TaxTMI 
TaxTMI 
2016 (10) TMI 1282
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....me for the assessment year 2007-08 was filed on 21-02-2008. The assessee has claimed 100% deduction u/s 80IB(3) of Rs. 2,55,690/-. The AO noted that as per the provisions of section 80AC, deduction u/s 80IB shall not be allowed unless the assessee furnishes the return of income for such assessment year on or before the due date specified u/s 139(1). As the due date of filing of return of income u/s 139(1) for the assessment year 2007-08 was 31-10-2007, and as the return of income was filed by the assessee on 21-02-2008, deduction u/s 80IB(3) was disallowed applying the provision of section 80AC. 3. Upon assessee's appeal, learned CIT(Appeals) affirmed the AO's action. 4. Against this order, the assessee is in appeal before the ITAT. 5. I have heard both the counsel and perused the records. On this issue submission of the learned counsel of the assessee is as under : " Audit report in Form 3CB and 3CD and 10CCB was filed on 3110-2007. This was in time. However , the return was filed on 21-02-2008. Small delay was because besides income from Industrial unit the assesse had individual income and the books of individual could not be finalized in time. Henc....
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....ing of return beyond the due date specified u/s 139(1) of the I.T. Act. As against the above there is Hon'ble Calcutta High Court decision in Shelcon Properties P. Ld. (supra). In this case the facts and question referred are as under : "The assessee is engaged in the business of construction of housing projects. The assessee filed its return of income for the assessment year 2009- 10 on February 11, 2010, showing the gross income of Rs. 1,47,06,878. The assessee claimed deduction of Rs. 94,67,987 under section 80-IB(10) of the Income-tax Act. The Assessing Officer completed the assessment under section 143(3) of the Income-tax Act without allowing the deduction claimed by the assessee. The assessee preferred an appeal which was dismissed by the Commissioner of Income-tax (Appeals). Under section 80-IB(10) of the Income-tax Act, the amount of deduction in the case of an undertaking engaged in developing and building housing projects, approved before March 31, 2008, by a local authority, shall be 100 per cent. of the profits derived in the previous year. The allowability of the aforesaid deduction is, however, subject to the following important precondi....
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....e benefit can only be availed of by the assessee if he has filed his return on time. If he has not filed his return on time, the benefits cannot be claimed. For the aforesaid reasons, both the questions framed above are answered in favour of the Revenue. The appeal thus succeeds and is allowed. The order under challenge is set aside." 11. When this decision of Hon'ble Calcutta High Court was referred by the learned D.R., learned counsel of the assessee in rebuttal submitted that the facts are different inasmuch as in his appeal the assessee has submitted the audit report in Form No. 3CB and 3CD and 10CCB within time on 31-10-2007. However, the return was filed late on 21-02-2008. Hence the learned counsel prayed that the decision of Hon'ble Calcutta High Court will not apply. 12. Upon careful consideration I find that it is settled law of judicial precedence as upheld by Hon'ble jurisdictional High Court that the Hon'ble High Court decision takes precedence over Tribunal's decision. Hence in the present case reliance upon Tribunal's decision cannot frutify the assessee's case. The decision from Hon'ble Calcutta High Court will take precedence and will apply. In the sai....
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....ction of Rs. 3799831- in the personal books of accounts in addition to interest of Rs. 126412/- in the books of accounts of the oil mill. The interest in the books of the oil mill is paid 1"0 the bank while interest in the personal books of accounts is paid as under: Shri Mahesh Mahesh C. Bhattad, Shegaon Order u/s 143(3) A.Y. 2007-08. 1. LIC 115 2. G.N.Bhattad 103435 3. C.N.Bhattad, HUF 120000 4. Bhagwati C. Bhattad. 70000 5. Rajkumar G. Bhattad. 61000 6. M. Rathi. 11170 7. Lalit Chandak. 08200 8. Pawan Chandak. 02770 9. Kapil Chandak. 03400 Total 380090 Less Received from HDFC Akola. 107 Total 379983 The assessee has claimed the said interest as deduction because the money borrowed from the above referred partners were utilized for earning his business income consisting of income from oil mill, share of profit from R.F. Shri G....
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....ve the disallowance is sustained. This ground is dismissed." 16. Against the above order the assessee is in appeal before the ITAT. 17. In this regard learned counsel of the assessee's submissions are as under : " Above issue is squarely covered in the assessee's sister concern viz. Brijgopal Madhusudan Bhattad vy Hon. Nagpur Tribunal. All the parties to whom interest is paid have included the said interest income in their respective returns and paid taxes. Copies of their returns etc. are filed in this case. A.O. has disallowed Rs. 6,385/- out of interest claim on the ground that there is excess payment. To a few parties interest is paid at 20% which to others it is paid at 15%. The difference of 5% against those parties come to Rs. 6,385/-. The same is already covered in Rs. 3,79,983/-. However, A.O. disallowed Rs. 6,385/- over and above Rs. 3,79,983/- which is erroneous." 18. Per contra learned D.R. relied upon the orders of the authorities below. She also referred to a decision of Kerala High Court in the case of Thomas George Muthoot vs. CIT 63 ....