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Income Tax Appellate Tribunal, JAIPUR BENCHES,”SMC” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 68/JPR/2023
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Mk0 ,l- lhrky{eh]U;kf;d lnL; ,o aJh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ fu/kZkj.k o"kZ@Assessment Years : 2021-22 Blueprint Infrahomes LLP cuke ADIT-CPC, Bengaluru Or J-17, Nehrau Sahkar Marg, Vs. ITO, Behind IOC Petrol Pump, Jaipur. Ward-6(1), Jaipur. LFkk;hys[kk la-@thvkbZvkj la-@PAN/GIR No.:AAQFB 7437 E vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksjls@Assesseeby :Shri Shrawan Kumar Gupta (Adv.) jktLo dh vksjls@Revenue by: Smt. Monisha Choudhary (Addl. CIT) lquokbZ dh rkjh[k@Date of Hearing :17/08/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 31 /08/2023 vkns'k@ORDER PER: DR. S. SEETHALAKSHMI, J.M. This appeal is filed by the assessee against the order of the ld. CIT(A), National Faceless Appeal Centre, Delhi [herein after referred to as “NFAC”] dated 03.01.2023 for the assessment year 2021-22.
The assessee has raised the following grounds of appeal:- “Ground1. The impugned assessment order u/s 143(1) dt. 0.09.2022 is, are bad in law, illegal, invalid, void ab-intio on facts of the case, for want of jurisdiction, and also barred by limitation and various other reasons and hence the same may kindly be quashed.
Blueprint Infrahomes LLP vs. ITO 2. Rs.2,36,890/-: The Id. CIT(A) has grossly erred in law as well 2 as on the facts of the case in confirming the disallowance/addition of Rs.2,36,890/- made by the Id. AO by denying the deduction claimed u/s 801BA on wrong interpretation and not considering the evidences and material in their perspective and sense, without giving any show cause. Hence the addition/ disallowance so made by the AO and confirmed by the Id. CIT(A) is being totally contrary to the provisions of law and facts on the record and hence same may kindly be deleted in full.
3. Ground3. The ld. AO has grossly erred in law as well as on the facts of the case in charging interest u/s 234A,234B and 234C.. The appellant totally denies it liability of charging of any such interest. The interest, so charged, being contrary to the provisions of law and facts, may kindly be deleted in full. 4.Ground4. The appellant prays your honour indulgences to add. amend or alter of or any of the grounds of the appeal on or before the date of hearing.”
Brief facts of the case are that the assessee is a LLP and engaged in the business of real estate. The assessee has filed its return of income declaring the total income of Rs. Nil on dated 25.03.2022. Thereafter the assessee has received the intimation u/s 143(1) on dated. 30.09.2022 on perusal of the same it has come to know that the income has assessed at Rs.2,36,890/-, in which deduction of Rs.2,36,892/- has been denied claimed by us u/s 80IBA. The assessee had received the information for adjustment for proposed deduction of Rs.2,36,892/- in response thereto assessee had submitted that assessee claimed deduction u/s 80IBA and there is no specific condition is given u/s 80IBA, therefore deduction
Blueprint Infrahomes LLP vs. ITO claimed in ITR is allowable. However, the same has not be considered in their true perspective by the ld. AO.
Aggrieved from order of the ld. AO the assessee has preferred the appeal before the ld. CIT(A). Apropos to the grounds so raised by the assessee, the relevant findings of the ld. CIT(A) is reproduced here in below:- “5.6. Though, this in context of different section but underlying law is well settled that a person who claims exemption or deduction must establish that it is entitled to that exemption or deduction. A provision providing for an exemption, concession, or deduction, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the Statute and the object and purpose to be achieved. If exemption is available on complying with certain conditions, the conditions must be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some requirements which are directory in nature, the non-compliance of which would not affect the essence or substance of the notification granting exemption. In view of decision of Hon'ble SC (supra), claim of deduction u/s 80IBA cannot be allowed, because appellant has filed its return of income after due date.
5.7. In view of above fact and legal position, appeal of appellant is dismissed.
6. As a result, appeal of appellant is dismissed for AY 2021-22.”
5. Feeling dissatisfied from the order of the ld. CIT(A), assessee has filed this appeal as per grounds so raised. The ld. AR of the assessee in support of the grounds so raised as also filed a detailed statement of facts and written submission for the grounds raised. The same is reproduced hereinbelow:-
Blueprint Infrahomes LLP vs. ITO “FACTS:
1.
The brief facts of the case are that the assessee is a LLP and engaged in the business of real estate. The assessee has filed its return of income declaring the total income of Rs. Nil on dt. 25.03.2022. Thereafter the assessee has received the intimation u/s 143(1) on dt. 30.09.2022 on perusal of the same it has come to know that the income has assessed at Rs.2,36,890/- , in which deduction of Rs. 2,36,892/- has been denied claimed by us u/s 80IBA. The assessee had received the information for adjustment for proposed deduction of Rs.2,36,892/- in response thereto assessee had submitted that we claimed deduction u/s 80IBA and there is no specific condition is given u/s 80IBA, therefore deduction claimed in ITR should be allowed. However the same has not be considered in their true perspective and sense. And denied the claim.
2. In first appeal assessee filed the detailed WS and legal position of law. The ld. CIT(A) has not consider the same in their true perspective and sense. He referred the provisions of law and stated that CPC is well within the power to disallow the claim of deduction u/s 80IBA of the IT act if ITR is not filled with in the time. Further in the submissions during the appellate proceedings appellant has not submitted any genuine reasons for not filling of return within due date. Appellant has only submitted that it was under impression that due date of filling of return has been extended till 31.03.2022. Hence this appeal. SUBMISSIONS:- 1. Invalid action u/s 143(1): Firstly it is submitted that the disallowance has been made u/s 143(1) and this is not an adjustment, it is the disallowance of a claim or deduction in a particular section and should not be disallowed u/s 143(1), the deduction if any is to be made only under scrutiny assessment. This is a legal and disputed issue and cannot be taken u/s 143(1). It is the settled legal position of law that u/s 143(1) only prima fasi adjustment can be done and this disallowance is not a prima fasci adjustment. Hence the deduction so denied may kindly be allowed.
2. Further the disallowance u/s 80IBA has been made on account of not filing the return in due date. As in this case the assessee has filed the ITR for this year on dt. 25.03.2022 and the due date was 15.03.2022 and there was only delay of 10 days. In this regard it is submitted that the assessee is LLP and claimed u/s 80IBA and in the section 80IBA there was no reference for filling the ITR in due date, however the same is provided u/s 80AC where it has been provided to claim the deduction under chapter VIC the return is required to be filed on or before due date provided u/s 139(1). And this year there was Covid-19 period and the due date for filling of ITR for this year was 15.03.2022, and the due date for filling the Audited accounts was 15.02.2022 and the assessee has already filed the audit report on dt.03.02.2022 and in audit report the claim of deduction of Rs.2,36,892/- u/s 80IBA has already been disclosed, which is also before due date of filling of the return. And the assessee has been advised that if the claim has been shown in the audit report, which has been filed before the due date of return filling is allowable. Further the assessee has also filed the Form 29C on 08.02.2022 which is for computing Adjustment of Blueprint Infrahomes LLP vs. ITO total income and Alternate Minimum Tax of the person other than a company. All these have been filed before 15.03.2022. Further the assessee has also under impression that the Honble Supreme Court has extended time limit in income tax and other matters up to 31.03.2022 and the assessee was also under impression that the time limit for filling the return is also 31.03.2022 and has also been advised to file till 31.03.2022, when all the forms have already been filed very before the due dates. When the assessee has given all these reasons and explanation, then how the ld. CIT(A) has alleged that assessee has not given genuine reason. And he has not stated that what genuine reason should be and what is the definition of genuine reasons. 2.1 In the case of Symbiosis Pharmaceuticals (P) Ltd. vs. DCIT IN October 4, 2017 (2017) 51 CCH 0632 ChdTrib (2017) 160 DTR 0001 (Chd)(Trib),(2017) 190 TTJ 0518 (Chd). It has been held that 6. We have heard rival submissions and perused the material available on record. A perusal of the record shows that the assessee e-filed its return on 31.03.2014 showing a total income of Rs. 2.71 Crores after claiming deduction under Chapter VI-A (u/s 80IC) of Rs. 1,16,26,310/-. The said claim was supported by audit report in form No. 10CCB under Rule 18BBB of the IT Rules, 1961. The AO considering the fact that the return had not been filed within the time specified u/s 139(1) as admittedly it had been filed within the extended period as specified u/s 139(4). Accordingly, considering the statutory requirement as per provisions of Section 80AC required the assessee to explain the same. The assessee as per the submissions extracted in the assessment order gave the following explanation :
“Income tax return alongwith statement of income was filed on 31.03.2014 audit report through which we can avail the 80IC deduction is submitted on 28.10.2013. Book profit report in form 29B is submitted on 29.09.2013 and Tax Audit Report in form 3CA/3CD is submitted on 29.09.2013. Moreover, end of the year i.e. March 31 of the relevant A.Y. is also due date u/s 139 without penalty and ITR submitted on 31.03.2014”
6.1 The record shows that the explanation was rejected by the AO holding as under : The explanation of the assessee is perused and it shows that the assessee itself admitted that the return of income for the year under consideration was filed beyond due date of filing of return. Moreover, audit report in form no. 10CCB was also filed on 28.10.2013 which is also belated. The assessee claimed that tax audit report in form 3CA & 3CD was filed on 29.09.2013 i.e. with in time. The contention of the assessee is not acceptable because the date of filing of audit report is no concerned with the date of filing of return of income. The provision of section 80AC clearly indicates that the return of income of the assessee who claims deduction u/s 80IC must be furnished on or before due date in the relevant assessment year. The assessee could not justify its claim, hence, deduction
Blueprint Infrahomes LLP vs. ITO u/s 80IC of Rs.1,16,26,310/- is disallowed and added to the total income of the assessee's company.
6.2. The assessee carried the issue in appeal before the CIT(A) who also rejected the claim relying upon the decision of the Apex Court in the case of Prakash Nath Khanna. The applicability of the said decision to the facts of the present case is disputed by the ld. AR on the grounds that as per the settled legal position, the Rule of strict interpretation is to be applied to the charging and penal provisions. It has been argued that since Section 80AC and Section 80IC are procedural provisions, the rule of strict and literal interpretation are not to be applied. Attention has been invited to para 20 of the aforesaid decision of the Apex Court. The ld. AR has also sought to distinguish the decisions relied upon by the CIT(A). Since these arguments have been elaborated in the earlier part of this order, it is deemed appropriate only to refer to the rebuttal thereof by the ld. CIT-DR. The ld. CIT-DR has placed heavy reliance upon the order of the Chandigarh Bench of the ITAT in the case of Lakshmi Energy & Foods Ltd. The ld. AR apart from relying upon various decisions which have also been elaborated in the earlier part of this order, has sought to invite attention to the order dated 23.02.2017 in the case of Heera Moti Agro Industries (copy placed at pages 108 to 126). Before we refer to those decisions, we take note of the fact that admittedly the Tax Audit Report and the Balance Sheet alongwith annexures were filed within the due date i.e. 29.09.2013 and the report u/s 80IC on form 10CCB was filed on 28.09.2013. These facts are coming from the record itself as extracted in the earlier part of the order from the assessment order. The return admittedly was uploaded only on 31.03.2014 and admittedly was late in terms of Section 139(1), though within the extended time as set out in Section 139(4) as far as the levy of penalty etc. was concerned. Section 80AC of the Income Tax Act specifically lays down that deduction is admissible or in-fact no deduction is permissible unless the return is furnished on or before the due date specified in sub-section (1) of Section 139. For ready reference, said provision of law is hereby reproduced :
”80AC -Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC [or section 80-ID or section 80-IE], no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139. ”
6.3 We are called upon to decide in the facts of the present case whether the benefit of deduction u/s 80IC in the facts of the present case wherein the assessee admittedly did not file its return within the due date specified under sub-section (1) of Section 139 of the Act and filed it only in the extended period and though within time but in the extended period as set out in sub section (4) of Section 139 of the Act. The consistent claim of the assessee which has not been disputed
Blueprint Infrahomes LLP vs. ITO by the tax authorities or by the ld. CIT-DR is that the return of the assessee was filed well within the extended due date u/s 139(4) i.e. on 29.09.2013.
6.4 We have considered the relevant findings in the assessment order and the impugned order and we find that the relevant documents in support of its claim of deduction were available before the tax authorities well within time namely Book Audit Report in Form No. 29B and Tax Audit Report in Form No. 3CA/3D on 29.09.2013, Audit Report u/s 80IC along with Balance Sheet etc. Consequently, the occasion to consider the possibility and the opportunity to interpolate and fudge up the claim was admittedly not available to the assessee. We note that the respective corresponding figures qua the claim as per the Reports and Balance Sheets remain the same. The legal position referring to various case laws have been addressed by the authorities which we have elaborately discussed in the earlier part of this order. On consideration thereof, we find that the claim of the assessee that in the peculiar facts and circumstances of the present case where the filing of the return was delayed for reasons not attributable to the assessee and all other supporting evidences in the form of audit report u/s 80IC, balance sheet prepared for the purpose of income tax and the requirements of various regulatory authorities were prepared and filed well within time whereas we have noted the figures and amounts in these two fully tally in the light of these facts when considered in context of the principles enunciated by the Courts and the Tribunal, we concur with the arguments that literal interpretation is to be given to the procedural requirements in as much as these provisions being machinery provisions and thus being directory, they do not stand as a bar in the facts of a case wherein it can be demonstrated that there was a justifiable and reasonable cause for delay in filing of the return. The return which is well within the extended period as considered under sub section 4 of Section 139 of the Act, it was submitted, stands on a higher footing, then the return which is filed even beyond this period. The arguments of the Revenue that return filed late can only be considered if the delay is attributable to the Revenue, cannot be concurred with. In the face of decisions which hold that the said provision is a machinery provision, then this interpretation cannot apply only to cases where delay is attributable only to the Revenue. The said interpretation would be universally available as per facts to both the sides. To hold that the cause for delay can be gone into, only if delay is attributable to the Revenue in the facts of the case would necessitate a judicial forum to first require the Department to demonstrate how it can claim itself to be on higher footing qua the tax payer because reasons for delay can be gone into and condoned for adequate reasons demonstrated by the Revenue then even where delay occurs for reasons not attributable to the Revenue also. In the absence of any other argument, we do not see how in the facts as considered by different Courts in the decisions relied upon by the ld. AR, why they should not be applied. Once it has been held that Section 80AC is a machinery provision, then the issue is to be considered in the light of the facts available. The legal position that the relevant provision is a machinery provision, applying the principles that being directory in nature enables the authorities to consider the reasons, consistently on record for late filing of the return. A perusal of the record shows that the affidavit of Shri Jagbir Singh S/o Shri Om Pal, Managing Director of the assessee
Blueprint Infrahomes LLP vs. ITO company is on record. Perusal of the same shows that it has been explained that on account of collusion of the tax consultant i.e. Chartered Accountant Shri A.S.Malhotra in regard to allotment of shares in another company i.e. Saitec Medical Pvt. Ltd. wherein the assessee company had a major share holding resulting in filing of suite before the Company Law Board etc. and in connivance of the Tax Consultant with Mr. Bhalotia and his son who were having minor shareholding in M/s Saitech, the routine exercise normally done by the Tax Consultant without any follow up or supervision as digital signatures had been entrusted to the tax consultant for uploading of documents etc. in the Income Tax Portal, the mischief was occurred. For ready reference, the contents of the affidavit on record are reproduced hereunder :
AFFIDAVIT I, Jagbir Singh s/o Sh. Om Pal, Managing Director of Symbiosis Pharmaceuticals (P) Ltd., having its Regd. office at SCO 4, Ground Floor, 14, Raghunath Puri, Yamuna Nagar, do hereby solemnly affirm and declare as under:
1. 1. That I am Managing Director of the Company Symbiosis Pharmaceuticals (P) Ltd., Yamuna Nagar.
2. That, the Balance Sheet along with annexures of Symbiosis Pharamaceuticals P Ltd for the year ending 31.3.2013 was signed by the authorized directors and Auditors on 09.08.2013 and the said balance sheet was adopted by the Board of the company. On this very date i.e. 09.08.2013 we handed over the Digital Signatures of the Deponent to our auditor and Tax.Consultant CA A.S. Malhotra for filing Income Tax return and other reports on the Income Tax portal as returns and all audit reports had to be compulsorily e-filed. We came to know about the fact that Tax Audit report and Balance Sheet with annexures were filed on 29-9-2013 and report u/s 80-IC on Form 10CCB was filed on 28.10.2013 and the return of Income was uploaded only on 31.03.2014.
3. That filing of Income Tax return, audit report etc on Income Tax portal as a matter of routine is handled by Tax Consultant and in our case CA. A.S.Malhotra and as a normal practice digital signatures were also handed over to him alongwith Board Resolution authorizing him to use and affix our Digital Signatures on the documents to be submitted to Income Tax Department.
4. That our aforementioned Company is having 77.30% shares in another Company "Saitech Medicare Private Limited". CA. A.S. Malhotra was Auditor of that Company also. Besides Symbiosis Pharmaceuticals (P) Ltd. and a few other shareholders, this Company is also having two shareholders namely Sh. Rajat Bhalotia and his father Sh. P.D. Bhalotia with 12.66% and 3.82% shares respectively. These shareholders have filed a suit with Company Law Board, Delhi against the major shareholder i.e. Symbiosis Pharmaceuticals (P) Ltd. and other shareholders including the Deponent.
Blueprint Infrahomes LLP vs. ITO We suspected collusion of our Auditors with these two dissenting shareholders as our Auditor was also Auditor and tax consultant of Wonder Products, Nahan Road, Moginand, Kal Amb, Distt. Nahan; a firm of these two persons/ their family members. The suspicion is on account of the fact that return of Income for the year under consideration was filed late when balance sheet and audit report was filed in time and also he has guided the other directors for filing a suit against the company.
That when we received the order of the DCIT in our case for the A.Y. 2013-14 on 16.01.2016; we consulted another CA who told us the intricacies of the order and thereafter we confronted the same with our Tax Consultant CA. A.S. Malhotra; who did not give any satisfactory reply for delay in filing of Income Tax return and we asked for his resignation and changed our consultants as well as Auditors of both the Companies. 'His replies confirmed our suspicions that he is in hand with glove with Mr. Bhalotia and the mischief i.e. non filing of ITR in time was carried on us at the behest of Mr. Bhalotia.
6. That we would also like to add that Bhalotias had filed the case only in July 2015 after we issued Seventy six lakh shares of "Saitech Medicare Private Limited" to Symbiosis Pharmaceuticals (P) Ltd. He was showing his grievances against the allotment since last more than one year before the allotment on some technical grounds which only a professional like a Chartered Accountant is in position to guide. Due to the case filed with Company Law Board; which case has since been transferred to National Company Law Tribunal, Chandigarh Bench in February, 2017; we had not been able to hold AGM of "Saitech Medicare Private Limited" since 2015. Whenever we tried to hold AGM; Mr. Bhalotia invoked CLB which restrained us from holding AGM and ultimately we had to give an undertaking to the CLB of not holding any AGM without its permission.
That we are not conversant with the Income Tax Act, 1961 hence we had to rely on our consultants. As is a normal practice; Income Tax Consultant prepares and file ITRs on behalf of the assessee. We were also following the instructions of our Tax Consultant and late filing of ITR was not due to any fault of any of the officer of the Company but due to our Tax Consultant.
6.5 Accordingly, in the peculiar facts and circumstances of the case, as we have discussed at length and seen from the record, we are of the view that the delay in filing of the return in the facts of the present case was for reasons beyond the control of the assessee and in fact, there was reasonable cause in the late filing of the return within the extended period as statutorily available under sub-section (4) of Section 139 of the Act. The decision rendered in the case of P.Bhavani, we find, on facts is not applicable and is entirely distinguishable since we concur with the arguments advanced by the ld. AR thereon same are not being repeated here. Similarly, we find that the decision in the case of M/s Lakshmi Energy & Foods Ltd. also has no role to place as in the facts of that case, not only the return was filed beyond the extended period of time statutorily
Blueprint Infrahomes LLP vs. ITO available under sub-section (4) of Section 139 but even otherwise, the said return was not supported by Tax Audit Report and Audit Report u/s 80IC prior to the filing of the return and infact they were filed during the assessment proceedings.
6.6 In the facts of the present case, as is evident from the assessment order itself, the supporting documents for the claim u/s 80IC was filed well within the extended time prescribed u/s 139(4). The said fact is evident from a reading of the assessment order itself. We also note that the principle of law as applicable to claim of exemption u/s 54 as considered by the Hon'ble jurisdictional High Court in the case of CIT V Jagriti Aggarwal is fully applicable to the case at hand also and infact the decision of the Delhi Bench of the ITAT in the case of Hansa Dalakoti and Fiberfill Engineers (cited supra) relying upon the decision of the Apex Court in the case of Bajaj Tempo Ltd. (cited supra) and decision of the Hon'ble Delhi High Court in the case of Poddar Pigments Ltd. ( cited supra) fully supports the claim of the assessee. Mention may also be made of the order of the Hyderabad Bench of the Tribunal in the case of S.Venktiah, (cited supra) and another order of the Delhi Bench in the case of Dheer Global Industries P.Ltd. (cited supra) also support the view taken. Support may also be drawn by making reference to the order of the Chandigarh Bench of the Tribunal in the case of Rajwinder Kaur Mahal (stated supra) wherein considering the claim of deduction u/s 54 after considering the decision of the Apex Court in the case of Prakash Nath Khanna and also considering the decision of the jurisdictional High Court in the case of Jagriti Aggarwal, the claim made in the extended period available under sub-section (4) of Section 139 was allowed. The order in the case of Heera Moti Agro Industries (cited supra) also deserves a mention.
6.7. Accordingly, considering the peculiar facts and circumstances of the case and position of law as canvassed by the parties before the Bench, we hold that the claim of the assessee could not be ousted on the fact that the return was filed within the extended period of sub section(4) of Section 139. Accordingly, we hold that the assessee deserves to succeed in principle. The matter is remanded to the AO for the purposes of verification. Needless to say that the assessee shall be given a reasonable opportunity of being heard 2.3 In the case of Gemini Communication Ltd. vs. ACIT inITA No. 1252/Mds/2012 August 28, 2012 (2012) 33 CCH 0295 ChenTrib (2012) 19 ITR 0001 Deductions—Claim made before due date—Electronic filing of return after due date—Allowability—Assessee filed manual return before the due date prescribed u/s. 139(1) however, electronic return was filed after due date— CIT(A) upheld order of AO holding that since electronically filed return was not filed within time therefore, deduction claimed by assessee u/s. 80IC has been disallowed by taking recourse to s. 80AC of the Act—Held, s. 80AC provides that where assessee has claimed deduction u/s. 80IC such deduction shall not be allowed unless assessee furnishes a return on or before the due date specified u/s. 139(1) of the Act—Filing of return electronically is a directory provision and if the Blueprint Infrahomes LLP vs. ITO return is filed manually on or before due date, such return cannot be ignored—AO at best could ask assessee to file electronic return again, so that the technicality of processing is satisfied— Claim of assessee for deduction u/s. 80IC cannot be denied on the ground of law stated in s. 80AC of the Act.
Looking the facts of the present case there is also a sufficient reasons and beyond control to the assessee.
