DCIT, HISAR vs. M/S SYNERGY WASTE MANAGEMENT PVT. LTD.,, HISAR

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : G : NEW DELHI BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER ITA Nos.5701 to 5704/Del/2016 Assessment Years: 2011-12, 2012-13, 2012-13 & 2013-14 ITA No.7380/Del/2018 Assessment Year: 2014-15 DCIT, Vs. Synergy Waste Management Circle Hisar, Pvt. Ltd., Hisar. 168, Sector 27-28, Delhi Road, Hisar -125 044. PAN: AAICS9088H (Appellant) (Respondent) Assessee by : Shri Ramesh Goyal, CA & Shri Akshay Goyal, Advocate Revenue by : Ms Kajal Singh, Sr. DR Date of Hearing : 18.01.2023 Date of Pronouncement : 07.02.2023 ORDER PER C.M. GARG, JM: ITA Nos.5701 to 5704/Del/2016 by the Revenue are directed against the separate orders of CIT(A), Hisar, relating to Assessment Years 2011-12, 2012-13, 2012-13 & 2013-14. ITA No.7380/Del/2018 filed by the Revenue is directed against the order of the CIT(A)-2, Gurgaon, relating to assessment year 2014-15.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 “i) On the facts &in the circumstances of the case the ld.CIT(Appeals) has erred in deleting the addition of Rs.4,12,98,981/- made on account of disallowance of deduction u/s 80IA of the Act, even though the assessee failed to file its return of income within the time prescribed under sub- section (1) of Section 139 of the Income Tax Act, 1961 and filing of the return within such stipulated period was pre-requisite for claim of deduction under this section. ii) The appellant craves leave to add, amend or modify the grounds of appeal subsequently before disposal of the appeal.”

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018

Your Honour the assessee company complied with all the requirements for filing the return well on time, which would prove that there was no error on part of the assessee company to delay the return. Mentioned below are some facts which would show that the assessee had no intention to delay the return: 1. Balance Sheet was signed on 29.08.2012. 2. Report in 10CCD was obtained from the auditor on 25.09.2012. 3. Form No. 29B for MAT u/s 115JB was signed by the auditor on 25.09.2012. 4. Audit report u/s 44AB was signed by the auditor on 25.09.2012. 5. Self assessment tax of Rs. 5,58,280/- was paid on 27/28.09.2012. 6. Affidavit of Mr. Ashok Kumar Goyal, CA (Hisar) dated 17.11.2021 confirming that the ITR was uploaded on 28.09.2012. It is further submitted that all the above stated documents have already been filed before your honour. Further all these facts have been duly verified by Ld. CIT(A) in his order dated 29.09.2016. Reliance is placed on the following decisions: 1. Supreme Court of India in the case of Dalmia Power Ltd. vs. ACIT, Circle -1, Trichy, [2020] 420 ITR 339. Hon’ble court held as under: “Section 170, read with section 119, of the Income-tax Act, 1961 - Succession to business otherwise than on death (Assessment) - Assessment year 2016-17 - Whether where pursuant to scheme of amalgamation, predecessor companies/transferor companies had been succeeded by appellants/transferee companies who had taken over their business along with all assets, liabilities, profits and losses etc., in view of provisions of section 170(1), Department was required to assess income of appellants after taking into account revised returns filed after amalgamation of companies - Held, yes - Appellants had entered into an interconnected scheme of arrangement and amalgamation with nine group entities - After sanctioning of scheme, revised returns were filed on 27-11-2018 - Assessing Officer disregarded revised returns on ground that same were filed late and no condonation of delay had been obtained in accordance with section 119(2)(b) - However, it was found that provisions of section 119(2)(b) would not be applicable where an assessee had restructured his business, and filed a revised return of income with prior approval and sanction of NCLT, without any objection from department - Further, NCLT had passed last orders granting approval and sanction of schemes only on 22-4-2018 and 1-5-2018, hence, it was an impossibility for assessee companies file revised returns of income for assessment year 2016-17 before due date of 31-3-2018 - Whether therefore, Department 3

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 was to be directed to receive revised returns of income for relevant assessment year 2016-17 filed by appellants on 27-11-2018 and complete assessment after taking into account Schemes of Arrangement and Amalgamation as sanctioned by NCLT - Held, yes [Paras 8 and 10] [In favour of assessee]” “8. In the facts of the present case, it was an impossibility for the assessee companies to have filed the revised Returns of Income for the A. Y. 2016-2017 before the due date of 31.03.2018, since the NCLT had passed the last orders granting approval and sanction of the Schemes only on 22.04.2018 and 01.05.2018.” 2. High Court of Madras in the case of S. Sevugan Chettiar vs. PCIT, Chennai, [2017] 392 ITR 63. Observation of the Hon’ble court as per paras 11, 12 & 13 is as under: “11. Admittedly, the case, which was considered by the Hon'ble Supreme Court related to an individual employee namely S. Palaniappan, who was also a similarly placed person as that of the petitioner. Thus, the Board, in its wisdom, while implementing the judgement in the case of S. Palaniappan, took a decision that such a benefit should be extended to the similarly placed persons treating them as class of cases. Therefore, the Board observed that the order should be communicated to all the Commissioners, so that relief can be granted to such retirees of the ICICI Bank. Thus, the petitionercannot be non-suited solely on the ground that he had filed a revised return well beyond the period stipulated under Section 139(5) of the Act. 12. Furthermore, it is relevant to point out that Clause (c) to Sub- Section (2) of Section 119 of the Act states that the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order, relax any requirement contained in any of the provisions contained in Chapter IV or Chapter VI-A of the Act, which deal with computation of total income and deductions to be made in computing the total income and such power is exercisable where the petitioner failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the conditions that (i) the default is due to circumstances beyond the control of the assessee and (ii) the assessee has complied with the requirement before the assessment in relation to previous year, in which, such deduction is claimed. 13. Thus, if the default in complying with the requirement was due to circumstances beyond the control of the assessee, the Board is entitled to exercise its power and relax the requirement contained in Chapter IV or Chapter VI-A. If such a power is conferred upon the Board, this Court, while exercising jurisdiction under Article 226 of The Constitution of India, 4

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 would also be entitled to consider as to whether the petitioner's case would fall within one of the conditions stipulated under Section 119(2)(c).” So keeping in view the above facts your honour will find that the assessee has made all compliances in time but due to technical default the return uploaded could not be generated on 28.09.2012. From the above decisions of hon’ble courts your honour will find that the assessee’s plea may be considered as there was impossibility and things were not in control of the assessee. So the delay in filing the return may be condoned. The assessee may be given benefit of impossibility or out of control things as per section 119(2)(c), which gives the right to the assessee for claiming the deductions bona fidely. So going through the above facts and case laws, it is humbly prayed that the appeal of the department may please be dismissed.”

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 17.11.2021 also confirms and supports that the ITR for AY 2012-13 was uploaded on 28.09.2012, but, acknowledgement could not be generated due to technical problems in the Department’s portal. The ld. Counsel submitted that before granting relief to the assessee the ld.CIT(A) has verified all these factual positions and dates of compliance and, thereafter, granted relief to the assessee and there is no defect in the said first appellate order.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 download the return acknowledgement any time from the Department site, they proceeded with other returns. The ld. Counsel submitted that the ld.CIT(A) has rightly concluded that disallowing the claim of deduction u/s 80IA of the Act on account of the fact that the return of income was not filed is not sustainable as the assessee was prevented by sufficient cause from filing the return within the time specified and the ld. First appellate authority after considering the entire facts and circumstances wherein the return could not be uploaded within the time prescribed u/s 139(1) of the Act due to technical problems of over loaded departmental portal reaching to last days of filing returns, the ld.CIT(A) rightly held that the contention of the assessee that it was prevented by sufficient cause from filing of return within the specified time was rightly accepted.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 Pvt. Ltd., reported as 376 ITR 456 (SC), wherein it has been held that filing of the return for making of a claim under Chapter VI-A of the Act is mandatory, but, compliance of timing is directory. Therefore, even if the claim is made during the period of assessment proceedings, such claim has to be allowed.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 25.09.2012. Tax was also deposited and digital signatures renewed by 27th Sep. 2012 As per the CA ‘The return of the party was uploaded on 28th Sept 2012, there was some problem in the Internet as well as Departmental Site hence we were frequently facing error in uploading many return and ‘Server Time Out’ message was appearing many times and when we tried to Login again to file the return the message was appearing ‘You have already filed the return so please select the Revised Option ’ in many cases. So in such cases we had to go to my returns column & download the acknowledgment from there which comes protected with password i.e. (PAN+ DOI) in small fonts. With all this internet & site problems we uploaded the return of Synergy Waste Management Pvt. Ltd. on 29.09.2012 and downloaded the acknowledgement of the return but we could not open it as it was not accepting the password so with the fair belief and confidence that we can download the return acknowledgement any time from the department site, we proceeded with our other returns and even confirmed the party on their telephonic enquiry that Yes your return has been filed/uploaded and you can take print out from our office any time. All the Tax Audit/Company Audit returns were uploaded from our system by 8 p.m. on 30th September, 2012 and only two non Tax Audit return of two nearly closed/not in running business companies were uploaded on 1st October, 2012. To our shock/greatest surprise when the party came to collect the acknowledgement on 07.10.2012 we came to know that the status is appearing as ‘No Records’ found Then after all the discussion/inquiries with CPC Banglore etc. we again uploaded the return on 12.10.2012. ’ Neither the assessee nor the Counsel was aware that the return was not uploaded, there was not a single reason for not filing the return in time as per the provisions of sec 139(1), 30th Sept 2012 was a Sunday hence the due date was extended to 01.10.2012, so if the omission would have been noticed , the Counsel could have filed the return on 01.10.2012 also. You are kindly requested to condone the delay in filing the return as the assessee has completed all the formalities for filing the return & it was just omitted to be uploaded by the assessee’s counsel due to some technical error/confusion

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 12. The ld.CIT(A) has granted relief to the assessee by observing that the contentions of the appellant that it was prevented by sufficient cause from filing the return within the time specified was accepted with the following observations and findings:- “3.3. From the perusal of facts in the case of the appellant, it is apparent that claim u/s 80IA has not been allowed to the appellant on account of the fact that the return of income has not been filed as per the time allowed for filing original return of income as per section 139(1) of the Income Tax Act, 1961. However, appellant has explained that it was on account of technical reasons that the return of income was not uploaded in the system when the appellant attempted to upload the same on 29.09.2012 i.e. within the time allowed to file return of income u/s 139(1). The appellant demonstrated before me that they have filed returns for AY 2006-07 to AY 2011-12 within time allowed for filing of return and well within the due date. Appellant has stated that final computation of income was prepared and self assessment tax due of Rs. 5,58,280/- was paid on 27.09.2012. The digital signature of Director i.e. Sh. Dheeraj Aggarwal required for filling the return were also obtained on 26.09.2012. The return alongwith tax was given to the company’s consultant/C.A. for filling on 27.09.2012. The return was uploaded /said to be uploaded by the Tax Practitioner on 28th September as confirmed on phone. Appellant has stated that all the formalities like preparation of Balance Sheet, Audit Report u/s 44AB, 115JB & Section 80IB were completed before 25.09.2012. The appellant has stated that their CA informed them that “the return of the party was uploaded on 28th Sept 2012, there was some problem in the Internet as well as Departmental Site hence we were frequently facing error in uploading many return and ‘Server Time Out’ message was appearing many times and when we tried to Login again to file the return the message was appearing ‘You have already filed the return so please select the Revised Option ’ in many cases. So in such cases we had to go to my returns column & download the acknowledgment from there which comes protected with password i.e. (PAN+ DOI) in small fonts. ” 3.4 The appellant has stated that with internet & site problems, they uploaded the return of Synergy Waste Management Pvt. Ltd. on 29.09.2012 and downloaded the acknowledgement of the return. However, they could not open the acknowledgement as it was not accepting the password. The appellant has stated that with the fair belief and confidence that they can download the return acknowledgement anytime from the department site, they proceeded with their other returns. The appellant has stated that they even got confirmation that their return has been filed and uploaded from their CA. However, on 07.10.2012, on trying to obtain acknowledgement, their status appeared as ‘No Records’ found. After enquiry with CPC Bangalore, the return was again uploaded on 12.10.2012, 3.5 The appellant has furnished copies of 'Computation of Total Income for AY 2012- 13’, copy of auditor’s report which is signed dated 29.08.2012, Annexure to the Audit Report which is signed 29.08.2012. The Annexure includes balance sheet and statements of Profit & Loss accounts duly verified by 10

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 the Auditors and the management. Copy of Form No. 3CA signed and dated 25.09.2012, Annexure to the Form No. 3CA signed by director of the company and management dated 25.09.2012, copy of Form No. 10CCB which is also signed and dated 25.09.2012, Form No. 29B signed and dated 25.09.2012. The appellant has also furnished copy of Form No. 26 AS evidencing payment of taxes (self assessment tax) on 27.09.2012.From the above evidences furnished, the contentions of the appellant that it was prevented by sufficient cause from filing of return within time specified is accepted. The order of the AO u/s 143(1) of the I.T. Act disallowing claim for deduction u/s 80IA on account of the fact that return of income was not filed is set aside and the claim made by the appellant in its return of income shall be considered allowable subject to examination of the claim for deduction u/s 80IA on merits, if any, by the Assessing Officer during any other proceeding as per provisions of this Act.”

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 time limit before the ld.CIT(A). On being asked by the Bench, the ld. Sr. DR did not controvert the factual position that for AY 2012-13, the balance sheet of the assessee was signed on 29.08.2012, report in 10CCD was obtained from the auditor on 25.09.2012, Form No. 29B for MAT u/s 115JB was signed by the auditor on 25.09.2012, Audit report u/s 44AB was signed by the auditor on 25.09.2012 and the Self assessment tax of Rs. 5,58,280/- was paid on 27/28.09.2012. The assessee has also filed the affidavit of Mr. Ashok Kumar Goyal, CA (Hisar) deposed on 17.11.2021 stating the factual position of non-uploading the return before the prescribed time limit, but, it was not filed before the authorities below.

“5. I have heard both the sides and scanned through the relevant material on record. It is an undisputed fact that the assessee did not file return of income for the year under consideration either originally or pursuant to notice u/s 148. Computation of income was filed during the course of assessment proceedings in which the deduction u/s 80P was claimed. Whereas, the authorities below have canvassed a view that the assessee violated section 80A(5) and hence the deduction was not available; the assessee has made out a case that section 80A(5) does not apply where no return is furnished and rather it is section 80AC which would govern the case and because of omission of section 80P in the list of sections given in section 80AC, the deduction should be granted. In order to appreciate the contention of the ld. AR, it would be apposite to reproduce section 80AC, before its substitution by the Finance Act, 2018 w.e.f 1.4.2018, which reads as under:

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 “ Where in computing the total income of an assessee of any previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80- IAB or section 80-IB or section 80- IC or section 80-ID or section 80-IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139." 6. On going through the above provision, it is crystallized that the requirement of filing return before the time u/s 139(1) is sine qua non for claiming deduction under the six sections (80-IA or 80- IAB or 80-IB or 80-IC or 80-ID or 80-IE). In other words, if a return is filed belatedly u/s 139(4) or under any other section, claiming deduction under any of the six sections, the writ of the section 80AC will operate to prevent its granting. This section does not deal with granting or non-granting of deduction under any other sections of Part C of Chapter VI-A, including section 80P. Thus, to infer that since section 80AC does not cover section 80P, the latter section is immune from any other statutory requirement, is wholly incorrect. In fact, section 80AC is alien to deduction under any section except the specified six sections. 7. Now, I turn to section 80A(5), which has been pressed into service by the AO for denying the benefit of deduction u/s 80P of the Act, which runs as under: `Where the assessee fails to make a claim in his return of income for any deduction under section 10A or section 10AA or section 10B or section 10BA or under any provision of this Chapter under the heading "C.-- Deductions in respect of certain incomes", no deduction shall be allowed to him thereunder.' 8. This section provides that where an assessee fails to make a claim in his return of income for any deduction, amongst others, the sections enshrined in Part C to Chapter VI-A (including section 80P and six sections as given in section 80AC), then the deduction shall not be allowed. A perusal of the mandate of section 80A(5) divulges that the claiming of deduction under various sections of part C of Chapter VI-A in the return of income is essential. The reference in this provision is only to return of income, without any further qualification. The return may be u/s 139(1) or 139(4) or any other relevant section. 9. On a conjoint reading of sections 80A(5) and 80AC, it gets manifest that claiming of deduction under various sections of Part C of Chapter VI- A in the return of income is essential. However, an additional requirement for claiming deduction under sections 80-IA or 80-IAB or 80-IB or 80-IC or 80-ID or 80-IE is that such deduction must be claimed in a return filed u/s 139(1) of the Act. In one sense, section 80AC is an exception to section 80A(5), making the mandate of the latter section more stringent in the 13

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 prescribed cases. Whereas other deductions of Part C of Chapter VI-A, including section 80P, can be claimed in the return filed under any section, including section 139(4); the six deductions as referred to in section 80AC must necessarily be claimed in the return filed u/s 139(1) only. Ex consequenti, the contention that since section 80P is not covered under section 80AC, the deduction under this section becomes automatically allowable without adhering to the requirement of section 80A(5), is bereft of force and hence dismissed. 10. Now I advert to the requirements of section 80A(5), which stipulates that no deduction under other sections including 80P shall be allowed if the assessee fails to make such a claim in the return of income. Thus, there are twin conditions, viz., first, claiming deduction u/s 80P and second, claiming such deduction in the return of income. There is no dispute on the first condition, which has been satisfied in this case as the assessee did claim the deduction albeit during the course of assessment proceedings. The whole controversy revolves around the second condition, which says that the claim should be made in the return of income. The assessee in the extant case did not file any return of income, but made a claim of the deduction in computation of income filed during the course of the assessment proceedings. The moot question is whether the requirement of making a claim in the return of income is a mandatory or a directory requirement. If it is held as mandatory, then the claim must be made in the return of income, failing which the benefit of deduction would be lost. Au contraire, if it is held as directory, then the claim made either in the return of income or in any manner before the conclusion of assessment proceedings, as is the case under consideration, would validate the entitlement. 11. The Hon'ble Supreme Court in CIT vs. G.M. Knitting Industries (P.) Ltd. (2015) 376 ITR 456 (SC) came across a situation in which the assessee claimed additional depreciation in Form 3AA but the Form was not furnished along with the return of income. Such Form was submitted during the course of assessment proceedings. The AO denied the claim on the ground that the Form 3AA was required to be statutorily filed along with the return of income. The view of the AO was reversed by the Tribunal as well as the Hon'ble High Court by holding that even if the Form was filed during the course of assessment proceedings, it amounted to sufficient compliance. The Hon'ble Supreme Court, taking note of the judgment in CIT Vs. Shivanand Electronics (1994) 209 ITR 63 (Bom), approved the view of the Hon'ble High Court having the effect that the requirement of filing Form 3AA was a necessary ingredient for claiming additional depreciation, but the timing of filing the Form was a directory requirement, which was fulfilled on filing it even during the course of assessment proceedings. The Hon'ble Bombay High Court in Shivanand Electronics (supra) dealt with the requirement of filing audit report for the purpose of claiming deduction u/s 80J, which required that the report should be filed "along with return of income'' under s. 80J(6A). It held 14

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 that such requirement of filing the audit report along with the return of income was not mandatory, but directory in the sense that if assessee complied with the same before completion of assessment, deduction under s. 80J, on the basis of such report, was allowable. 12. Recently, the Hon'ble Supreme Court was confronted with the claim of benefit u/s 10B in Pr.CIT vs. Wipro Limited (2022) 446 ITR 1 (SC). The assessee furnished original return taking the benefit of section 10B and did not carry forward the loss. Thereafter, a revised return was filed foregoing the claim of deduction u/s 10B. The AO rejected the withdrawal of exemption under Section 10B by holding that assessee did not furnish the necessary declaration in writing before due date of filing return of income, which was an essential requirement for not claiming the benefit of section 10B. The Hon'ble High Court decided the issue in favour of the assessee by holding that the requirement of filing the declaration was mandatory but filing it along with the return of income u/s 139(1) was a directory requirement. The matter was brought by the Revenue before the Hon'ble Supreme Court. The assessee, inter alia, relied on the judgment of the Apex Court in G.M. Knitting Industries (supra). Their Lordships held that the requirement of filing the report in support of deduction u/s 10B was not a directory but a mandatory requirement. It further held that both the conditions of - filing the declaration and filing it before the time limit u/s 139(1) - were mandatory and had to be cumulatively satisfied. Rejecting the reliance on G.M. Knitting Industries (supra), the Hon'ble Supreme Court held that that decision was relevant in the context of deduction provisions and not the exemption provisions as given under Chapter III of the Act. As the Hon'ble Summit Court in Wipro Limited (supra) was dealing with section 10B, falling under Chapter III of the Act, it held qua G.M. Knitting Industries (supra) that: `Therefore, the said decision shall not be applicable to the facts of the case on hand, while considering the exemption provisions. Even otherwise, Chapter III and Chapter VI-A of the Act operate in different realms and principles of Chapter III, which deals with "incomes which do not form a part of total income", cannot be equated with mechanism provided for deductions in Chapter VI-A, which deals with "deductions to be made in computing total income". Therefore, none of the decisions which are relied upon on behalf of the assessee on interpretation of Chapter VI-A shall be applicable while considering the claim under Section 10B (8) of the IT Act.' 13. On going through the judgments in G.M. Knitting Industries (supra) in juxtaposition to Wipro Limited (supra), the principle which emerges is that the fulfillment of requirement of making a claim for exemption under the relevant sections of Chapter III in the return of income is mandatory, but when it comes to the claim of a deduction, inter alia, under the relevant sections of Chapter VI-A, such requirement becomes directory. In the latter case, the making of a claim even after the filing of return but before completing the assessment, meets the directory requirement of making a claim in the return of income. The instant case involves deduction u/s 80P 15

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 and hence, would be governed by the principle laid down in G.M. Knitting Industries (supra), as per which the making of a claim of deduction is mandatory but the timing is directory. Even if the claim is made during the course of assessment proceedings, such a claim has to be allowed. In view of the foregoing discussion, I am satisfied that the authorities below were not justified in rejecting the assessee's claim of deduction u/s 80P only on the ground that such a claim was not made in the return but during the course of assessment proceedings. The impugned order is ergo set aside and the matter is remitted to the file of the AO for examining the claim of deduction u/s 80P on merits.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 Aggrieved, the assessee carried the matter before the ld. First appellate authority and the ld.CIT(A), after considering the totality of the facts and circumstances of the case, first of all, observed that the appellant furnished copies of the computation of total income, copy of auditor’s report signed on 29.08.2012, Annexures to audit report signed on 29.08.2012, which includes balance sheet and statement of Profit & Loss Account duly verified by the auditors and the management. It is also not in dispute that the copy of Form-3CA, annexure to the Form-3CA signed by the Director of the company and management, copy of form 10CCB, copy of form 29B were signed on 25.09.2012. It was also observed by the ld.CIT(A) that the assessee has also furnished copy of Form No.26AS evidencing the payment of tax (self assessment tax) on 27.09.2012. Thereafter, the ld.CIT(A) noted that the appellant was prevented by sufficient cause from filing the return within the prescribed time limit u/s 139(1) of the Act. Therefore, the explanation was found plausible and accepted by the ld.CIT(A). The ld.CIT(A) finally held that the order of CPC/AO u/s 143(1) of the Act disallowing claim u/s 80IA on account of the fact that the return of income was not filed within the prescribed time limit was set aside and the claim made by the appellant in the return of income was allowed subject to examination of claim for deduction u/s 80IA of the Act by the AO.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), as per which the making of a claim of deduction is mandatory, but, timing is directory. Even if the claim is made during the assessment proceedings, such a claim is to be allowed. In view of the above, we are inclined to hold that the AO was not right in holding that the assessee is not entitled to claim deduction u/s 80IA(4) of the Act on account of belated filing of return beyond the prescribed time limit u/s 139(1) of the Act. The ld.CIT(A) was justified and correct in holding that the assessee is entitled to claim deduction u/s 80IA(4) of the Act as it was prevented by sufficient cause in filing the return of income within the prescribed time limit. In view of the proposition rendered by the Hon’ble Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), the claim of the assessee has reached to a higher pedestal because the Hon’ble Supreme Court has categorically held that for making a claim under Chapter VI-A of the Act which also includes provision of deduction u/s 80IA of the Act and the making of such claim for deduction is permissible even after filing of the return, but, before completing the assessment meets directory requirement in the filing of return of income. 19. In the present case, however, the return of income of the assessee for AY 2012-13 was filed beyond the prescribed time limit u/s 139(1) of the Act. For that the ld.CIT(A) has recorded a categorical finding that the assessee was prevented by sufficient cause in filing the return within the prescribed time limit perhaps due to weak responsive Departmental website. Even in a situation the return of income of the assessee for AY 2012-13 is treated as belated return beyond the prescribed time limit provided u/s 139(1) of the Act, then also, as per the judgement of the Hon’ble Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra), which was

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 followed by the coordinate Bench of the ITAT, Pune in the case of Krushi Vibhag Karmchari Vrund Sahakari Pat Sanstha (supra), the assessee is very well entitled to claim deduction u/s 80IA(4) of the Act. Therefore, we are unable to find any valid reason to interfere with the findings arrived at by the ld.CIT(A). Thus, we uphold the same. Accordingly, the sole ground of the Revenue in ITA No.5701/Del/2016 for AY 2012-13 being devoid of merits is dismissed.

Appeal of the Revenue in ITA No.5703/Del/2016 for AY 2012-13 20. As agreed by the ld. Representatives of both the sides, the issue and grounds in the Departmental appeal for AY 2011-12 to 2014-15, i.e., in all four appeals are identical and similar and, therefore, the case for AY 2012-13 i.e., ITA No.5703/Del/2016 can be taken as a lead case for adjudication of the sole issue involved in all these four Departmental appeals. The grounds raised by the Revenue in the said appeals are as follows:- “i) On facts & in the circumstances of the case the Ld. CIT (Appeals) has erred in deleting the addition of Rs.4,12,98,981/- made on account of disallowance of deduction U/s 80IA of the Act; even though the assessee does not fulfill the conditions laid down for claim of such deduction i.e. the assessee is not engaged in the business of Developing or (ii) Operating & maintaining or (iii) Developing, operating and maintaining any infrastructural facility and not entered into agreement with the Central Govt, or a State Govt, or a Local Authority or any other statutory body for providing such facilities. ii) On facts & in the circumstances of the case the Ld.(Appeals) has erred in deleting the addition of Rs.4,12,98,981/- made on account of disallowance of deduction U/s 80IA of the Act even though the assessee is only engaged in the business of treating bio-medical waste, which is not covered in the definition of infrastructure facility as per explanation to 80IA(4) of the Act. iii) On facts & in the circumstances of the case the Ld. CIT (Appeals) has erred in deleting the addition of Rs. 4,12,98,981/- made on account of disallowance of deduction U/s 80IA of the Act even though the assessee has been paying rent for Plant & Machinery, which shows that the facility is not owned by the assessee. 19

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018

iv) The appellant craves leave to add, amend or modify the grounds of appeal subsequently during the pendency of the appeal.”

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 22. Replying to the above, the ld. Counsel of the assessee drew our attention towards the orders of the authorities below and submitted that the issue is squarely covered by the various judgements of the Hon’ble High Court of Bombay in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (2015) 58 taxmann.com 78 (Bom) and submitted that in this case, the AO had denied deduction u/s 80IA(4) of the Act stating that there was no specific agreement with the Central Government, State Government or the Local Authority and the Hon’ble High Court, considering the similar facts and circumstances, held that there is no requirement of either a specific agreement once the facility is nothing, but, ‘infrastructural facility’ set up within the precincts of the port, then, even otherwise the deduction admissible u/s 80IA(4) of the Act is admissible. The ld. Counsel also drew our attention towards the relevant operative part of the first appellate order, specifically para 7.1 to 7.6 of the first appellate order and submitted that the engagement of the assessee in treatment of bio medical waste constitute maintaining or developing of infrastructural facility with respect to solid waste management system and the same is eligible infrastructure facility as per provisions of section 80IA of the Act.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 of section 80IA(4) of the Act do not put any bar or monetary restriction regarding investment required to be set up eligible infrastructural facility. The ld. Counsel submitted that the assessee has undertaken contract work relating to bio medical waste disposal and treatment as per the terms and conditions entered into with various authorities and it is not the allegation of the AO that any of the prescribed conditions have not been met or the appellant has not carried out the work relating to bio medical waste treatment in accordance with the terms and conditions prescribed in the contracts.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 before the AO, he also noticed that the activities of the appellant were not covered as per the provisions of section 80IA(4) of the Act and the agreement with Uttar Pradesh Pollution Control Board, column No. (iii) contains only authorization from the Pollution Control Board for various periods, the agreement with Delhi Government only specify terms and conditions for plot of land provided to the appellant by the Delhi Government for limited period and the agreement with the General Hospital, Sirsa is no an agreement with any authority as per the requirement of section 80IA of the Act.

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ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 deduction u/s 80IA(4) of the Act by the AO which was approved by the coordinate Bench of the Tribunal setting aside the revisionary order u/s 263 of the Act. Further, from another order of ITAT ‘G’ Bench dated 24.04.2018 in assessee’s own case for AY 2010-11 in ITA No.1116/Del/2015, we further observe that the ld.CIT(A), Hisar also revised the assessment order for AY 2010-11 u/s 263 and the Tribunal, allowing the appeal of the assessee, held that the Revenue did not bring to the notice of the Bench any change in the circumstances for AY 2009-10, 2011-12 and 2013-14 on the one hand and AY 2010-11 on the other. It was also held that it is difficult to take a different view from the one taken in the order dated 30.05.2016 in ITA No. 2560/Del/2015. The relevant findings of the Tribunal in its order are being reproduced below for the sake of compliance:- “11. We have perused the material papers on record in the light of the submissions on either side. Relevant contents of the assessment order dated 26/12/2011 for the AY 2009-10 read that- "Requisite information/documents have been furnished, which are placed on records. Books of accounts produced were test checked. The case was discussed with them. The assessee has filed a revised return on 26.03.2011. The company has omitted to claim a deduction under section 80IA for which it was eligible being infrastructure company carrying on solid waste management activities. Thus, the assessee has claimed deduction of Rs.1,72,76,560/-under section 80IA of the Income tax Act, 1961 in the revised return. The claim of the assessee is accepted subject to the observations that the assessee is entitled to deduction of Rs.1,66,73,315/-and other income of Rs.6,03,245/-is not eligible for deduction under section 80IA of the Income tax Act, 1961. However tax is chargeable under section 115 JB (MAT) since tax on book profit of Rs.1,78,09,927/-is more than tax on normal income." 12. A reading of the above portion of the assessment order for AY 2009-10 makes it clear that the facts are identical for both the assessment years 2009 10 and 2010-11. In the case of assessment year 2009-10 also, Ld. ClT exercised powers under section 263 of the Act and set aside the matter to the AO with similar observations as those for assessment year 2010-11. A reading of the order dated 30/05/2016 in 38

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 ITA No. 2560/Del/2015 passed by a coordinate bench of this Tribunal shows that the grounds on which the learned CIT revised the orders are not tenable and such an exercise was blatantly illegal and liable to be crashed. For the assessment year 2010-11 also CIT revised the assessment order on almost similar grounds like the order passed by the assessing officer is without determination of total income and tax payable, learned assessing officer had not made proper enquiry etc. 13. Facts being continued to be similar for both these years including wording of the assessment order, we are of the considered opinion that the findings of the coordinate bench of this tribunal for the assessment year 2009-10 are very much applicable for this assessment year also. 14. Further, there is no denial from the revenue that the assessee had submitted all the relevant documents at the time of assessment proceedings and such documents include the computation of income, copy of the audited balance sheet, copy of the tax audit report under section 44 AB, and the copy of the auditor's report in form 10 CCB also. Moreover assessment order clearly reads that all the requisite information/documents including the books of accounts were produced and with a specific reference to the eligibility of the assessee being an infrastructure company carrying on solid waste management activities, learned AO accepted the claim of the assessee. 15. Further it goes uncontroverted that for the assessment years 2011-12, 2012-13 and 2013-14 the Assessing Officer denied exemption under section 80IA to the assessee and made additions but in appeals the CIT(A) clearly giving a finding that the infrastructure facility set up by the assessee in the form of biomedical waste treatment plant is entitled to deduction under section 80IA of the Act, allowed the appeal of the assessee. 16. Revenue does not bring to our notice any change of circumstance; for the assessment years 2009-10, 2011-12 to 2013-14 on one hand and 201. 11 on the other. Facts being continued to be similar, we find it difficult to take a different view from the one taken in order dated 30/05/2016 in ITA do. 2560/Del/2015 by the Tribunal or by the first appellate authority in respect of the assessment years 2011-12 to 2013-14. 17. In these circumstances, we find that the impugned action of the CIT under section 263 of the Act being blatantly illegal, the impugned order is liable to be quashed, and we direct accordingly.”

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 first appellate order as reproduced hereinabove, we clearly observe that he ld.CIT(A) first of all noted the provisions of section 80IA(4) of the Act along with Explanation thereto. Thereafter, he examined the definition of bio-medical waste and also considered the Bio-medical Waste Management Rules, 2016 and Notification dated 08.04.2016. After analyzing the Solid Waste Management Rules, 2016, the ld. CIT(A) proceeded to consider the proposition rendered by the ITAT, Mumbai Bench in the case of ITO vs. EA Infrastructure Operations Pvt. Ltd., order dated 09.07.2010 and also adjudicated the objections raised by the AO in dismissing the claim of deduction u/s 80IA of the Act by the assessee. The ld.CIT(A), in para 7.3 considered the proposition rendered by the Hon’ble Bombay High Court in the case of CIT vs. Continental Warehousing Corporation (Nhava Sheva) Ltd. (supra) and also considered the proposition rendered by the coordinate Bench of the ITAT, Ahmedabad in the case of En-Vision Enviro Engineers (P) Ltd., 150 TTJ 621 (Ahd). The ld.CIT(A) finally held that the engagement of the assessee in the treatment of bio-medical waste constitutes maintaining or developing of infrastructural facility with respect to solid waste management system which is an eligible infrastructural facility as per the provisions of section 80IA(4).

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 the Bench, rebutting the allegation of the AO that the assessee do not own any plant and machinery as it had paid rent thereon, the ld. Counsel submitted the copies of the financial statements including balance sheet and chart of relevant FY showing claim of depreciation which reveals that the assessee has deployed and set up plant and machinery and had also claimed depreciation thereon which was allowed by the AO without any dispute or doubt, thus, inadvertent mentioning of rent payment in P&L Account on plant & machinery does not raise any bar regarding claim of deployment of plant & machinery by the assessee for setting up of infrastructure facility on which claim of deduction u/s 80IA(4) has been made. In view of the above, we are in agreement that the conclusion drawn by the ld.CIT(A) that the appellant assessee has set up bio-medical facility as per the provisions of section 80IA(4) of the Act, there is no monetary restriction on the amount of investment required to set up eligible infrastructure facility the appellant assessee has carried out the work contract with various hospitals and local government bodies relating to treatment, management and disposal of bio-medical waste as per the terms and conditions entered with various authorities which has been noted by the ld.CIT(A) in the first appellate order. He rightly noted that it is not an allegation of the AO that any of the prescribed conditions have not been met or else the appellant has not carried out the work relating to bio- medical waste treatment in accordance with the terms and conditions prescribed in the contracts. After recording the above findings, the ld.CIT(A) finally observed that the infrastructure facility set up by the appellant in the form of bio-medical waste treatment plant is entitled to deduction u/s 80IA(4) of the Act.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 30. At the cost of repetition, we may also point out that the Tribunal in the consistent orders for AYs 2009-10 and 2010-11 dated 30.05.2016 and 24.04.2018 respectively, has held that the Revenue does not bring to the notice of the Bench any change of circumstances for AY 2009-10, 2010-11 to 2013-14 and 2010-11 and the facts being continued to be identical and similar. Therefore, after allowing appeal of the assessee against the order of CIT, Hisar for AY 2009-10 and 2010-11, we safely presume that the assessment order allowing claim u/s 80IA of the Act has been upheld by the Tribunal setting aside the report of the action u/s 263 of the Act. On being asked by the Bench, the ld. Sr. DR could not assist us as to whether any appeal has been filed by the Department against the said orders of the Tribunal and these orders have been set aside or modified in any manner. In view of the foregoing, we reach to a final logical conclusion that there is no ambiguity, perversity or any other valid reason to interfere with the findings arrived at by the ld. CIT(A) and, therefore, we uphold the same. Consequently, the appeal of the Revenue for AY 2012-13 being devoid of merits is dismissed.

ITA Nos.5701-5704/Del/2016 ITA No.7380/Del/2018 32. In the result, all the five captioned appeals filed by the Revenue are dismissed. Order pronounced in the open court on 07.02.2023. Sd/- Sd/- (PRADIP KUMAR KEDIA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated:07th February, 2023. dk Copy forwarded to : 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asstt. Registrar, ITAT, New Delhi