NY GREEN ENERGY PRIVATE LIMITED FORMELY KNOW AS SUNKON ENERGY PVT LTD,SURAT vs. DCIT CIRCLE 2(1)(1), SURAT

3. Facts of the case in brief are that assessee filed its return of income (ROI) for AY 2021-22 on 21.12.2021 declaring total income at Rs.1,77,72,803/- after claiming deduction of Rs.7,61,36,067/- u/s 80-IA of the Act. Form-10CCB, as required u/s 80-IA of the Act, was subsequently filed on 01.03.2022. The ROI was processed by the CPC on 28.12.2022 by disallowing the claim of deduction u/s 80-IA of the Act. The claim of the assessee to allow credit of brought forward MAT to be adjusted against the demand raised was also rejected.

4. Against the order of CPC, the assessee filed appeal before the CIT(A). The CIT(A) noted that the assessee had also claimed deduction u/s 80-IA in the preceding year and the impugned claim for deduction u/s 80-IA of the Act in the instant ROI is for the second assessment year. The claim of assessee was allowed in the preceding year i.e., AY 2020-21. The CIT(A) further observed that the assessee had filed the audit report along with the return of income (ROI, in short) on 21.12.2021 within the time limit specified u/s 139(1) of the /AY.21-22 NY Green Energy Pvt. Ltd. Act. However, the assessee filed the prescribed Form No.10CCB on 01.03.2022. The assessee had argued that the specified date for filing audit report u/s 44AB was extended upto 15.03.2022 for AY 2021-22. Since the prescribed form was filed before the specified date, assessee contended that it had fulfilled all basic conditions for claim of deduction u/s 80-IA of the Act. However, the CIT(A) was not satisfied with the reply of the assessee and held that as per the provisions of Section 80-IA(7) of the Act, which is applicable for claim of deduction u/s 80- IA of the Act, the same cannot be allowed unless audit report in Form-10CCB is furnished along with the ROI. Therefore, in absence of accompanying audit report, the claim of deduction was not correct. Hence, the CIT(A) upheld the intimation u/s 143(1) of the Act by the CPC.

5. Further aggrieved, the appellant has filed present appeal before the Tribunal. The Ld. AR of the appellant filed a paper book including the ROI for AY 2021-22, Form-3CA/3CD, Form 10CCB, Form 29B, intimation u/s 143(1) and reply to the notice u/s 250 before the CIT(A). The Ld. AR has also filed various case laws in favour of the appellant. He submitted that the ROI u/s 139(1) and the audit report u/s 44AB of the Act were filed on 21.12.2021, within the specified date. However, Form-10CCB was filed on 01.03.2022 before the specified date for filing audit report u/s 44AB of the Act, which had been extended upto 15.03.2022. The ROI was processed by CPC u/s 143(1) on 28.12.2022. Thus, Form-10CCB had been filed much before the processing of ROI u/s 143(1) of the Act. Hence, deduction u/s 80-IA was allowable to the /AY.21-22 NY Green Energy Pvt. Ltd. assessee and the adjustment by CPC was not proper. The Ld. AR relied on the various decisions for the above contention: (i) CIT vs. G.M.Knitting Industries (P.) Ltd. (2016) 71 taxmann.com 35 (SC) (ii) CIT vs. AKS Alloys (P.) Ltd. (2012) 18 taxmann.com 25 (Mad), (iii) Niteshkumar J Shah vs. DCIT in dated 12.07.2023 and (iv) Desai Infra Projects (I) Pvt. Ltd. Vs. CIT(A) in ITA No.1852/PUN/2024 dated 30.12.2024 and submitted that under similar facts and circumstances of the case, the Hon’ble Supreme Court, Hon’ble High Court and the Tribunals have allowed appeal of the appellants. Since the facts are similar, he requested that the appeal of the appellant may be allowed.

6. On the other hand, Ld. CIT-DR for the Revenue supported the order of lower authorities. He submitted that the appellant had not filed Form-10CCB along with the ROI and hence, the CPC has correctly disallowed the claim of deduction u/s 80-IA of the Act. The CIT(A) has rightly upheld the adjustment in the intimation u/s 143(1) of the Act.

7.1 Accordingly, in the light of the above discussion, in our considered view, ld. CIT(A) has erred in facts and in law in not allowing the claim of the assessee on the ground that benefit of section 80-IA of the Act is not available to the assessee if the assessee does not e-file Form 10CCB along with return of income when the assessee admittedly furnished Form 10CCB, prior the return of income filed by the assessee being processed by the Department u/s 143(1) of the Act.” 7.1 We also find that the ITAT Pune Benches in case of Desai Infra Projects (I) Pvt. Ltd. (supra) allowed the appeal of appellant by deciding as under:

“6.4 Since the assessee in the instant case has admittedly field the audit report in Form-10CCB prior to the processing of the return, therefore, respectfully following the decisions cited (supra), we are of the considered opinion that assessee cannot be denied deduction u/s 80IA(4) of the Act. Accordingly, the order of the Ld. CIT(A) is reversed and the grounds raised by the assessee are allowed.” 7.2 Facts of the present case are similar to the facts of the decisions of the ITAT, Ahmedabad and Pune, cited supra. The ROI was filed by appellant on 21.12.2021. The Form-10CCB was filed on 01.03.2022. Subsequently, the ROI was processed by the CPC on 20.12.2022. It may be mentioned that the date for filing audit report u/s 44AB had been extended upto 15.03.2022 for AY /AY.21-22 NY Green Energy Pvt. Ltd. 2021-22. Thus, the appellant has filed the prescribed Form-10CCB before the extended date of filing audit report u/s 44AB of the Act. The ROI was processed u/s 143(1) of the Act by the CPC nine months after filing of Form- 10CCB. Hence, the case of the appellant is squarely covered by the decisions of Hon’ble Supreme Court and the co-ordinate Benches of ITAT Ahmedabad and Pune discussed above. Following the ratio of the above decisions, the order of CIT(A) is set aside and appeal of assessee is allowed.