3. As there was ignorance of law to the assessee and there was also misconception of the limitation due to Covid-19 in the mind of assessee 3.1 In the case of CIT V/s B.G. Shrik Construction Technology (P) Ltd(Bom.) 395 ITR 371: Claim for deduction not made in the return, Tribunal was justified in holding that the assessee was entitled to make a claim which was not made in the return of income originally filed u/s 153A r/w s143(3) before the ld.AO and also before the appellate authorities . 3.2 In the case of Pr. CIT v/s Ankit Metal & Power Ltd 182 DTR 333(Cal ) 09.07.2019 that Tribunal has the power to entertain the claim of deduction not claimed before the AO by filing the revised return and tribunal in exercising of its power u/s 254 justified in accepting this claim though no revised return u/s 139(5) was fled before the AO also refer CIT v/s Britania Industries Ltd 396 ITR 677(Cal.) 3.3 In the case of Suresh Kumar Agarwal vs. Joint Director Of Income Tax IN & 1074/JP/2018 Mar 15, 2022 (2022) 64 CCH 0234 Jaipur Trib It has been held that Penalty— Penalty for failure to answer question, sign statement, furnish information, returns or statements, allow inspection etc.—Assessee is an individual and having business of Building construction and dealing real estate and after construction completed sold flats as per market price— Assessing Officer initiated penalty proceedings 272A (1)(c)—CIT upheld penalty—Held, there is no finding of AO based on some contradictory evidence to disapprove that explanation offered by assessee was false or assessee was not able to substantiate explanation furnished or fails to prove that such explanation is not bona fide and that all facts relating to same and material to computation of his total income has not been disclosed by him—Ignorance of law is certainly no excuse for a default committed but, at same time, there is no presumption in law that everybody knows law—Application of this rule would differ from case to case and person to person—In a given case, there may be a person who is quite illiterate, living in remote village, rarely coming in touch with law enforcing machinery and not required to discharge any statutory obligations under a particular law—Ignorance of law may be a good excuse in his case—There is no willful failure to comply with summons u/s 131(IA—Therefore order on CIT (A) is accordingly set aside and thus penalty u/s 272A(1)(c) levied by AO is not in accordance with law therefore same is cancelled—Assessee’s appeal of allowed.
Blueprint Infrahomes LLP vs. ITO 4.The case law relied upon by the ld. CIT(A) without confronting to the assessee is not applicable in the present case on the following grounds:
M/s Wipro Ltd Assessee 1. Under Scrutiny Not under Scrutiny 2. Claimed Exemption u/s 10B Claimed deduction u/s 80IBA
3. As per Honble S.C. For claiming However as per view of the Honble S.C. the exemption u/s 10B return is to be deduction u/s 80 cannot be denied after filling filled before due date the return due date
4. In this case the claim was made in the No revised return revised return
5. The claim in the original return and in The claim was in the Original return and no revised return were different. new claim was made.
6. In this case declaration form was No declaration form was to be required to file, required to be filed before the due date of return filling. And the same was filed in the revised return after 14 Months.
7. In Original Return claim of Exemption Not in this case. u/s 10B and in the revised claim of carry forward losses
8. Form filed after filling the original In this case all the form as Audit report, Form return 29C very before the due date of filling of return.
9. In this case no compelling In this case the Covid-19 period till circumstances and genuine reason. 31.03.2022 and misimpression of limitation. Rather intentionally revised the return. Neither No melafide intention nor any allegation of the lower authorities.
The ld. CIT(A) himself admitted that this is context of different section. Hence this case is not at all applicable in the present case and distinguishable looking to facts of the assessee’s case and on the above grounds.
5. However further there is no loss to revenue because the assessee had already paid AMT which of 20% and there was no melafide intention of the assessee to delay in filling the return only for 10 days nor assessee has benefited due it, if the assessee was knowing the facts of disallowance of deduction due to delay in filling the return, he could not have filed the return with minor delay of 10 days.
Blueprint Infrahomes LLP vs. ITO 6. Further as we have already stated that when the Honble Supreme Court had extend time limit in many case till 31.03.2022 then it should also be considered here and a genuine claim should not be denied only due to some technical reason and minor delay and due to ignorance of limitation. 7. Therefore in view of the above facts and circumstances the disallowance so made may kindly be deleted in full and oblige.”
The ld. AR for the assessee also filed an affidavit in support of reason of ITR filing by delay of 10 days which reads as under:- “I, Jayesh Kumar S/o Sh. Raj Narain Bansal, aged 50 years, R/o 160, Nemi Nagar, Gandhi Path, Vaishali nagar, Jaipur-302001 (Raj.) do hereby solemny affirm on oath as under:
1. 1. That I am partner in the firm M/s Blueprint Infrahomes LLP and fully conversant with its affair.
2. That for A.Y. 2021-22 we have filed our Audit Report (Form 3 CB-3CD on dt. 03.02.2022 and Form 29C was filed on 08.02.2022 within the time limit provided in the Act.
3. That we have filed our Income Tax Return on 25.03.2022.
4. That we have come to know that the due date was 15.03.2022, thus the delay was only 10 days.
5. That the reason for filing the ITR by the delay of only 10 days was that in this year there was covid-19 period and the due date for filing of ITR for this year was 15.03.2022 and the due date for filing the Audited accounts was 15.02.2022.
6. That we have already filed the audit report on dt.03.02.2022 before the due date 15.02.2022 and in audit report the claim of deduction of Rs.2.36.892/- u/s 801BA has already been disclosed, which is also before due date of filling of the return. And we have been heard or advised that if the claim has been shown in the audit report, which has been filed before the due date of return filling is allowable.
7. That we have also filed the Form 29C on 08.02.2022 which is for computing Adjustment of total income and Alternate Minimum Tax of the person other than a company. All these have been filed before 15.03.2022. And we were also under impression that the Honble Supreme Court has extended time limit in income tax and other matters up to 31.03.2022 and the assessee was also under Blueprint Infrahomes LLP vs. ITO impression that the time limit for filling the return is also 31.03.2022 and has also been advised to file till 31.03.2022, when all the forms have already been filed very before the due dates. Otherwise we could not have delayed in filling the ITR.
8. That there was no any melafide intention of our to file the return with the Minor delay and there was no revenue loss.
That the contents or averment of Written Submissions are true and correct and may be treated as part of this affidavit.”
7. Per contra, the ld. DR supported the orders of the lower authorities.
We have heard the rival contention and perused the material available on record. The Bench noted that the assessee has filed an affidavit duly signed by the partner of the LLP stating that the reasons for filing the ITR by the delay of 10 days was on account of Covid-19 period and the due date for filing of ITR for this year was on 15.03.2022 and the due date for filing the audited account was on 15.02.2022. The Bench also noted that the assessee has filed audit report on 03.02.2022 i.e. before the due date 15.02.2022. The assessee contended before us that they have filed the relevant details along with details of claim in Form No. 29C for deduction u/s 80IBA of the Act. The assessee prayed before us that let this facts be verified by the Assessing Officer in terms various extension granted by the Hon’ble Apex Court and 90 days’ time was permitted by the Hon’ble Apex Court . In light of this prayer made by the assessee we restore back the issue for checking the allowability of the contention so raised before us and the Assessing Officer is Blueprint Infrahomes LLP vs. ITO directed to verify the contention made before us for allowability of claim of deduction u/s 80IBA of the Act. Considering these facts and circumstances of the case the matter to restore to the filed by the Assessing Officer and accordingly, the appeal of the assessee is allowed for statistical purposes. Since we have restored back other ground become adjudicating in nature in term of these observation. In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 31/08/2023.
Sd/- Sd/- ¼jkBksM deys'k t;UrHkkbZ ½ ¼MkWa-,l-lhrky{eh½ (RATHOD KAMLESH JAYANTBHAI) (Dr. S. Seethalakshmi) ys[kk lnL; @Accountant Member U;kf;dlnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 31/08/2023 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- Blueprint Infrahomes LLP, jaipur. 1. 2. izR;FkhZ@ The Respondent- ITO, Ward-6(1),Jaipur. 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File By order,
सहायक पंजीकार@Aेेजज. त्महपेजतंत