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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
PER R.S. SYAL, VP: This appeal filed by the assessee is directed against the order dated 13-12-2021 passed by the National Faceless Appeal Centre u/s.250 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2018-19. 2. There is delay of 06 days in presenting the appeal before the Tribunal. The assessee filed the appeal on 17-02-2022. Prima- facie, it appears that the delay pertains to Covid-19 pandemic
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period. Therefore, the said delay is condoned by virtue of the
judgment of the Hon’ble Supreme Court in Cognizance for
Extension of Limitation, In re 438 ITR 296 (SC) read with
judgment in Cognizance for Extension of Limitation, In re 432 ITR
206 (SC) dated 08-03-2021 and 421 ITR 314.
The only issue raised in this appeal is against not allowing the
deduction u/s.80P on the ground that the assessee raised claim for
such deduction during the course of assessment proceedings and not
in the return of income.
Succinctly, the facts of the case are that the assessee raised
claim for deduction u/s.80P during the course of assessment
proceedings, which was denied by the AO considering the
provisions of section 80A(5) r.w.s 80AC. The claim was rejected
primarily on the ground that it cannot be entertained except through
the return of income. The ld. CIT(A) echoed the assessment order
on this point.
We have heard the ld. DR and gone through the relevant
material on record. There is no appearance from the side of
assessee despite notice. We are, therefore, proceeding to dispose off
the appeal ex parte qua the assessee.
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It is seen that similar issue came up for consideration before
the Nagpur Bench of Tribunal in the case of Krushi Vibhag
Karmchari Vrund Sahakari Pat Sanstha Maryadit (ITA
No.182/NAG/2019). Vide order dated 07-10-2022, the Tribunal has
accepted the assessee’s contention. The reasoning has been given in
Para 13 of the order, which is reproduced as under :
“13. On going through the judgments in G.M. Knitting Industries (supra) in juxtaposition to Wipro Limited (supra), the principle which emerges is that the fulfillment of requirement of making a claim for exemption under the relevant sections of Chapter III in the return of income is mandatory, but when it comes to the claim of a deduction, inter alia, under the relevant sections of Chapter VI-A, such requirement becomes directory. In the latter case, the making of a claim even after the filing of return but before completing the assessment, meets the directory requirement of making a claim in the return of income. The instant case involves deduction u/s 80P and hence, would be governed by the principle laid down in G.M. Knitting Industries (supra), as per which the making of a claim of deduction is mandatory but the timing is directory. Even if the claim is made during the course of assessment proceedings, such a claim has to be allowed. In view of the foregoing discussion, I am satisfied that the authorities below were not justified in rejecting the assessee’s claim of deduction u/s 80P only on the ground that such a claim was not made in the return but during the course of assessment proceedings. The impugned order is ergo set aside and the matter is remitted to the file of the AO for examining the claim of deduction u/s 80P on merits.”
The ld. DR fairly admitted that the facts and circumstances of
the instant case are mutatis mutandis similar to those considered and
decided by the Nagpur Bench of the Tribunal in the above noted
case. The only reason taken by the AO for refusing the deduction is
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not making of claim in the return of income. Respectfully following
the precedent, we overturn the impugned order and direct to grant
deduction u/s.80P of the Act.
In the result, the appeal is allowed.
Order pronounced in the Open Court on 21st December,
2022.
Sd/- Sd/- (PARTHA SARATHI CHAUDHURY) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; �दनांक Dated : 21st December, 2022 Satish
आदेश क� ��त�ल�प अ�े�षत/Copy of the Order is forwarded to: 1. अपीलाथ� / The Appellant; 2. ��यथ� / The Respondent; 3. The CIT(A) concerned 4. The CIT concerned िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, पुणे “A” / 5. DR ‘A’, ITAT, Pune गाड� फाईल / Guard file 6.
आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune
5 ITA No. 131/PUN/2022
Date 1. Draft dictated on 21-12-2022 Sr.PS 2. Draft placed before author 21-12-2022 Sr.PS 3. Draft proposed & placed before the JM second member 4. Draft discussed/approved by Second JM Member. 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *