AI Drafter 
TaxTMI 
TaxTMI 
2023 (5) TMI 357
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....(1)(a). Hence the disallowance is against the well settled principle of law, unjustified and liable to be quashed. 2. Assessee prays to allow, add, delete, alter, and modify the ground of appeal on or before the date of hearing of appeal." 3. Succinctly stated fact as culled out from the records is that assessee has been regular filer of ITR. For the A.Y 2021-22, he filed his ITR u/s 139(1) of the I.T Act, 1961. Assessee claimed deduction amounting to Rs 7,62,815/- u/s 80JJAA of the I.T Act, 1961. He complied with and eligible for all the conditions laid down for eligibility of deduction u/s 80JJAA. But merely the certificate in form no.10DA could not be attached and accordingly CPC did not allow the deduction u/s 80JJAA. Ld. CIT(A) also sustained the disallowance of deduction for want of form along with ITR before u/s 139(1). Apropos to the grounds taken by the assessee the relevant finding of the ld. CIT(A) on the issue is reproduced here in below: "As per the requirement of section 80JJA(2)(c), the appellant was mandatorily required to furnish the prescribed report of accountant before the specified date mentioned in section 44AB. The requirement here is not....
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....ed Accountant to obtain the certificate. But as your honour, this was the unprecedent year we all felt in our life in which each and every person suffered with COVID-19. All the humanity in world were facing great loss by losing many family members, relatives and friends. Each and every person was in great stress. The date u/s 139(1) of the I.T Act, 1961 was extended about three time. The Chartered Accountant who happens to be the tax consultant also had checked, verified and compiled the form 10 DA but the UDIN could not be generated due to OTP issue. Thereafter, the form no. 10DA could not be signed and OTP could not be obtained. The figure of deduction u/s 80JJAA amounting to Rs. 762815/- had been worked out and the tax auditor mentioned this figure in form no. 3CD in para 33 of form. (Page no 4 to 33 of paper book and relevant page no is 26) All the above facts were also mentioned in Affidavit by auditor. (Page no 34 of paper book) Your honour, the mistake was come out in the knowledge first time when notice u/s 143(1)(a) of the I.T Act, 1961 is received. Assessee forthwith removed the defect and the form no. 10 DA was obtained and furnished. Before m....
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....n correctly claimed." Similar condition is also provided in section 80-I (8), 80-IA (7) of the I.T Act, 1961. Your honour, assessee argued before CIT(A) that the substantial compliance to get the deduction has been made and assessee only failed to make procedural compliance, which too has been complied with before making intimation u/s 143(1)(a). But Ld. AO simply denied the claim by saying "As per the requirements of section 80 JJAA, the appellant was mandatorily required to furnish the prescribed report of accountant before the specified date. But he failed to do so and resultantly appeal is dismissed." Ld. CIT(A) failed to examine the submission of assessee. (Copy of submission before CIT (A) page no. 35 to 39 of paper book) On the law, I may rely upon the cases: 1. M/s Unique Builders & Developers v/s DCIT dated 29/03/2019 in which it is held that non-filing of audit report u/s 80IB which has been filed before assessment is the technical breach of law for which assessee should not be penalized. "In the above mentioned case it was held that In view of above judicial pronouncements, there is no reason to out rightly decline the claim of deducti....
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.... no 45-48 of paper book) 4. CIT v/s AKS Alloy Pvt Ltd 205 TAXMANN 11 (Madras) "While considering an identical issue of not filing of audit report in Form 10CCB along with return of income but filed the same before the assessment was completed is acceptable" ( page no 49-51 of paper book) 5. CIT v/s Multitaxes System Pvt ltd 317 ITR 20 (Karnataka) "Wherein it was held that when a relief is sought for under Section 80IB of the Act, there is no obligation on the part of the assessee to file return accompanied by the audit report, thereby, holding that the same is not mandatory. Therefore, it is clear that before the assessment is completed if such report is filed, no fault could be found against the assessee" 6. CIT v/s Contimeters Electricals Pvt ltd (2009) 317 ITR 249 "Held that the filing of audit report along with the return was not mandatory but directory and that if the audit report was filed at any time before the framing of the assessment, the requirement of the provisions of the Act should be held to have been met" ( page no 52-54 of paper book) 7. CIT v/s Berger Paints ltd 254 ITR 503 (Kolkata) "That even in the case of the return itself, ....
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....in which: - i. Assessee could not claim deduction u/s 80JJAA while filing of ROI u/s 139(1). ii. First time during assessment proceedings new claim for deduction u/s 80JJAA was moved by way an application along with certificate of Chartered Accountant in form no. 10 DA. iii. Ld. CIT (A) allow the claim which was allowed by Hon'ble High Court.( copy of judgement is enclosed herewith) Prayer Being eligible to deduction, assessee claimed he deduction in ITR and form no. 3 CD. Before the date allowed by notice u/s 143(1)(a) the form no. 10 DA had been filed. Reasonable cause was also there. Procedural lapse should be condoned and allow the deduction u/s 80JJAA." 5. In addition to the written submission so filed the ld. AR of the assessee submitted that the claim is duly mentioned and certified by the Chartered Accountant and the same is reflected in the 3CD report filed by the assessee [ assessee's paper book page 26 clause 33 of the form no. 3CD]. The said 3CD report is filed in time. This the revenue cannot take a plea the claim of the assessee is after thought. Even the form no. 10DA which was filed later on by the assessee is signed b....
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.... only fault of the assessee is that the required report in Form no. 10DA was filed after the due date of filling the ITR for the year under consideration. To support the reasons affecting the delay the assessee filed the affidavit of the CA who filed the Form no. 3CD and Form no. 10DA thus it is not disputed that the same CA has certified the claim of the assessee in Form no. 3CD which was submitted in time and Form no. 10DA is not filed on account of the pandemic time wherein everybody life was disturbed for one or the other reasons. In that period it is not unusually that assessee or CA may make mistake and thereby the whole claim of the assessee cannot be denied. The Hon'ble High Court of Delhi in the case of International Tractors Ltd. Vs. DCIT(LTU) 127 Taxmann.com 822(Delhi) held as under on the similar issue of delay in filling the required form no. 10DA: 12. A perusal of the aforementioned extract would show that the CIT(A) insofar as the deduction claimed under section 80JJAA was concerned, not only had before him the chartered accountant's report in the prescribed form, i.e.,Form10DA but also examined the details concerning the new regular workmen, numbering 5....
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....tion by filing a revised return. 15.1 This view was based, as noticed above, on the judgment of the Supreme Court rendered in Goetze (India) Ltd. (supra). The CIT(A), squarely, dealt with this and concluded, that a fresh claim could be entertained. Therefore, the Tribunal, as noticed above, has accepted this view of the CIT(A) and the revenue has not come up in appeal before us assailing this conclusion of the Tribunal. 16. In any event, we are of the view that, if a claim is otherwise sustainable in law, then the appellate authorities are empowered to entertain the same. This view finds reflection in a judgment of the coordinate bench of this Court in titled CIT v. Aspentech India (P.) Ltd. [IT Appeal No. 1233 of 2011, dated 28-11-2011]. The relevant observations made by the coordinate bench of this court, which are apposite, are extracted hereafter: "5. The ITAT has agreed the reasoning given by the CIT (Appeals) and has relied upon the decision of this Court in CIT v. Jai Parabolic Springs Ltd. (2008) 306 ITR 42 (Del.). In the said case Delhi High Court has referred to the powers of the appellate forum and the decisions of the Supreme Court in National....