DY CIT, CIRCLE-17(1), MUMBAI vs. AHMED HUSSEIN DAWOODANI (L/H OF HUSSEIN ISMAIL DAWOODANI), MUMBAI

Vs Ahmed Hussein Dawoodani, (Legal Heir of Hussein Ismail Dawoodani), 161, Bara Imam Road, Null Bazar, Mumbai - 400003 Respondent ……………. [PAN: AMGPS9508P] Appearance For the Appellant/Department : Shri Prakash Kishinchandani For the Respondent/Assessee : Shri Syed Ashfaq Ahmed Nadeem Lassani Date Conclusion of hearing : 31.08.2023 Pronouncement of order : 31.08.2023 O R D E R Per Rahul Chaudhary, Judicial Member: By way of the present appeal the Revenue has challenged the order, 1. dated 16/12/2019, passed by the Ld. Commissioner of Income Tax (Appeals)-28, Mumbai [hereinafter referred to as ‘the CIT(A)’] for the Assessment Year 2012-13, whereby the Ld. CIT(A) had partly allowed the appeal of the Assessee against the Assessment Order, dated 27/03/2015, passed under Section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The Revenue has raised following grounds of appeal: 2. 1. “On the fact and in the circumstances of the case and in law, the Ld. CIT(A) has erred in deleting the disallowance u/s 80IB(10) without appreciating the fact that the assessee did not file his Return of Income u/s 139(1) of the Act.

2. On the fact and in the circumstances of the case and in law, the Ld. CIT(A) has erred in not considering the decision of the Hon’ble ITAT, Mumbai in the case of Dy. CIT v. Siroya Developers Hon’ble High Court of Calcutta in the case of CTT vs Shelcon Properties Pvt. Ltd. 370 HR 305 (CAL) and the decision of the Hon’ble High Court of Uttrakhand in the case of Umesh Chandra Dalakoti vs. ACIT (Dated 27th August 2012, in ITA No. 7/2012), wherein, it has been held that section 80CA is mandatory to allow the deduction claimed u/s 80IB of the Income Tax Act, 1961.

3. The appellant prays that the order of the CIT(A) on the above grounds be set aside and that of the Assessing Officer be restored.” The relevant facts in brief are that the Assessee, an individual, filed 3. return of income for the Assessment Year 2012-13 on 11/04/2013 declaring income of INR 15,52,697/-. The case of the Assessee was selected for scrutiny. Vide Assessment Order, dated 27/03/2015, passed under Section 143(3) of the Act, the Assessing Officer disallowed deduction claimed by the Assessee under Section 80IB of the Act and made an addition of INR 4,11,77,177/-.

In appeal, the CIT(A) overturned the decision of the Assessing 4. Officer and allowed the claim of deduction under Section 80IB of the Act vide order dated 16/12/2019. Being aggrieved, the Revenue carried the issue in appeal before the 5. Tribunal.

The Learned Departmental Representative referring to paragraph 5 6. 2 of the Assessment Order submitted that the Assessing Officer had denied the deduction claimed by the Assessee under Section 80IB of the Act on the ground that the return of income for the Assessment Year 2012-13 and filed belatedly on 11/04/2013 after expiry of the times specified under Section 139(1) of the Act. Without taking the aforesaid into consideration, the CIT(A) allowed claim for deduction made by the Assessee under Section 80IB of the Act. On perusal of the order passed by the CIT(A) we find that the same is silent on the above issue highlighted by the Ld. Departmental Representative. After some arguments, the Ld. Authorised Representative for the Assessee agreed that the issue be remanded back to the file of the CIT(A) for adjudication. Therefore, as pleaded by the Revenue in Ground No. 3, the order, dated 16/12/2019 passed by the CIT(A) is set aside with the direction to the CIT(A) to decide the appeal of the Assessee after taking into consideration the issue raised by the Revenue in the present appeal. The Assessee shall be granted a reasonable opportunity of being heard. In terms of the aforesaid, Ground No. 3 raised by the Revenue is allowed, while Ground No. 1 is allowed for statistical purposes. In view of the aforesaid, Ground No. 2 raised by the Revenue is dismissed as being infructuous.

In result, the present appeal preferred by the Revenue is partly 7. allowed.