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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 174/JP/2018
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR Jh fot; iky jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SINGH YADAV, AM vk;dj vihy la-@ITA No. 174/JP/2018 fu/kZkj.k o"kZ@Assessment Years : 2014-15 cuke Dy. Commissioner of Income M/s Bhagwati Hotels & Resorts Ltd., Vs. Tax, Circle-4, Jaipur. F-214, Road No. 10, VKI Area, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN No. AABCB 9972 G vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Smt. Seema Meena (JCIT) fu/kZkfjrh dh vksj ls@ Assessee by : Shri P.C. Parwal (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 04.04.2018. ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 05/04/2018.
vkns'k@ ORDER
PER: VIKRAM SINGH YADAV, AM
The appeal is filed by the Revenue against the order of Ld. CIT(A)-2,
Jaipur dated 29.11.2017 for the A.Y. 2014-15 wherein the Revenue has
challenged the action of the Ld. CIT(A) in deleting the disallowance of
deduction u/s 80IA ignoring the provision of Section 80AC and 80IA(7)
wherein the assessee was mandatory required to file the audit report in Form
No. 10CCB electronically on or before the due date of filing the return of
income.
Briefly, the facts of the case are that the assessee company was
engaged in the activity of power generation and distribution and its project
2 ITA No. 174/JP/2018. M/s Bhagwati Hotels & Resorts Ltd., Jaipur.
was running at Sodamada, Jaisalmer from the Financial Year 2003-04 and
during the year under consideration, deduction u/s 80-IA(4)(iv) has been
claimed for the first time amounting to Rs. 56,74,556/-. The Assessing Officer
observed that in terms of provision of Section 80IA(7) read with sub rule (2)
of Rule 12 of the Income Tax Rules, the assessee company was required to
furnish the audit report in Form No. 10CCB electronically along with the return
of income and given that the assessee has not complied with the same, the
deduction claim u/s 80IA amounting to Rs. 56,74,556/- was denied to the
assessee company.
Being aggrieved, the assessee carried the matter in appeal before the
Ld. CIT(A) and it was submitted that the only default on the part of the
assessee is that it has not filed the audit report electronically but there is no
dispute as to the fact that the assessee has obtained the audit report before
the due date and filed the audit report manually before the Assessing Officer
during the course of assessment proceedings and it is thus eligible to claim
deduction under section 80IA of the Act. It was further submitted that this
being the first year for claim of deduction u/s 80IA and furnishing the audit
report in Form 10CCB, the amendment relating to filing of the audit report
electronically has missed the attention of the assessee company.
3 ITA No. 174/JP/2018. M/s Bhagwati Hotels & Resorts Ltd., Jaipur.
The Ld. CIT(A) referred to decision of the Co-ordinate Bench in case of
Khetan Tiles Pvt. Ltd. ITA No. 353 & 505/JP/2017 dated 09.08.2017 wherein it
was held that while filing of the audit report is mandatory, the further
condition that it should be filed with the return of income is directory in nature
and so long as the audit report has been filed during the course of
assessment proceedings, substantial compliance has been made by the
assessee company. Drawing support from the said decision and submissions
filed by the assessee company, the Ld. CIT(A) has allowed the claim of
deduction u/s 80IA of the Act.
During the course of hearing, the ld. AR reiterated the submissions as
made before the Ld. CIT(A) and also relied on the decision of the Co-ordinate
Bench in the case of Khetan Tiles Pvt. Ltd (Supra). Per contra, Ld. D/R relied
on the provision of Section 80IA(7) read with Rule 12(2) and submitted that
the assessee company was mandatory required to file the audit report
electronically before the specified due date of file of the return of income and
since it has failed to comply with the same, the AO has rightly denied the
claim of deduction u/s 80IA of the Act.
We have heard the rival submissions and pursued the material available on
record. It is noted that this is the first year of claim of deduction under
Section 80IA by the assessee company and the AO has stated in the
4 ITA No. 174/JP/2018. M/s Bhagwati Hotels & Resorts Ltd., Jaipur.
assessment order that despite the assessee claiming deduction u/s 80IA, copy
of the audit report required under section 80IA(7) was not filed along with the
reply dated 8.9.2015. The AO thereafter refers to the provision of Section
80IA(7) and Rule 12(2), and held that the assessee has not complied with the
relevant provisions of Income Tax and has not filed the audit report in Form
10CCB electronically along with the return of income and no explanation in
this regard has been filed inspite of assessee being asked to clarify during the
course of assessment proceedings. The AO thereafter held that the assessee
has made false deduction u/s 80IA without filing any audit report in Form
10CCB. In light of the said findings of the AO, it is clear that the assessee has
not filed the audit report electronically. However, it is not clear as to whether
the assessee has filed the audit report in Form 10CCB even manually during
the course of assessment proceedings based on what the AO has stated
initially in the assessment order. Though the assessee has stated before the
ld CIT(A) that audit report has been filed manually during the course of
assessment proceedings, there is no finding of the ld CIT(A) in this regard.
Before us, the ld AR has again reiterated the said contentions, however, there
is nothing on record to support the said contentions in terms of filing of the
audit report manually before the AO. Further, we find that the AO has stated
that the assessee has claimed false deduction under section 80IA without
filing the audit report, it seems that in absence of such a report, the AO has
had no occasion to examine the satisfaction of other conditions for claim of
5 ITA No. 174/JP/2018. M/s Bhagwati Hotels & Resorts Ltd., Jaipur.
deduction under section 80IA, being the first year of claim of such deduction.
The ld AR has stated at the Bar that there is no dispute that the assessee is
eligible to claim such deduction and in the subsequent years, the Revenue has
accepted the said claim of the assessee company and has allowed the
deduction so claimed by the assessee company. We therefore deem it
appropriate to remand the matter to the file of the AO. Where the AO
determines that the audit report in Form 10CCB has been filed manually
during the course of assessment proceedings, non-filing of such a report
electronically is only a technical breach and the same on a standalone basis
cannot be a basis for denial of deduction under section 80IA of the Act.
Further, regarding other conditions of eligibility for claim of deduction under
section 80IA, where the AO determines that the assessee has been allowed
the claim of such deduction in the subsequent years after due examination,
the AO shall allow the same for the impunged assessment year. Otherwise,
the AO shall examine the eligibility conditions and fulfillment thereof by the
assessee and determine the claim of deduction as per law. With the above
directions, the matter is set-aside to the file of the AO. The ground of appeal
is thus allowed for statistical purposes.
The appeal of the Revenue is allowed for statistical purposes.
6 ITA No. 174/JP/2018. M/s Bhagwati Hotels & Resorts Ltd., Jaipur.
Order pronounced in the open Court on 05/04/2018.
Sd/- Sd/- (Jh fot; iky jko) (foØe flag ;kno ½ (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;kf;d lnL; / Judicial Member ys[kk lnL; /Accountant Member
Jaipur Dated:- 05/04/2018. Pooja/ आदेश की प्रतिलिपि अग्रेषित@ब्वचल वf जीम वतकमत वितूंतकमक जवरू
The Appellant- Dy. Commissioner of Income-tax, Circle-4, Jaipur. 2. The Respondent – M/s Bhagwati Hotels & Resorts Ltd., Jaipur. 3. The CIT. 4. The CIT (4), 5. The DR, ITAT, Jaipur 6. Guard File (ITA No. 174/JP/2018) vkns'kkuqlkj@ By order,
सहायक पंजीकार@ Aेेपेजंदज. त्महपेजतंत