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

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.

Shri S. Sendamarai Kannan, the Ld.counsel for the 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.

The Ld.counsel for the assessee further submitted that on 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 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.

On the contrary, Shri N. Madhavan, the Ld. Departmental 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.

We have considered the rival submissions on either side and 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 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.

In view of judgment of Apex Court in Jute Corporation of 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 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.

In the result, the appeal filed by the assessee is allowed for statistical purposes.