfils any one of the following conditions, namely :- (i) is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be....
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....rity in any account located outside India; or (b) is a beneficiary of any asset (including any financial interest in any entity) located outside India, shall furnish, on or before the due date, a return in respect of his income or loss for the previous year in such form and verified in such manner and setting forth such other particulars as may be prescribed: Provided also that nothing contained in the fourth proviso shall apply to an individual, being a beneficiary of any asset (including any financial interest in any entity) located outside India where, income, if any, arising from such asset is includible in the income of the person referred to in clause (a) of that proviso in accordance with the provisions of this Act: Provided also that every person, being an individual or a Hindu undivided family or an association of persons or a body of individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year, without giving effect to the provisions of section 10A or section 10B or section 10BA or Chapter VI-A ....
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....ided by any person other than such beneficiary. 7. Before us, the Ld. AR argued vide his written submissions that the filing of the return was delayed due to delay by the local audit department and an eligible deduction cannot be denied due to technical default owing to bonafide reason and consequently delay in filing the revised return. It was argued that the provision of 80AC is akin to the fourth proviso to Section 10B. 8. Based on the harmonious reading of Section 10B, Section 80AC which stipulates the eligible deduction subjected to filing of return in time as stipulated under section 139(1) the Ld. AR argued that the matter has been decided in favour of the assessee in various judgments mentioned below: * DHIR Global Industrial Pvt. Ltd. in ITA No. 2317/Del/2010 for A.Y. 2006-07 - In this case the deduction was allowed where in the return was filed with the delay of about one and half months due to software glitches which did not accept the return as the self assessment tax was not paid. The Tribunal has allowed the deduction claimed under section 10B on such return on the grounds that the due date specified under section 139(1) for claiming deduction under sec....
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....A No. 53/Jaipur/2018 - In this case the deduction under section 80IA was allowed wherein the assessee has not filed the audit report in Form No. 10CCB along with return of income under section 139(1). The Tribunal did not accept the contention of the Revenue that since the audit report has not been filed along with the original return filed under section 139(1), even the revised return has been filed along with Form 10CCB. The Tribunal held that the deduction is allowable if the Form 10CCB is filed even along with valid revised return. 9. Against this backdrop the facts of the instant case are examined. 10. The assessee has filed return of income for the A.Y. 2006-07 on 31/03/2007 which makes it clearly a return not filed in time. Section 139(4) allows any person who has not furnished a return within the time allowed to him under section 139(1) he may furnish return for any previous year at any time before the end of the relevant assessment year or before the completion of the assessment whichever is earlier. Section 139(5) reads if any person, having furnished a return under sub-section(1) or in pursuance of a notice issued under sub section 1 of Section 142 discovers any om....
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....it of the books of accounts of the assessee has been delayed and the deduction was claimed after the completion of the audit, we hold that in this case two points have to be observed namely whether the assessee primafacie is eligible for deduction or not ? And if eligible, whether the claim can be entertained at the appellate stage or not ? 14. We find that the decision of the Hon'ble Supreme Court in the case of " National Thermal Power Company Ltd. Vs. CIT" 229 ITR 383, Full Bench of the Hon'ble High Court in the case of "Ahmedabad Electricity Co. Ltd. Vs. CIT" 1993 (199) ITR 351, another decision of the Hon'ble Bombay High Court in the case of "CIT Vs. "CIT Vs. Pruthvi Brokers and Shareholders Pvt. Ltd." (2012) 349 ITR 336 (Bom.) have already held that the appellate authorities have jurisdiction to deal not merely with additional ground which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. In the case of National Thermal Power Company Ltd. Vs. CIT" 229 ITR 383 the question before the Hon'ble Supreme Court was " where on the facts found by the authorities below a question of law arises w....
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....uthorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words 'could not have been raised' must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts. It may be further observed that the Hon'ble Bombay High Court in the case of 'Pruthvi Brokers & Shareholders Pvt. Ltd.' ITA No.3908 of 2010 decided on 21.06.12, while relying upon the various decisions of the Hon'ble Supreme Court and other Hon'ble High Courts has held that even if a claim is not made before the AO, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon'ble High Court has further observed that the decision of the Hon'ble Supreme Court in the case of Goetze (India) Limited v. CIT' (2006) 157 Taxman relating to the restriction of making the claim through a revised return was limited to the powers of the Assessing Au....
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....2.04 Project No.15 SFS, Solan 9612.39 Project No. 16, Shoghi 72533.28 Project No.17, Una 71181.93 Project No.20, 21 & 22- BCS, Phase-I, Phase-Ill & Sidhpur (24093.66, Rs. 424097.58 & Rs. 12175.37) 24093.66 424097.58 12175.37 Total 2110455.58 18. Regarding the A.Y. 2007-08 the assessee has filed return on 31/03/2008 and claimed deduction under section 80IB(10). This return can well been taken as the return filed under section 139(4) instead of Section 139(1). Thus in principle the assessee would be eligible for deduction based on the judicial pronouncement that the delay beyond the control of the assessee cannot be a reason to deny the deduction. 19. Now coming to the quantum of the deduction the assessee has claimed Rs. 5,60,76,048/- under section 80IB(10) of the Income Tax Act,1961. 20. The Ld. CIT(A) in the page nos. 7 to 21 has determined the ineligible deduction which is as under: Project Amount of Profit Project No. 2 Bajaura-II, Kullu 3510304.26 Project No. 10, Nahan No surplus shown Project No. 11, Nalagarh 4824952.40 Project No. 14, SFS, Sanjauli 971441.93 Project No. 15 SFS, Solan No surplus s....