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Income Tax Appellate Tribunal, HYDERABAD BENCH “A”, HYDERABAD
PER A. MOHAN ALANKAMONY, A.M:
This appeal is filed by the assessee against the order of the Ld. CIT(A)-2, Guntur in appeal No.350/GNT/CIT(A)-2/2016-17, dated 09/04/2019 passed U/s. 154 r.w.s 250(6) of the Act for the A.Y. 2008- 09.
The assessee has raised ten grounds in its appeal however, the cruxes of the issues are that:
(i) The Ld. CIT (A) has erred in confirming the order of the Ld. AO passed U/s. 154 of the Act who had withdrawn the deduction
granted earlier U/s. 80IA of the Act vide assessment order dated 30/12/2010 because it was subsequently revealed that the assessee had filed its return of income beyond the due date of filing of the return U/s.139(1) of the Act. (ii) The Ld. CIT (A) has erred in not directing the Ld. AO to allow credit u/s 115JA of the Act towards tax paid u/s. 115JB of the Act for the AY 2006-07 and 2007-08.
The brief facts of the case are that the Ld. AO vide his order dated 25/8/2016 passed U/s. 154 of the Act withdrew the deduction granted to the assessee U/s. 80IA of the Act because the assessee had not fulfilled the condition laid down under the Act by filing the return of income within the due date U/s. 139(1) of the Act. On appeal the Ld.CIT(A) confirmed the order of Ld.AO. Aggrieved by the order of Ld.CIT(A), the assessee is in appeal before us.
At the outset on perusing the facts of the case it is revealed that subsequent to the assessment made by the Ld. AO U/s. 143(3) of the Act on 30/12/2010 and the order passed U/s. 143(3) r.w.s 147 dated 31/3/2015, the Ld. AO observed that the assessee had failed to file the return of income within the due date of filing the return of income U/s.139(1) of the Act and yet had claimed deduction U/s. 80IA of the Act which was erroneously granted in the original assessment order dated 30/12/2010. Therefore, the Ld. AO invoked the provisions of
section 154 of the Act and withdrew the benefit of deduction granted to the assessee U/s. 80IA of the Act for Rs. 4,64,53,959/-. On appeal, the Ld. CIT (A) upheld the order of the Ld. AO by observing as follows:
“6.2. ……….. One of the conditions for allowing deduction U/s. 80IA is that the appellant should file its return of income on or before the due date of filing of return U/s. 139(1) of the IT Act. The last date for filing of return of income U/s. 139(1) for AY 2008-09 is 30/09/2008. The appellant company filed its return of income on 16/10/2008. Thus, the appellant has not fulfilled the condition to claim deduction U/s 80IA of the IT Act. The Appellant’s argument before the AO that the appellant company falls U/s. 92E and the due date for filing of the return for such cases is 30/11/2008 and the appellant has filed return of income for AY 2008-09 on 16/10/2008 is within the due date is also not acceptable. The explanation 2(a)(iii) of section 139(1) of the IT Act r.w. explanatory note to the provisions of Finance Act 2008 as per circular no. 1/2009 dated 27/03/2009 is w.e.f AY 2011-12 whereas the appeal before me pertains to the AY 2008-09, therefore this argument of appellant before the AO is incorrect. The AO is correct in disallowing deduction U/s. 80IA and I upheld the action of the AO. As there is delay of 76 days in filing the appeal and there is no request for condonation of delay from the appellant, the appeal is dismissed on technical grounds and on merits also.”
Before us, the Ld. AR reiterated the submissions made before the Ld. CIT (A) and argued by stating that the assessee could not file the return of income within the due date due to technical glitches. The Ld. AR further argued that it was the second year of introduction for electronic filing of appeals. It was further argued that the order passed by the Ld. AO u/s. 154 of the Act is barred by limited as it was passed beyond four years from the end of the financial year in which order is sought to be amended. It was therefore pleaded that the order passed by the Ld. CIT(A) may be set aside and the order passed by the Ld. AO
u/s. 154 may be quashed. The Ld. DR on the other hand relied on the orders of the Ld. Revenue Authorities and prayed for upholding the same.
We have heard the rival submissions and carefully perused the materials on record. From the facts of the case, it is apparent that the original order passed by the Ld. AO U/s. 143(3) of the Act is dated 30/12/2010. It is also apparent that the Ld. AO invoking his powers U/s. 154 of the Act and has passed order on 25/8/2016, withdrawing the benefit of deduction granted U/s. 80IA of the Act, which is beyond four years from the end of the financial year in which order sought to be amended was passed ie., the original order passed u/s. 143(3) of the Act on 30/12/2010. Provisions of section 154(7) of the Act makes it abundantly clear that no amendment U/s. 154 of the Act shall be made after the expiry of four years from the end of the financial year in which order sought to be amended was passed. Therefore, it is crystal clear that the order passed by the Ld. AO u/s. 154 of the Act is beyond the period of limitation. Hence, we hereby set aside the order of the Ld. CIT (A) and quash the order passed by the Ld. AO U/s. invoking the provisions of section 154 of the Act dated 25/8/2016.
As regards the other ground raised by the assessee with respect to the claim of credit U/s. 115JAA of the Act with respect to tax paid U/s. 115JB of the Act for the AY 2006-07 and 2007-08, the assessee
ought to have claimed the same in the appropriate column in the return of income filed before the Revenue which the assessee has failed to do so (as observed from the return of income filed by the assessee enclosed in page no. 41 to 65 of the paper book). Thereafter if there was any mistake which is apparent on record in the order of the Ld.AO then the assessee ought to have sought rectification U/s. 154 of the Act or appealed against the order of the Ld. AO U/s.250 of the Act within the period of limitation. Since the assessee has failed to do so this ground raised by the assessee is devoid of merits and it is accordingly disposed off.
In the result, appeal of the assessee is partly allowed.
Pronounced in the open Court on 06th January, 2022.
Sd/- Sd/- (VIJAY PAL RAO) (A. MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER Hyderabad, Dated: 06th January, 2022. OKK Copy to:- 1) JVP Soft Private Limited, Plot No.5, Software Units Layout, Madhapur, Hyderabad-500 081. 2) Income Tax Officer, Ward-2(1), R.No. 506, 5th Floor, Plot No.6- P, Survey No.32/A, 32/P, Signature Towers, Kondapur, Hyderabad – 500084. 3) The CIT(A)-2, Guntur. 4) The Principal Commissioner of Income Tax-2, Hyderabad. 5) The DR, ITAT, Hyderabad 6) Guard File