SREE KAILAI SPINNERS P LTD.,COIMBATORE vs. ITO, COIMBATORE

आदेश /O R D E R

PER N.R.S. GANESAN, JUDICIAL MEMBER:

This appeal of the assessee is directed against the order of

the Commissioner of Income Tax (Appeals) -1, Coimbatore, dated

31.03.2017 and pertains to assessment year 2013-14.

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assessee, submitted that in the original return filed by the assessee,

the assessee claimed deduction under Section 80-IA of the Income-

tax Act, 1961 (in short 'the Act') in respect of income generated from

windmill. While filing the revised return on 19.12.2013, according to

the Ld. counsel, the assessee has not claimed deduction under Section 80-IA of the Act since the income of `60,81,004/- was not

assessable during the year under consideration. According to the

Ld. counsel, the assessee’s income received from windmill to the extent of `60,81,004/- has to be assessed only in the assessment

year 2014-15, therefore, the deduction under Section 80-IA of the

Act was not claimed in the revised return. However, the Assessing Officer found that the income of `60,81,004/- generated from

operation of windmill has to be assessed in the year under

consideration. Therefore, according to the Ld. counsel, by a letter

dated 28.10.2015, the assessee requested the Assessing Officer to

give an opportunity to the assessee to file the audit report in Form

10CCB for claiming deduction under Section 80-IA of the Act. The

Assessing Officer, however, rejected the claim of the assessee on

the ground that it was not raised in the revised return of income.

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referring to the judgment of Apex Court in Goetze (India) Ltd. v. CIT

(2006) 284 ITR 323, that the Assessing Officer found that the claim

which was not made in the revised return cannot be allowed. According to the Ld. counsel, the receipt of `60,81,004/- was taken

as income for the year under consideration, therefore, the

Assessing Officer has to necessarily examine whether it is eligible

for deduction under Section 80-IA of the Act. Referring to the

judgment of Apex Court in Goetze (India) Ltd. (supra), the

Ld.counsel submitted that this Tribunal can examine the claim of the

assessee under Section 80-IA of the Act. The Ld.counsel also

placed his reliance on the judgment of Apex Court in Jute

Corporation of India v. CIT (1991) 187 ITR 688 and submitted that

the claim of the assessee has to be considered on the facts of the

case. According to the Ld. counsel, the ground raised by the

assessee was bonafide one and the same cannot be rejected. In

this case, the assessee was under the bonafide impression that the income of `60,81,004/- needs to be assessed in the assessment

year 2014-15. Since the Assessing Officer found that the income of `60,81,004/- is to be assessed during the year, the claim of the

assessee has to be examined by the Assessing Officer and the

4 I.T.A. No.1226/Mds/17

CIT(Appeals). In view of the judgment of Apex Court in Jute

Corporation of India (supra), the Ld.counsel submitted that the

Assessing Officer ought to have examined the claim of the

assessee.

Representative, submitted that even though the assessee made a

claim under Section 80-IA of the Act in the original return, such a

claim has not been made in the revised return filed under Section

139(4) of the Act. The original return filed by the assessee was

merged with the revised return, therefore, the claim of deduction

under Section 80-IA of the Act made in the original return is deemed

to be withdrawn. Hence, according to the Ld. D.R., the

CIT(Appeals) has rightly confirmed the order of the Assessing

Officer.

perused the relevant material available on record. Admittedly, the

assessee earned income from operation of windmill. The assessee

in the original return claimed deduction under Section 80-IA of the

Act. Subsequently, the assessee filed revised return. The income of `60,81,004/- generated from the operation of windmill was

bonafidely believed by the assessee that it has to be assessed in

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the assessment year 2014-15. Since the majority of income was

the income from house property for the year under consideration, the assessee has not made any claim under Section 80-IA of the Act in the revised return. When the Assessing Officer found that the receipt of `60,81,004/- has to be assessed in the year under

consideration, the assessee by a letter requested the Assessing

Officer to allow the deduction under Section 80-IA of the Act and also permit to file audit report in Form 10CCB as required by statute. The Assessing Officer by applying the judgment of Apex

Court in Goetze (India) Ltd. (supra), found that the claim made in the original return and withdrawn in the revised return cannot be allowed. This Tribunal is of the considered opinion that the

assessee was under the bonafide impression that the sum of `60,81,004/- was to be assessed in the assessment year 2014-15

and not in the assessment year 2013-14, therefore, the claim was not made in the revised return.

India (supra), the assessee can make additional claim. Moreover, when the Assessing Officer found that the amount of `60,81,004/- said to be generated from the operation of windmill to

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be assessed during the year under consideration, the claim of

deduction under Section 80-IA of the Act can be brought to the

notice of the Assessing Officer in view of judgment of Apex Court in

CIT v. Shelly Products and Another (2003) 261 ITR 367. When the

assessee is eligible for deduction under Section 80-IA of the Act,

such a claim can be brought to the notice of the Assessing Officer

or any of the income-tax authorities during the course of

assessment proceeding. When such a claim was brought to the

notice of the Assessing Officer during the course of assessment

proceeding, the Assessing Officer has to consider the same in view

of the judgment of Apex Court in Shelly Products and Another

(supra). Therefore, this Tribunal is unable to uphold the order of the

lower authority. Accordingly, orders of both the authorities below

are set aside and the claim of deduction under Section 80-IA is

remitted back to the file of the Assessing Officer. The Assessing

Officer shall examine the issue of deduction under Section 80-IA of

the Act and thereafter decide the issue afresh in accordance with

law, after giving a reasonable opportunity to the assessee.

statistical purposes.

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Order pronounced on 2nd November, 2017 at Chennai.

sd/- sd/- (संजय अरोड़ा) (एन.आर.एस. गणेशन) (Sanjay Arora) (N.R.S. Ganesan) लेखा सद�य/Accountant Member �या�यक सद�य/Judicial Member

चे�नई/Chennai, �दनांक/Dated, the 2nd November, 2017.

Kri.

आदेश क� ��त�ल�प अ�े�षत/Copy to: 1. अपीलाथ�/Appellant 2. ��यथ�/Respondent 3. आयकर आयु�त (अपील)/CIT(A)-1, Coimbatore 4. Principal CIT-1, Coimbatore 5. �वभागीय ��त�न�ध/DR 6. गाड� फाईल/GF.