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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SHRI KULDIP SINGH & SHRI OM PRAKASH KANT
आदेश / O R D E R PER SHRI OM PRAKASH KANT, AM:
This appeal has been preferred by the assessee against the order dated 10/12/2021 passed by the National Faceless Appeal Centre [hereinafter referred as Ld. CIT(A)] for assessment year 2018-19, raising following grounds:
ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 2 - 1.
On the facts and circumstances of the case and in law, the learned CIT(Appeal) erred in confirming the action of the AO(CPC) of denying the benefit of deduction u/s 80P amounting to Rs. 9,92,023/- and thereby taxing the entire Income of the assessee on the ground that return was filed after due date without appreciating that the assessee was liable to Audit under Co-op Societies Act and hence the extended due date for filing Income tax return applicable to it was 31st October, 2018 and the assessee had filed its return on 29th September, 2018.
2. On the facts and circumstances of the case and in law, the learned CIT(Appeal) erred in confirming the action of the AO(CPC) of denying the benefit of deduction U/s 80P amounting to Rs. 9,92,023/- and thereby taxing the entire Income of the assessee on the ground that return was filed after due date without raising any query or giving opportunity of being heard The Appellant crave leave to add, to alter to delete the above ground of appeal if necessary.
2. Briefly stated facts of the case are that the assessee is a Co-operative Housing Society located at Malabar Hills, Mumbai. Before the Ld. CIT(A), the assessee submitted that it had no business income except interest income of (i) Rs. 9,46, 842/- from Cooperative Banks and (ii) Rs. 45,181/- from Union Bank and therefore filed return of income in Form No. ITR-5, showing interest income under the head “Income from other sources” and claim deduction of Rs. 9,46,842/- under section 80P(2)(d) and Rs. ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 3 - 45,181/- u/s 80P(2)(c)(iii) of the Income Tax Act, 1961 (in short ‘the Act’). The return of income was processed by the Assessing Officer (Centralized Processing Centre) under section 143(1) of the Act vide order dated 31/05/2018, wherein the claim of deduction under section 80P of the Act was rejected.
3. On further appeal, before the Ld. CIT(A), the assessee submitted that it fulfils all the conditions specified in section 80P(2)(c)(iii) and 80P(2)(d) of the Act and therefore deduction has been claimed rightly. The Ld. CIT(A) rejected the claim of the assessee on the ground of filing return of income after the due date specified under sub-section (1) of section 139 of the Act. The relevant finding of the Ld. CIT(A) is reproduced as under:
5. DECISION: I have gone through the submission of the appellant and the order Us. 143(1) passed. On perusal of the 143(1) order, it is found that, the Ld. AO did not allow the deduction u/s. 80P at Rs.9,92,023/- because the appellant had filed Return of Income after the due date on 29/09/2018 whereas the extended due date for filing original return was 31/08/2018. Hence, deduction u/s. 80P is not applicable as per the Section 80AC (ii) of the I.T. Act, 1961. Section 80AC of Income Tax Act says that:
ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 4 - "80AC. Where in computing the total income of an assessee of any previous year relevant to the assessment year commencing on or after- (i) the 1st day of April, 2006 but before the 1st day of April, 2018, any deduction is admissible under section 80-lA or section 80-IAB or section 80-IB or section 80-IC or section 80-ID or section 80-IE: (ii) the 1st day of April, 2018, any deduction is admissible under any provision of this Chapter under the heading "C.-Deductions in respect of certain incomes", 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." The appellant also relied on various judgements of ITAT & High Courts in which all judgements are before the AY. 2018-19 and the Amendment to Section 80AC came into effect from AY. 2018-19. However, none of the case law has discussed the Amendment. Therefore, the case laws are distinguishable. Hence none of the case law is applicable in the case of the Appellant. In view of the above, I find that the disallowance of Rs.9,92,023/- u/s. 80P of the I.T. Act made by the AO is justified. Accordingly appeal of the appellant along with grounds of appeal is dismissed.
4. Aggrieved, the assessee is before the Tribunal by way of raising grounds as reproduced above.
At the outset, the Ld. Counsel of the assessee submitted that appeal has been filed with the delay of ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 5 - nine days due to global pandemic. The Ld. Counsel submitted that in view of the order dated 10/01/2022 of the Hon’ble Supreme Court in the case of Miscellaneous Application No. 21 of 2022 in Suo- moto writ petition No. 3 of 2020, where limitation would have expired during the period between 15/03/2020 till 20/08/2022, notwithstanding the actual balance of limitation remaining, all persons shall have a limitation period of 90 days from 01/03/2022. The Ld. Counsel submitted that relying on the order (supra), there is no delay in filing the appeal in view of the extended limitation period. In view of the above order of the Hon’ble Supreme Court, the appeal is held to be filed within limitation period and accordingly admitted for adjudication.
Before us, the Ld. Counsel of the assessee has filed a paper book containing pages 1 to 125. The Ld. Counsel supporting the grounds submitted that in the case of the assessee accounts have been audited by the independent auditor on 07/09/2018 as required under the provisions of the Maharashtra cooperative Societies Act, 1960 and therefore due date in the case of the assessee for filing return of income was ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 6 - 30/09/2018, whereas the assessee has filed return of income on 29/09/2018 therefore it is well within the due date of filing of return of income and the assessee is not hit by the section 80AC of the Act as held by the Ld. CIT(A). The Ld. DR on the other hand submitted that information in the form of audit report has been filed first-time before the Tribunal and therefore the issue might be restored back to the file Ld. CIT(A) for verification and deciding afresh. 7. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. The Ld. Counsel of the assessee referred to audit report filed by the independent auditor on 07.09.2018 on page 1 to 8 of the paper book along with audited financial statements. The assessee has also filed copy of the acknowledgement of the return of income which is available on page 31 of the paper book. According to the said acknowledgement, the return of income has been filed on 29/09/2018. Further, we find that explanation (2) below section 139(1) of the Act, has defined due date for filing a return of income in case of a person (other than the company), whose accounts are required to be audited ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 7 - under the Income-Tax Act or under any other law for the time being in force as 30th September of the assessment year. However, the assessee has not explained the relevant provisions of the Maharashtra Cooperative Society Act, 1960 under which the assessee was required to get its books of accounts audited. The audit report has also been filed first time before us and Ld. CIT(A) had no occasion to verify the said audit report. Therefore, in the interest of substantial justice, we feel it appropriate to restore the issue in dispute involved in the appeal to the file of the Ld. CIT(A) for deciding afresh after providing adequate opportunity of being heard to the assessee. The grounds of appeal
of the assessee are accordingly allowed for statistical purposes.
8. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court 27.06.2022 Sd/- Sd/- (KULDIP SINGH) (OM PRAKASH KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 27.06.2022 ITA 284/MUM/2022 The Acropolis Co.Op Soc Ltd., Mumbai . - 8 - KRK, PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / The CIT(A) 4. आयकर आयु�त(अपील) / Concerned CIT �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, Mumbai / DR, ITAT, Mumbai 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy//
उप/सहायक पंजीकार ( Asst. Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Mumbai