VIVEK RESIDENCY,,MADURAI vs. ITO, WARD-II (4), RANGE-II,, MADURAI

आदेश /O R D E R

PER G. MANJUNATHA, ACCOUNTANT MEMBER:

This appeal filed by the assessee is directed against the order passed by the learned Commissioner of Income Tax (Appeals)-1, Madurai, dated 23.12.2019 and pertains to assessment year 2011-12.

:-2-: ITA. No:199 /Chny/2020 2. The assessee has raised the following grounds of appeal: “1. The Order of the Commissioner of Income Tax (Appeals) is contrary to law, facts and circumstances of the case as it has been disposed in a summary manner without adverting to the case law relied on and the submissions made. 1.2 The Commissioner of Income Tax (Appeals) erred in disposing the appeal in haste in a summary manner without waiting for the order of the CBDT on the application for condonation of delay filed by the appellant. 2.1 The Commissioner of Income Tax (Appeals) erred in confirming the disallowance of Rs. 3,30,79,577/- u/s 80-18(10) by relying on the provisions of Sec.80AC. 2.2 The Commissioner of Income Tax (Appeals) ought to have appreciated that the delay in filing the return is due to a change in the constitution of the Partnership Deed. 2.3 The Commissioner of Income Tax (Appeals) erred in not considering the fact that the retirement of partners and consequent reconstitution took place during the relevant previous year, thereby resulting in the delay in filing the return. 2.4 The Commissioner of Income Tax (Appeals) ought to have appreciated that the Return has been filed well within the time provided by Sec. 139(4). 2.5 The Commissioner of Income Tax (Appeals) ought to have seen that the appellant had in fact been granted deduction u/s.80I8(10) for this very project in the earlier years and as such section 80AC would not apply to the facts of the case. 3. The Appellant craves leave to adduce grounds at the time of hearing.”

:-3-: ITA. No:199 /Chny/2020 (hereinafter referred to as “the Act”) amounting to Rs. 3,30,79,577/- . During the course of assessment proceedings, the AO noticed that the assessee has claimed deduction u/s. 80IB(10) of the Act, even though not entitled for said deduction, because the assessee did not file its return of income on or before due date for filing return of income u/s. 139(1) of the Act, to claim any deduction under Chapter VI as prescribed u/s. 80AC of the Act, and thus, denied deduction claimed by the assessee and made additions of Rs. 3,30,79,577/-. The assessee carried the matter in appeal before first appellant authority, and argued that it has filed a petition for condonation of delay in filing return of income before CBDT, and said application is pending for disposal. Therefore, the appeal may be kept in abeyance till the CBDT decides the issue of condonation. The CIT(A), however was not convinced with the explanation furnished by the assessee, and accordingly rejected the arguments of the assessee and sustained additions made by the AO towards disallowance of deduction claimed u/s. 80IB(10) of the Act. Aggrieved by the CIT(A), the assessee is in appeal before us.

:-4-: ITA. No:199 /Chny/2020 4. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. There is no dispute with regard to the fact that the appellant had filed its return of income for the impugned assessment year on 29.02.2012, which is beyond due date prescribed u/s. 139(1) of the Act. As per the provisions of section 80AC of the Act, no deduction can be claimed including deduction u/s. 80IB(10) of the Act, in case the assessee has not filed return of income within due date prescribed u/s. 139(1) of the Act. Therefore, we cannot find fault with the AO as well as CIT(A) in denying deduction claimed u/s. 80IB(10) of the Act. But fact remains that, the arguments of the assessee before the CIT(A) and even before us is that, it has filed a petition for condonation of delay u/s. 119 of the Act before the CBDT and said application is pending for disposal. Therefore, till such time CBDT dispose off petition filed by the assessee for condonation of delay, the matter may be kept in abeyance. The Ld. DR on the other hand, fairly agreed that the issue can be decided only after the CBDT decides the issue on condonation of delay in filing return of income. However, the assessee could not file any evidences to prove that it has filed petition before the CBDT, for which the ld. Counsel for

:-5-: ITA. No:199 /Chny/2020 the assesse referring to page number 64 of paper book submitted that a copy of petition filed u/s. 119 of the Act is enclosed herewith for the reference of the Bench. We find that the assessee has filed petition u/s. 119 of the Act, dated 01.09.2016 and claimed that its application is pending before the CBDT. Therefore, we are of the considered view that the issue needs to be kept in abeyance till such time CBDT disposed off petition filed by the assessee. Therefore, we set aside the issue to the file of the AO and direct the Assessing Officer to decide the issue after the CBDT decides petition filed by the assessee for condonation of delay in filing return of income for the impugned assessment year. We further make it clear that, we have not expressed any opinion on eligibility of the assessee or otherwise for claiming deduction u/s. 80IB(10) of the Act, except the issue of condonation of delay in filing return of income on or before due date of filing return of income u/s. 139(1) of the Act. Therefore, other observations with regard to eligibility of the assessee made by the AO in their order dated 29.03.2014, shall remain undisturbed, and the AO is free to decide the issue on merits in accordance with law, after considering the outcome of

:-6-: ITA. No:199 /Chny/2020 decision taken by the CBDT, on application filed by the assessee u/s. 119 of the Act.

Order pronounced in the court on 03rd November, 2022 at Chennai.

Sd/- Sd/- (महावीर �संह ) (जी. मंजुनाथ) (G. MANJUNATHA) (MAHAVIR SINGH) लेखासद�य/Accountant Member उपा�य� /Vice President

चे�ई/Chennai, �दनांक/Dated, the 03rd November, 2022 JPV आदेश की �ितिलिप अ�ेिषत/Copy to: 1. अपीलाथ�/Appellant 2. ��थ�/Respondent 3. आयकर आयु� (अपील)/CIT(A) 4. आयकर आयु�/CIT 5. िवभागीय �ितिनिध/DR 6. गाड� फाईल/GF