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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: SHRI KUL BHARAT & SHRI MANISH BORAD
O R D E R PER SHRI KUL BHARAT, JM The above appeal filed by the Revenue is directed against the order of ld. CIT(A)-II, Indore, dated 07.10.2016. There is delay of 479 days in filing the appeal by the Revenue. Ld. Sr. DR submitted that TA/peon of the office of the Respondent was sent to submit the appeal before the Tribunal on 06.2.2017 and he was instructed that after receiving of appeal in the office of the ITAT, Indore, copies of the same should be submitted in other offices too, including the office of the CIT(DR), ITAT, Indore. Inadvertently, both the copies of appeal [copy to be submitted in Tribunal and copy to be submitted in the office of the CIT(DR), ITAT, Indore] were submitted in the office of CIT(DR), ITAT, Indore and in the office of the Tribunal by bona fide mistake, copy of the 2 Su-Sampada appeal was not filed as is evident from the copies of acknowledgment and affidavit duly sworn by ITO-5(1), Indore enclosed before the Tribunal. Thus, ld. Sr. DR prayed for condoning the delay submitting that if delay is not condoned, the Revenue will be deprived of justice for the bona fide mistake which was occurred circumstantially and due to human mistake committed by the concerned TA unintentionally and lack of knowledge. On the other hand, learned Counsel for the assessee submitted that the delay should not be condoned as under the Limitation Act, each day’s delay has to be explained.
Learned Counsel for the assessee also relied on the decision of Hon'ble Supreme Court passed in case of CIT vs. Hapur Pilkhuwa Development Authority (SLP No.26127/2018) on 27.8.2018.
Having gone through the rival submissions and material available on record, we find that that TA of the office of the Respondent had, inadvertently, filed both the copies of appeal [copy to be submitted in Tribunal and copy to be submitted in the office of the CIT(DR), ITAT, Indore] in the office of CIT(DR), ITAT, Indore and in the office of the Tribunal by bona fide mistake, copy of the appeal was not filed as is evident from the copies of acknowledgment and affidavit duly sworn by ITO-5(1), Indore enclosed before the Tribunal which resulted into a delay of 479 days in filing the appeal before this Tribunal. Thus, we are of the view that delay deserves to be condoned as for the bona fide mistake which was occurred circumstantially and due to human mistake and lack of knowledge, the justice should not be deprived of.
So far as the Limitation Act and the decision of Hon'ble Supreme Court
3 Su-Sampada CIT vs. Hapur Pilkhuwa Development Authority (SLP No.26127/2018) on 27.8.2018 is concerned, we find that the Revenue has, through documentary evidences filed before us, explained the delay of each day and the aforesaid decision of Hon'ble Supreme Court would not help the contention of the learned Counsel for the assessee because in that decision, the Hon'ble Supreme Court did not condone the delay of the appeal of the Revenue due to misleading statement given before the Hon’ble Court. But, in the present case, that is not so rather the Revenue was able to prove the circumstances through documentary evidences as discussed hereinabove which led the delay in filing the appeal before this Tribunal. Accordingly, we condone the delay. Now, we deal the merits of the case.
The Revenue has raised the following grounds of appeal:
“1. Whether on the facts and in circumstances of the case, ld. CIT(A) has erred in accepting the revised return filed on 10.9.2012 beyond the time allowed u/s 139(5) in which claim of deduction u/s 80IB(10) of Rs.3,94,16,079/- was made ignoring the fact that no such claim was made in original return filed on 29.9.2011.
2. Whether on the facts and in circumstances of the case, ld. CIT(A) has erred in restricting the disallowance u/s 80IB(10) to only Rs.15,04,494/- on the pro-rata basis based on size of individual flats/row houses and allowing the balance amount u/s 80IB(10) of the I.T. Act, 1961.
3. Whether on the facts and in circumstances of the case, ld. CIT(A) has erred in allowing set off of earlier year’s unabsorbed losses of Rs.21,63,294/-.”
4. Facts, in brief, as noted by the Assessing Officer are that the assessee filed return of income on 29.9.2011 declaring income at Rs.3,94,16,080/-.
4 Su-Sampada However, the assessee filed its revised return of income on 10.9.2012 showing nil income as it claimed deduction u/s 80IB(10) at Rs.3,94,16,079/-.
The Assessing Officer asked the assessee to file reasons for revising the income. The assessee, relying upon the relevant circulars and case-laws, submitted that the said claim is duly made in the return of income which is evident from the enclosed Xerox copy of acknowledgement of income in which the said deduction is duly highlighted with the highlighter. It is undisputed that in case of E-Return which is mandatory, the acknowledgement automatically generates. If the assessee would have not claimed the deduction u/s 80IB(10), how the same is appearing in the acknowledgement. Presumingly, it seems that the same is not appearing in your record due to the reason of software problem, bad efficiency and un-effectiveness of direct tax administration to create a data base on its various aspects due to this there is a lack between the back office and front office which resulted into serious grievance among the general public for which as per the settled position of law, the assessee could not be penalized by rejecting the claim. However, the Assessing Officer did not agree with the submission put forth before him on all the issues and assessed the income at Rs.4,15,80,004/-. Felt aggrieved, the Revenue is in appeal before us.
So far as ground no.1 raised by the Revenue is concerned, the ld. Sr.
DR relied upon the order of the Assessing Officer and submitted that the assessee failed to substantiate its claim before the Assessing Officer. On the other hand, the learned Counsel for the assessee relied on the order of the ld.
5 Su-Sampada CIT(A) and submitted that the assessee had filed the return of income on 29.9.2011 through E-filing duly making the claim of deduction u/s 80IB(10) as is evident from the acknowledgement on record which was automatically generated by CPC. Having gone through the CBDT Circular No.14 (XL-35) dated 11.4.1955 and relevant case-laws, ld. CIT(A) was justified in agreeing with the submission of the assessee.
We have considered the rival submissions of both the parties and gone through the material available on the file. We find that before us, the Revenue could not controvert the submission of the learned Counsel for the assessee that the assessee had filed the return of income on 29.9.2011 through E-filing duly making the claim of deduction u/s 80IB(10) as is evident from the acknowledgement on record which was automatically generated by CPC. The CBDT Circular No.14 (XL-35) dated 11.4.1955 is binding in nature but the Assessing Officer could not appreciate the same. Therefore, we do not find any merit in the ground no.1 raised by the Revenue. Our view is fortified by the following case-laws:
CIT vs. Bharat Aluminium Ltd., 303 ITR 256 (Del); 2. CIT vs. Jai Parabolic Springs Ltd., 172 Taxman 258 (Del); 3. CIT vs. Dhampur Sugar Ltd., 90 ITR 236 (All.); 4. Chicago Pneumatics India Ltd. vs. DCIt (15 SOT 252) (Mum); 5. Bharat Starch Industries Ltd. vs. CIT (URO) (ITA No.1611/K/2003); 6. Thomas Kurian vs. ACIT, 108 TTJ 439 (Cochin); and 7. Xerox India Ltd. vs. DCIT (ITA No.1580/Del/2010) (URO).
So far as the second ground raised by the Revenue is concerned, the ld. Sr. DR relied upon the order of the Assessing Officer and submitted that 6 Su-Sampada Assessing Officer. On the other hand, the learned Counsel for the assessee relied on the order of the ld. CIT(A) and submitted that the Assessing Officer also raised this ground for the assessment year 2013-14 in assessee’s own case before the ITAT, Indore and on similar set of facts and circumstances, this very Bench has dismissed the ground of the Revenue.
We have considered the rival submissions of both the parties and gone through the material available on the file. The learned Counsel for the assessee has submitted that this Bench has already taken a view on similar set of facts and circumstances in favour of the assessee. Before us, the contention of the learned Counsel for the assessee was not controverted by the ld. Sr. DR by bringing any contrary material on record. We find that this Bench in assessee’s own case for the assessment year 2013-14 (Departmental Appeal bearing has dismissed the similar ground raised
by the Revenue. Our view also finds support from the decisions ACIT vs. Smt. Saroj Kapoor (2010)
14. ITJ 585 (Indore Tribunal); Abhay Dare vs. ACIT (2015)
26. ITJ 718 (Indore Tribunal) and ITO vs. Kuber Developers (2019)
34. ITJ 353 (Raipur Tribunal).Therefore, by following the same, we dismiss the present ground no.2 too raised by the Revenue.
So far as the ground no.3 raised by the Revenue is concerned, we find that this Bench vide order dated 29.6.2018 for the assessment year 2008-09 set aside the issue of brought forward business and depreciation losses for the assessment years 2002-03 to 2004-05 to the file of the Assessing Officer
7 Su-Sampada to carry out necessary verification and if returns of income filed within the due dates prescribed u/s 139(1) of the Act then the assessee should be given the benefit of set off of unabsorbed business and depreciation losses of earlier years. Learned Counsel for the assessee submitted that after verification, the Assessing Officer has allowed the set off of business and depreciation losses to the assessee. The ld. CIT(A) has also allowed the claim of brought forward business and depreciation losses for the assessment years 2009-10 & 2010- 11 and the Revenue, while filing the appeals for the assessment year 2009-10 & 2010-11, did not raise the ground before the Tribunal. This ground is taken by the Revenue first time in the present year. This submission of the learned Counsel for the assessee was not controverted by the ld. Sr. DR by bringing any contrary material on record. We, therefore, do not find any infirmity in the order of the ld. CIT(A). This ground of the appeal of the Revenue is also dismissed.
In result, departmental appeal stands dismissed.
Order was pronounced in the open court on 31.10.2019.