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Income Tax Appellate Tribunal, PUNE BENCH “SMC”, PUNE
Before: SHRI D.KARUNAKARA RAO, AM & SHRI VIKAS AWASTHY, JM
PER D. KARUNAKARA RAO, AM:
This appeal filed by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-1, Kolhapur, dated 11.08.2016 for the Assessment Year 2011-12.
At the outset, the learned Counsel for assessee submitted that ground No.1 with its sub-grounds relate to the claim of deduction of income from windmill unit qua the initial assessment year. This issue was decided by the CIT(A) in favour of assessee as per discussion given in para 21 of the order of CIT(A). Therefore, the said ground can be
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dismissed as infructuous. Accordingly, without going into the merits, the ground No.1 is dismissed as infructuous. Therefore, the only ground No.2 is left for adjudication and the same reads as under:- “2. Learned CIT(A) has erred in not allowing deduction claimed by the appellant u/s. 80I(A)(1) on the ground that appellant has claimed deduction in the revised return in spite of the fact that, revised return is to cover the omission in the original return & it is continuous process of the original return.”
At the outset, on this issue also the learned Counsel for assessee submitted the issue for adjudication relates to allowability of deduction under section 80I(A) of the Income Tax Act, 1961 (in short „the Act‟) when assessee inadvertently failed to make a claim in the return of income filed under section 139(1) of the Act and however, made a claim in the revised return filed under section 139(4) of the Act within due date provided in this regard. Stating that this issue stands covered in favour of assessee by the order of Pune Bench of Tribunal in the case of Sharp Designers and Engineers India Pvt. Ltd. Vs. ACIT in ITA No.2263/PUN/2014, relating to assessment year 2010-11 vide consolidated order dated 29.01.2018. The learned Counsel for assessee brought our attention to para 8 at page 7 of the said order and submitted the similar issue was raised.
After considering the same, we find the issue now stands covered in favour of assessee. The assessee is entitled to claim deduction under section 80I(A) of the Act when the return of income is filed with grounds raised for the first time in revised return filed within due date notwithstanding restrictions provided in section 80AC of the Act. The relevant finding of the Tribunal is as under:-
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“8. We heard both the sides and perused the orders of the revenue authorities. Core issue relates to the allowability of deduction under section 80IA(4) of the Act through filing of revised return of income u/s 132(5) of the Act. The present litigation arose in view of the stipulation for validly claiming of said deduction if any only through filing of return u/s 139(1) of the Act. The said condition was provided in section 80AC of the Act. On perusal of the above submissions of Ld. AR, we find the Chennai Bench of the Tribunal decided the issue in favour of the assessee on the facts similar to that of the assessee, i.e. involving the provisions of section 139(1) of the Act. This decision relied on the logic developed by the Pune Tribunal in the case of Anand Shelters (supra). Similar liberal interpretation of section 80AC of the Act is affirmed by the Tribunal of Allahabad Bench in the case of Parmeshwar Cold Storage Pvt. Ltd. Vs. ASCIT (supra). All these decisions are pronounced on the factual matrix of filing return of income u/s 139(4) of the Act and in the absence of return filed u/s 139(1) of the Act. On examining the facts of the present case and its facts, we find the Assessee’s case, with both original and revised returns filed in time, is placed in a better position. Therefore, in our opinion the claim of the Assessee’s claim of deduction u/s 80IA of the Act is allowable despite the provisions of section 80AC of the Act due to the judgmental laws in favour of their liberal interpretation. Therefore, the ground raised by the assessee should be allowed. Accordingly, Ground No.1 raised by the assessee is allowed.”
The issue raised in the present appeal is identical to the issue before the Tribunal in the case of Sharp Designers and Engineers India Pvt. Ltd. Vs. ACIT (supra) and following the same parity of reasoning, we hold that the assessee is entitled to claim the deduction under section 80I(A) of the Act. Accordingly, the ground No.2 raised by the assessee is allowed.
In the result, appeal of the assessee is partly allowed.
Order pronounced on this 22nd day of June, 2018.
Sd/- Sd/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) न्याययक सदस्य /JUDICIAL MEMBER लेखा सदस्य / ACCOUNTANT MEMBER पुणे Pune; ददनाांक Dated : June, 2018 GCVSR
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आदेश की प्रयिलऱवऩ अग्रेवषि/Copy of the Order forwarded to : अपीऱाथी / The Appellant 1. 2. प्रत्यथी / The Respondent 3. The CIT(A)-1, Kolhapur 4. The CIT-1, Kolhapur 5. धिभागीय प्रधिधिधि, आयकर अपीलीय अधिकरण, “SMC” Pune; 6. गार्ड फाईऱ / Guard file.
आदेशानुसार/ BY ORDER,स
सत्यापपत प्रतत //True Copy// //True Copy// Senior Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune