TaxTMI 
TaxTMI 
2022 (11) TMI 1557
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....eturn was clerical error does not hold ground? 2. Whether on the facts and circumstances of the case and in law the Ld. CIT (A) is justified in not appreciating the ratio laid down by the Hon'ble Supreme Court decision in CIT Vs. Goetze India Ltd. reported in 284 ITR 323 wherein it has been held that A.O. cannot entertain a claim for deduction otherwise than by filing a revised return. In the present case the assessee has neither claimed deduction u/s. 80IB while filing the return of income nor has it revised its return to claim the deduction? 3. Whether on the facts and circumstances of the case and in law the Ld. CIT (A) is justified in relying upon the various judicial pronouncements when the facts and circumstances of the relied upon cases are quite different from the facts and circumstances of the present case? 4. Whether on the facts and circumstances of the case and in law the Ld. CIT (A) is justified in not appreciating the ration laid down by the Hon'ble Calcutta High Court in the case of Shelcon Properties Pvt. Ltd. reported in 370 ITR 305, wherein it has been clearly held that benefit can only be availed by the assessee if he has filed return o....
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.... therefore, the Project was not complete. The local authority had approved the project on 29/03/2007, there for to be eligible for deduction u/s. 80IB(10) the project should have been completed before 31/03/2012. The AO observed that the project was not complete on or before 31/03/2012. Hence, the AO disallowed the claim of the assessee on this ground also. 2.3 Aggrieved by the order of the Assessing Officer, the Assessee filed appeal before the Commissioner of Income Tax (appeal). The Ld. CIT (A) vide his order dated 04/10/2017 allowed the appeal of the assessee. The relevant part of the order of the Ld. CIT (A) is as under : 5.2. The various submissions of the appellant and the facts on record have been gone through. It is a fact that the return filed by the appellant electronically on 30/11/2014 mentions Nil against all the columns. No particulars of income, sales, expenses, depreciation, taxes paid, TD5 deducted are mentioned in the return. In the columns pertaining to the deductions also, there is no mention of any figures. The appellant has also not indicated any amount under the 115JC. It is also seen that the information which is required in part A - 01 i.e. inf....
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....ing the return should work against the appellant. It is true that the department would have been alerted about the nonpayment of MAT tax had the appellant filled the return properly. Is it a bona fide action on the part of the appellant in filing such return? At, this stage of the proceedings, no loss is caused to the department as the appellant had subsequently paid the taxes along with interest. Having paid the taxes on the deemed income, 80IB deduction should not be held against the firm. In this connection, the various High Courts and Tribunals decisions cited above are in favour of the appellant. Taking into consideration these decisions and the fact that the return was filed on time and the audit report was uploaded on the department web site certifying the deduction, the claim of the appellant cannot be denied only on the ground of it not being mentioned in the return filed. In result, the AO is directed to allow the deduction of 80IB(10) to the appellant. 2.4 Aggrieved by the order of the Ld. CIT(A), the Revenue has filed appeal before this Tribunal. 3. The Ld.AR filed paper book and written submission. The written submission is reproduced here as under : Departmen....
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....of Section 80IB. 5.3 It is an admitted fact that the Assessee had not claimed any deduction u/s. 80IB(10) of the Act in the Return of Income. The said return has been digitally signed by Shankar Pandurang Jagtap, Partner of the assessee firm on 30/11/2014. It is also observed that the Auditor in the audit report in form 3CD (page 47 to 60 of the paper book) has not claimed any deduction u/s. 80IB(10) of the Act. The Auditor has merely mentioned "Nil" in the relevant column. The actual relevant part of Audit Report in the paper book scanned as under: 5.4 It is also observed that the Auditor has duly filled in all the applicable coloumns of the audit report and it is also enclosed with the notes . Nowhere the auditor has mentioned about the deduction u/s. 80IB(10) of the Act. The assessee has merely claimed that there was a mistake in filling return of income by the clerk. However, the assessee has not established the oral submission by filling any affidavit from the clerk. The Ld.AR could not rebut the fact that the Auditor has not claimed deduction in the Audit report relevant coloumn. In the from 10CCB which is at Page 62 of the paper book, the date coloumn is blank, hence w....
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....s, this Sub Section (5) of Section 80A of the Act imposes an additional condition for claim of deduction in relation to income under any of the provisions mentioned therein. Apart from the requirement of fulfillment of individual set of respective conditions for the purpose of claiming the concerned deduction, this plenary condition requires that the claim ought to have made in the return of income by the assessee and if the assessee fails to make such claim in the return of income, such deduction shall not allowed to him under the relevant provision. Admittedly, in the present case, the Petitioners had not raised any such claim in the return of income. In plain terms, the claim of the Petitioners under Section 80-IB (10) of the Act would be hit by Sub Section (5) of Section 80A of the act. 6. We are conscious that in absence of the provision contained in Section 80A (5) of the Act, the Petitioners could have maintained the claim of deduction even before the CIT for the first time in Revision Application, though no such claim was made before the Assessing Officer, if from the facts on record, the Petitioners could sustain the said claim in law. This is very clear from the ....
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....ht in holding that the over-assessment did not arise from the order the assessment. Once the Petitioner was able to satisfy that there was a mistake in totaling purchases and that there was under- totalling of purchases to the tune of Rs. 20,000, it is obvious that there was over-assessment. In other words, the assessment of the total income of the assessee is not correctly made in the assessment order and it has resulted in over-assessment The CIT would not be acting de hors the IT Act, if he gives relief to the assessee in a case where it is proved to his satisfaction that there is over-assessment, whether such over-assessment is due to a mistake detected by the assessee after completion of assessment or otherwise. In our opinion, the CIT has misconstrued the words "subject to the provisions of this Act" in S. 264 (1) and read a restriction on his revisional power which does not exist. The CIT was, therefore, not right in holding that it was not open to him to give relief to the Petitioner on account of the Petitioner 's own mistake which it detected after the assessment was completed. Once it is found that there was a mistake in making an assessment, the CIT had power t....
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....llow the claim of an assessee in breach of the condition contained therein. We are therefore not in agreement that the expression given by the Income Tax Tribunal in case of Madhav Construction (supra) holding that the restriction contained in Sub Section (5) of Section 80A of the Act is to restrict the power of Assessing Officer and not higher Income Tax Authorities. 10. The Petitioners having given up the challenge to the constitutionality of the retrospectivity to Section 80A (5) of the Act, cannot bring in the concept of the reading down of the provision in order to save if from unconstitutionally. In plain terms, our duty would be to enforce the provision contained in Sub Section (5) of Section 80A of the Act, as it is stands in the statue book. The decision in case of Goetze (India) Ltd. (supra) was rendered in different background. The Supreme Court did not have any occasion to interpret the provision of Section 80A (5) of the Act in the context of the power of the CIT or the Appellate Tribunal 11. In the result, we do not find any merit in the Writ Petition, the same is therefore dismissed. " Unquote. 5.6 The Hon'ble SC in the case of Commissioner of Cu....
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....ed by Respondent assessee 'A 1 1. During the relevant previous year, the Respondent assessee was a partnership firm consisting of five partners from Jagtap family who were close relatives. The said firm was carrying on the business of Promoters and Builders. For its business activities the respondent assessee maintained proper books of accounts which were duly audited by Chartered Accountant u/s 44AB of the I.T. Act 1961. Since inception, the profits of the respondent assessee were exempt u/s 80IB[10] of the I. T. Act 1961 21/10 201x 2. The Respondent assessee filed its return of income for A.Y.2014-15, electronically on 30/11/2014 along with copy of tax audit report and Form No.10CCB [Please refer Page Nos. 1 to 68 of Paper Book No.1] The Respondent assessee is sorry to state that the ITR was filed without any figures due to technical error and mistake of clerk of auditor who in amount column put NIL instead of figures. During assessment proceedings it was revealed that ITR was mistakenly filed without any figures. The appellant assessee respectfully submits that it had no malafide intentions of concealing its income and /or evading the taxes since the tax audit ....