DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE - 3,, PUNE vs. M/S. VISHRAM DEVELOPERS,, PUNE

per section 80A(5) means the claim made in the original return or revise return filed within the time. Therefore, assessee has made claim in revise return filed u/s 139(5) in time is allowable deduction. Similarly requirement of section 80AC is that return u/s 139(1) should be filed. In present case the return u/s 139(1) is filed in time. Case Laws A. S. 139 r.w.s 80: Return of income - original return filed within the due date prescribed u/s 139(1) - then any revised return filed, subsequently within the due date prescribed u/s 139(5) - the nature of original return filed u/s 139(1) and consequently, the conditions prescribed u/s 139(3) of the Act, is fulfilled and accordingly, loss claimed shall be allowed to be carried forward under the relevant provision of the Act. ACIT - 4(2)(2) v. Marks & Spencer Reliance India Pvt. Ltd, ITA No.6703/Mum/2018, A.Y. 2012-13, Bench. "D", DOH: 22/01/2020 (Mum)(Trib) B. M/s Olavanna Service Coop Bank v ITO, I.T.A no- 398/Coch/2014, dated- 17/10/2016 (ITAT)(Coch) C. The original return was filed well within the time limit prescribed under the law and the revised return filed before the AO completing the assessment that the assessee has fulfilled all the conditions u/s.80IB(10), therefore, entitled for deduction in respect of housing project. DCIT v Kamdhenu Builders and Developers / I.T.A no 7010/Mum/2010, dated-27/01/2016 (ITAT)(Mum) D. The assessee filed audit report in Form 56F when revised computation of total income was furnished before Assessing Officer, deduction under section 10AA could not be denied merely for non-filing of audit report along with return of income itself. The assessee became eligible to claim deduction under section 10AA; there would be no statutory bar provided in section 80A(5) as there was no failure on part of assessee to claim such deduction. DIC Fine Chemicals (P.) Ltd. v. DCIT, Circle- 11(1), [2019] 177 ITD 672 (Kolkata -Trib.) E. In the Explanatory Notes, the Board had clarified that the provisions of section 80A(5) were enacted to prevent the misuse of multiple deductions claimed in respect of the same profits and therefore necessary safeguards was put in place in section 80A. It was not intended to deny legitimate deduction to which the assessee is otherwise legally entitled to. CIRCULAR NO. 5/2010/(F.NO.142/13/2010-SO(TPL)], DATED 3-6-2010 F. Section 139 of the Income-tax Act, 1961 - Return of income – Revised return - Assessment year 2005-06 - For relevant year, assessee filed return under section 139(1) declaring certain taxable income - Subsequently, assessee filed revised return under section 139(5) raising a claim for carry forward of speculation loss - Assessing Officer disallowed said claim on ground that same was not raised in original return but in revised return - Tribunal took a view that once a return was revised under section 139(5) within time prescribed, original return filed under section 139(1) would not

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survive - Accordingly, Tribunal allowed assessee's claim for carry forward of speculation loss - Whether order passed by Tribunal was to be upheld - Held, yes [Para 6] [In favour of assessee] PCIT v. Babubhai Ramanbhai Patel (2017) 249 Taxman 470 (Guj.) (HC) G. Whether date of furnishing of return of income under section 139 would safely encompass within its sweep, time limit provided for filing of 'return of income' by assessee under section 139(4) as well as revised return filed by him under section 139(5) - Held, yes -[Paras 8 and 10] [In favour of assessee] Rajendra Pal Verma, v. ACIT (2019) 176 ITD 211 (Mum) (Trib.) H. Whether since section 54/54F simply mentions that unutilised portion of capital gain on sale of capital asset should be deposited before date of furnishing return of tax under section 139, in such a situation, section 139 cannot be meant only section 139(1), but it means all sub-sections of section 139 - Held, yes - [Paras 14 and 15] [In favour of assessee] ITO v. Nilima Abhijit Tannu. (2019) 177 ITD 308 (Mum) (Trib.) 7. Revised Form no 10CCB - Filed during the Assessment proceeding. 1. The A.O rejected the revised return on of the ground that the form no 10CCB is not properly filed. The same is corrected and filed before A.O during the Assessment proceeding. [ pg no. 71-76] 2. The A.O could not disallowed deduction u/s 80IB(10) merely on the ground of error in Form no 10CCB, it's only the technical mistake and it was correct during Assessment proceeding. 3. The assessee relied the following case laws: a) Section 10B of the Income-tax Act, 1961 - Export oriented undertaking (Claim for deduction) - Assessment year 2008-09 - Whether when facts and circumstances reveal that assessee was eligible for exemption under section 10B and it had been found to be in order except that instead of mentioning exemption under section 10B, while e-filing return, it was wrongly on account of typographical error mentioned section 80-IB, it could be said to be such a mistake by which exemption could be disallowed outrightly - Held, no [Para 16] [In favour of assessee] Commissioner of Income-tax v. Rajasthan Fasteners (P.) Ltd [2014] 363 ITR 271 (Rajasthan-HC) b) S. 11 : Property held for charitable purposes - Filing of Form 10 during re- assessment benefit of accumulation was available. [ S. 139 (4), 148 ] C1T v. Sakal Relief Fund (2017) 248 Taxman 31 /295 CTR 561 /152 DTR 89 (Bom.) (HC)”

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CIT(A)‟s order. The said para in the order of CIT(A) completely avoids the core issues / discrepancies narrated above. The CIT(A) granted relief to the assessee appreciating the assessee‟s explanation relating to some glitches in the software. The said para of CIT(A)‟s order does not have reasons for accepting patent discrepancies appeared in the Profit and Loss Accounts and statement of accounts, dates in the audit reports, etc. No reason is given for the anti-dated Form No.10CCB. Further, no details are given for justifying the differences in the sales figure, no reasons are given for accepting change in method of accounting. In our opinion, such an order of CIT(A) is not in tune with the provisions of section 250(6) of the Act and therefore, should be unacceptable. Therefore, we are of the opinion the matter should be remanded to the file of CIT(A) for re-adjudication of the issues and direct the CIT(A) to pass a speaking order attending to the aforesaid discrepancies with reference to the claim of deduction u/s 80IB(10) of the Act, on one side and requirement of filing the return on the other side or change in accounting method, as the case may be. The CIT(A) shall give reasonable opportunity of hearing to the assessee while re-adjudicating the aforesaid issues. Thus, the grounds raised by Revenue are allowed for statistical purposes.

Order pronounced in the open Court on 5th March, 2020.

Sd/- Sd/- S.S. VISWANETHRA RAVI D. KARUNAKARA RAO JUDICIAL MEMBER ACCOUNTANT MEMBER ऩुणे / Pune; ददनाांक / Dated : 5th March, 2020. GCVSR

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आदेश की प्रनिलऱपप अग्रेपषि / Copy of the Order forwarded to : अऩीऱाथी / The Appellant. 1. प्रत्यथी / The Respondent 2. 3. The CIT (Appeals)-3, Pune. 4. The Pr. CIT-2, Pune. 5. ववभागीय प्रतततनधध, आयकर अऩीऱीय अधधकरण, “बी” बेंच,, ऩुणे / DR, ITAT, “B” Bench, Pune. गार्ड फ़ाइऱ / Guard File. 6.

आदेशानुसार / BY ORDER, //सत्यावऩत प्रतत// True Copy// वररष्ठ तनजी सधचव / Sr. Private Secretary आयकर अऩीऱीय अधधकरण, ऩुणे / ITAT, Pune