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Income Tax Appellate Tribunal, JAIPUR BENCHES, JAIPUR
Before: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 287/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 Hkkxpan] ys[kk lnL; ds le{k BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, AM vk;dj vihy la-@ITA No. 287/JP/2018 fu/kZkj.k o"kZ@Assessment Year : 2014-15 cuke The ITO, M/s Marathon India Ltd., Vs. Ward-3(2), D-248, Bihari Marg, Banipark, Jaipur. Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AABCM 1858 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri B. L. Agarwal (C.A.) jktLo dh vksj ls@ Revenue by : Smt. Seema Meena (JCIT) lquokbZ dh rkjh[k@ Date of Hearing : 21/06/2018 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 27/06/2018 vkns'k@ ORDER
PER: VIJAY PAL RAO, J.M. This appeal by the Revenue is directed against the order of dated 05.12.2017 of ld. CIT(A), Jaipur for A.Y. 2014-15. The Revenue has raised the following ground as under:- “1. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) is justified in allowing the deduction U/s 80IE on the ground that Tax Audit Report alongwith Form No. 10CCB were filed before the AO at the time of assessment proceedings with a certificate that the above said Forms had been
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd.
signed by the Chartered Accountant on 27.06.2014 whereas it is mandated by Income Tax Act rules to file relevant tax audit report and Form 10CCB electronically?”
The assessee is engaged in the business of manufacturing of
batteries and deactivator. The assessee filed its return of income on
26.08.2014 declaring total income of Rs. 1,82,230/- after claiming
deduction U/s 80IE of Rs. 73,21,215/-. The AO disallowed the claim of
deduction U/s 80IE of the Act on the ground that the assessee did not
file audit report in Form No. 10CCB electronically along with the return
of income. On appeal, the ld. CIT(A) has allowed the claim of the
assessee by considering the fact that the assessee has filed the tax
audit report alongwith Form No. 10CCB during the course of
assessment proceedings and therefore, following the decisions on the
point of ld. CIT(A) directed the AO to allow the claim U/s 80IE of the
Act.
Before us, the ld. DR has submitted that as per the provisions of
Section 80IE(6) r.w.s. 80IA(7) of the IT Act the assessee shall file
audited accounts alongwith audit report in the prescribed form and duly
signed by the Chartered Accountant electronically with the return of
income. The ld. DR has also referred to Rule 12(2) of the Income Tax
Rules and submitted that the audit report in Form No. 10CCB shall be 2
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd.
filed electronically. Thus, the ld. DR has submitted that when the
assessee failed to comply with the provisions of Section 80IE(6) as well
as Section 80IA(7) of the Act then, the claim of deduction is not
admissible. She has relied upon the orders of the Assessing Officer.
On the other hand, the ld. AR has submitted that the assessee
filed tax audit report along with Form No. 10CCB during the course of
assessment proceedings and claimed deduction U/s 80IE of the Act.
Therefore, merely because tax audit report was not filed alongwith
return of income the claim of the assessee cannot be denied on
technical reasons. In support of his contention, he has relied upon the
decision of the Hon’ble Supreme Court in case of CIT vs. G.M.
Knitting Industries (P.) Ltd. 376 ITR 456 and submitted that the
Hon’ble Supreme Court has upheld the order of the Hon’ble High court
allowing the claim of deduction U/s 80IB of the IT Act and observed
that even though necessary certificate in Form 10CCB alongwith return
of income had not been filed but same was filed before final order of
assessment was made. Thus it was held that the assessee was entitled
to claim deduction U/s 80IB of the Act. The ld. AR has also relied upon
the decision of the Hon’ble Allahabad High Court in case of CIT vs.
Fortuna Foundation Engineers & Consultants (P.) Ltd. 81 3
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd.
taxmann.com 189 and submitted that the Hon’ble High Court has
held that the filing of audit report in Form No. 10CCB alongwith return
of income is not mandatory and only directory and assessee cannot be
denied the claim of deduction if it filed audit report in Form No. 10CCB
in the course of assessment proceedings. The ld. AR of the assessee
has supported the impugned order of the ld. CIT(A).
We have considered the rival submissions as well as the relevant
materials on record. The AO has not disputed the eligibility of the
assessee for deduction U/s 80IE of the Act being nature of business and
undertaking of the assessee engaged in the manufacturing of goods or
articles. Only reasons for disallowance of claim of deduction U/s 80IE of
the Act by the AO is not filing of the audit report in form No. 10CCB
along with the return of income. It is also not in disputed that the
assessee filed the requisite tax audit report in Form No. 10CCB during
the course of assessment proceedings and before the assessment order
was passed by the AO. The Hon’ble Madras High Court in case of CIT
vs. AKS Alloy Pvt. Ltd. 205 Taxman 11 while considering an
identical issue of not filing of audit report in Form 10CCB along with
return of income but filed the same before the assessment was
completed has held in paras 5 to 13 as under:- 4
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd.
“5. In so far as it relates to the substantial question of law (1) is concerned, namely, whether the filing of audit report in Form 10CCB is mandatory, it is well settled by a number of judicial precedents that before the assessment is completed, the declaration could be filed. In fact, the said issue came to be decided by the Karnataka High Court in the case in CIT v. ACE Multitaxes Systems (P.) LTD. [2009] 317 ITR 207(Kar.), wherein it was held that when a relief is sought for under Section 80IB of the Act, there is no obligation on the part of the assessee to file return accompanied by the audit report, thereby, holding that the same is not mandatory. Therefore, it is clear that before the assessment is completed if such report is filed, no fault could be found against the assessee. That was also the view of the Delhi High Court in the case in CIT v. Contimeters Electricals (P.) Ltd. [2009] 317 ITR 249/ 178 Taxman 422(Delhi), wherein the Delhi High Court, by following the judgements of the Madras High Court in CIT v. A.N. Arunachalam [1994] 208 ITR 481/ 75 Taxman 529and in CIT v. Jayant Patel [2001] 248 ITR 199/117 Taxman 707 (Mad.) held that the filing of audit report along with the return was not mandatory but directory and that if the audit report was filed at any time before the framing of the assessment, the requirement of the provisions of the Act should be held to have been met.
That is also the consistent view of the other High Courts, including the High Court of Bombay in CIT v. Shivanand Electronics [1994] 209 ITR 63/ 75 Taxman 93(Bom.), apart from Gujarat High Court in Zenith Processing Mills v. CIT [1996] 219 ITR 721(Guj.) and Punjab and Haryana High Court in CIT v. Mahalaxmi Rice Factory [2007] 294 ITR 631/ 163 Taxman 565(Punj. & Har).
The Calcutta High Court in the case in the CIT v. Berger Paints (India) Ltd. [2002] 254 ITR 503/[2003] 126 Taxman 435(Cal.)
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd.
has also concurred with the said view which was followed by the Tribunal in this case.
Mr. T. Ravikumar, the learned counsel for the appellant is not able to produce any other judgement contrary to the above said views consistently taken.
In the light of the above, by virtue of hierarchy of judgements which are against the Revenue, the substantial question of law (1) would not arise at all for consideration.
In so far as the substantial question of law (2) is concerned, it relates to the deletion of addition of Rs. 1,20,00,000/- made under Section 68 of the Act by the assessing officer as unexplained share application money, and the issue has been covered by the judgement of the Madras High Court in the case in CIT v. Gobi Textiles Ltd. [2007] 294 ITR 663/[2008] 170 Taxman 142(Mad.) holding against the Revenue.
In such view of the matter, the substantial question of law (2) also does not merit consideration.
In fact, to arrive at such conclusion, the Madras High Court has relied on the judgement of the Delhi High Court in CIT v. Stellar Investment Ltd. [1991] 192 ITR 287/ 59 Taxman 568(Delhi), which judgement has been confirmed by the Honourable Apex Court and the same was reported in CIT v. Steller Investment Ltd. [2001] 115 Taxman 99/ 251 ITR 263(SC).
In the light of the above, no question of law much less substantial question of law would arise for consideration. Accordingly, the tax case appeal stands dismissed. Connected miscellaneous petition is closed. However, there is no order as to costs.”
ITA No. 287/JP/2018 ITO vs. M/s Marathon India Ltd. The order of Hon’ble Madras High Court has been affirmed by the Hon’ble Supreme Court in case of CIT vs. G.M. Knitting Industries (P.) Ltd.(supra). Accordingly, in view of the various binding precedent as relied upon by the ld. CIT(A) while allowing the claim of the assessee, we do not find any error or illegality in the impugned order of the ld. CIT(A). Hence, we uphold the impugned order of the ld. CIT(A).
In the result, the appeal of the Revenue is dismissed.
Order pronounced in the open court on 27/06/2018.
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