TaxTMI 
TaxTMI 
2024 (6) TMI 812
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....1/- claimed under section 80-1A of the Income-tax Act, 1961 while passing the intimation under section 143(1) of the Act. 2) The CIT (Appeals) erred in upholding the action of the Assessing Officer in making disallowance of a sum of Rs. 85,466/-, while passing the intimation under section 143(1) of the Act, being employee's contribution to provident fund and ESIC paid beyond the prescribed due date under respective laws but paid within due date of filing of return of income. 3) Each of the above grounds of appeal are independent and without prejudice to each other. 4) The appellant craves liberty to add, to alter and/or amend the grounds of appeal as and when given." 3. During the hearing, the learned Authorised Representative ("learned AR") fairly submitted that ground no.2, raised in assessee's appeal, pertaining to disallowance under section 36(1)(va) of the Act on account of delayed payment of employees' contribution towards provident fund and ESIC is covered in favour of the Revenue by the decision of the Hon'ble Supreme Court in Checkmate Services Pvt. Ltd. Vs. CIT, [2022] 448 ITR 518 (SC). Accordingly, respectfully following the aforesaid de....
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....B along with the return of income originally filed by the assessee on 28/11/2019. Being aggrieved, the assessee is in appeal before us. 6. We have considered the submissions of both sides and perused the material available on record. In the present case, it is evident from the record that the assessee vide its original return of income claimed a deduction of Rs. 75,94,111 under section 80-IA of the Act. However, since along with the original return of income, the assessee did not file an audit report in Form no.10CCB in support of its claim of aforesaid deduction, the CPC while processing the original return of income vide intimation dated 05/06/2020 issued under section 143(1) of the Act disallowed the deduction claimed by the assessee under section 80-IA of the Act. It is also evident from the record that the assessee filed the audit report in Form no.10CCB in respect of its unit at Barmer, Rajasthan on 11/06/2020. From the perusal of the aforesaid audit report, forming part of the paper book from pages 155-159, we find that the undertaking commenced its operation on 24/12/2019 and the initial year of assessment from when the deduction is claimed by the assessee is the assessm....
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....f the undertaking for the previous year relevant to the assessment year for which the deduction is claimed have been audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, and the assessee furnishes, along with his return of income, the report of such audit in the prescribed form duly signed and verified by such accountant." 7. Further, Rule 18BBB of the Income Tax Rules, 1962 provides that the audit report, as required under section 80-IA(7) of the Act, shall be in Form no.10CCB. Thus, from the plain reading of the provisions of section 80-IA(7) of the Act, as it stood during the relevant year, read with Rule 18BBB, it is evident that for claiming deduction under section 80-IA of the Act, the assessee is required to furnish the audit report in Form no.10CCB along with the return of income. It is pertinent to note that the provisions of section 80-IA(7) of the Act neither qualify the term "return of income" nor mention the specific provision of section 139 of the Act. Further, in the present case, there is no dispute that the original return of income filed by the assessee on 28/11/2019 was a valid return of income and was filed before the ....
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....eduction u/s. 80IA of the Act, as claimed originally and also filed audit report in Form no.10CCB. This return of income was also processed by CPC, Income Tax Department, Bengaluru and issued intimation on 25.03.2019 again disallowing the claim of deduction, which is impugned intimation u/s. 143(1) of the Act. This return was revised by the assessee within the time limit available u/s. 139(5) of the Act. The Department processed the return of income i.e., revised return filed on 28.05.2018, only on 23.05.2019 when the audit report in Form No.10CCB was available with the Department. It means that the Department has disallowed the claim of deduction even though the assessee was entitled for claim of deduction. This issue has been covered in favour of assessee and against the Revenue by the decision of the Co-ordinate Bench of the Tribunal in the case of ACIT vs. Shanthi Gears Ltd., in ITA No.3068/CHNY/2017, order dated 04.03.2022, wherein the Tribunal considered various case laws considered this issue vide para's 6 to 8 as under:- 6. On the other hand, the learned Counsel for the Assessee however read out the relevant provision of Section 80AC of the Act and the relevant rea....
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....datory for the Assessee to file return of income on or before the due date specified u/s. 139(1) to claim the benefit of any deduction provided u/s. 80IA/80IB/80IC/80ID and 80IE, but nowhere in the said section, it was provided that unless, the Assessee makes claim for deduction in the return filed u/s. 139(1), the said claim is allowable. We further noted that the learned CIT(A) recorded categorical finding, in the light of the decision of ITAT Chennai Bench, in the case of ACIT Vs. Precot Meridian Limited (supra), where it was held that, once original return is filed u/s. 139(1) within due date specified under the Act, then any deduction claimed in the revised return filed within due date specified u/s. 139(5) shall be allowed. We further, noted that the learned CIT(A) had also taken a support from the decision of ITAT, Mumbai Bench, in the case of Kamadhenu Builders & Developers Vs. Additional CIT, where it was observed that section 80A(5) only requires filing of return, but nowhere it suggest that claim should be made in the original return and not by way of original return, further when the original return of income was filed within the due date, then the revised return filed,....
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....sessee on 28.05.2018 and consequent processing of return by the Department by issuing intimation u/s. 143(1) of the Act dated 25.03.2019, the impugned order, the assessee has revised the return validly and within the time available u/s. 139(5) of the Act and has also accompanied by the audit report in Form no.10CCB of the Act. Hence, we are of the view that the authorities below have wrongly disallowed the claim of deduction. Respectfully following the Co-ordinate Bench decision in the case of Shanthi Gears Ltd., supra, we allow the claim of assessee and direct the AO accordingly." 9. From the perusal of the order dated 14/07/2022 passed by the coordinate bench of the Tribunal in DCIT v/s Kalyan Aqua & Marine Exports India Pvt. Ltd., in ITA No. 32/Viz./2021, upon which reliance has been placed by the learned CIT(A) in the impugned order, we find that in the facts of the case, the taxpayer could not produce a copy of the audit report in Form no.10CCB, though claimed to be filed after a delay. However, as noted above, in the present case, the learned CIT(A) upon verification of the database noted that the audit report in Form no.10CCB was filed by the assessee online on 11/06/2020....