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Income Tax Appellate Tribunal, “B” BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI & SHRI V. DURGA RAO
आदेश / O R D E R
PER CHANDRA POOJARI, ACCOUNTANT MEMBER These two appeals by different assessees are directed against different orders of Commissioner of Income Tax (Appeals)-I, Chennai, dated 12.11.2014 for the above assessment year 2010-11.
Since the issue in these two appeals is common in nature, hence these appeals are combined, heard together, and disposed of by a common order for the sake of convenience.
The grievance of the assessee’s in these appeals is with regard to disallowing the claim of deduction u/s.80IB(10) of the Act. Since the issue is common in nature in both appeals, we consider the facts as narrated in for adjudication.
In this case, the original return of income in ITR –IV for the assessment year 2010-2011 was filed electronically by the assessee
on 20.09.2010 vide E-filing acknowledgement Number
156323040200910. The return was processed u/s.143(1) by CPC,
Bangalore on 12.03.2011, whereby in the income tax computation, the deduction under Chapter VIA was computed at �1,00,000/-, though the deduction claimed by the assessee in the return of I.T.A.Nos.82 & 83/Mds/2015 :- 3 -: income was �3,84,50,966/-. The assessee preferred an application for rectification of the intimation dated 12.03.2011, but the same was rejected by the CPC Bangalore vide its order dated 26.07.2011.
Against this order of rectification, the assessee preferred appeal before the Commissioner of Income Tax (Appeals)-I, Chennai, who vide his order in dated 03.8.2012, allowed the appeal of the assessee. The Department preferred an appeal before the ITAT and the Hon’ble ITAT vide its order in IT
No.1997/Mds/2012 dated 7.2.2013 dismissed the appeal of the Revenue after it was pointed out that vide an order u/s.154 dated
16.10.2012, the Commissioner of Income Tax (Appeals)-I, Chennai rectified his order dated 3.8.2012 and dismissed the appeal filed by the assessee. An order u/s.143(3), dated 28.03.2013 was passed by ACIT, Central Circle 1(5), Chennai whereby the claim of deduction u/s.80IB was once again disallowed. The assessee preferred appeal before the Commissioner of Income Tax (Appeals), Central-I,
Chennai who vide order dated 12.11.2014 in has dismissed the appeal of the assessee. Against this, the assessee is in appeal before us.
The ld. Authorised Representative submitted that for the AY 2010-11, the Assessee's turnover in respect of 80 IB Project is Rs.7,08,79,942/-. Statutory Audit Report in Form 3CB & 3CD were I.T.A.Nos.82 & 83/Mds/2015 :- 4 -: obtained from Auditor Thiru. V.Kalyanakrishnan, Partner, M/s Suchitra & Co, Membership No. 24338, vide report dated 20.9.2010. The last date for filing of return for the AY is 30.09.2010, in view of the statutory audit conducted u/s 44AB. Accordingly, Return of Income for AY 2010-11 was electronically filed on 20.09.2010 vide Acknowledgement No. 156323040200910. The ld. Departmental Representative pointed out that the Return of Income was filed belatedly on 20.09.2010 instead of 04.08.2010, since ours is 44AB case and last date is 30.09.2010. The Assessee is an individual and the turnover of Assessee in 80 IB itself is �5,41,12,425/- 44AB, Form 3CB & 3CD dated 20.09.2010 filed. Therefore, the last date for filing the Return of Income is 30.09.2010, the Return of income is filed on 24.09.2010, which is well within the time limit u/s 139(1). The Department counsel argued that the Assessee did not claim deduction u/s 80 IB (10) under Chapter VI A in the computation of total income.
As revealed from the copy of electronically filed E-Return in form No.ITR-4 downloaded from the Departmental website www.incometaxindiaefiling.gov. in the deduction under Chapter VIA of �3,84,50,966/- was claimed.
The ld. Departmental Representative submitted that as in evident from the copy of the downloaded version (downloaded on I.T.A.Nos.82 & 83/Mds/2015 :- 5 -:
08.10.2012) of the ‘’computation of total income and tax thereon (ITR-4)’’, the relevant columns of page 1 reads as under:- ‘Are you liable for audit u/s.44AB…………………No’ In page 16 Part-B- Computation of total income column 11 reads as under:-
Deduction under Chapter VI-A(S of Schedule VIA………) �1,00,000/- In column 16 of page 18, the E-filing acknowledgement No. is given, which tallies with the copy of the E-filed return purportedly filed by the assessee. Perusal of the downloaded version of the E- filed return shows that the purported deduction u/s.80IB of �3,83,50,966/- was never claimed by the assessee. Moreover, the assessee herself has declared in her return of income that she was not liable to get her accounts audited u/s.44AB. The copy of the return as submitted by the assessee in the paper book also does not disclose the date of audit report. As such, it can be safely concluded that the assessee was not required to get her accounts audited is under legal obligation to file her return of income within due date (or as extended by virtue of notification to that effect) as
per provisions of section 139(1) of the Income Tax Act, 1961. The extended due date for filing the return of income for individuals who are not required to get their accounts audited for the relevant assessment year was 04.08.2010. The return of income was filed I.T.A.Nos.82 & 83/Mds/2015 :- 6 -: only n 20.09.2010. In this respect, he drew our attention to the provisions of section 80AC of the Income Tax Act, 1961 as are applicable to the facts of the case.
In rejoinder, the Authorised Representative for assessee submitted that the ld. Departmental Representative produced before the bench four computer sheets which are nothing but the reproduction of column as computed by the CPC u/s.143(1) and with reference to tax calculation, the columns as computed by the Department in order u/s.154, CPC, Bengaluru. In nutshell, it is not the paper from which claim of the appeal could be ascertained. On the other hand, these are the figures shown in the assessment order. He drew our attention to the CPC order u/s.154. It is submitted that after the order u/s.143(3) that a claim under Chapter VI is evident in several places in the return of income as could be seen from the downloaded return of income.
We have heard both the parties and perused the material on record. In this case, filing of return of income as seen from the records the return in form ITR -4 reads as under:-
I.T.A.Nos.82 & 83/Mds/2015 :- 7 -:
INDIAN INCOME TAX RETURN Assessment Year ITR-4 [For indls and HUFs having income from a proprietory business or (Please see Rule 12 of the Income Tax- 2010-11 ., (Also see attached Instructions) First Name Middle Name Last Name PAN R.JA Y ALAKSHMI ACTPJ5278Q Flat 1 Door 1 Block No Name of Premises / Building Status (I-Individual ,H-HUF) /Village NEW NO.88 NAVIN'S BRINDA V AN I - Individual Road 1 Street 1 Post Office Area 1 Locality Date of birth BRlNDAVAN STREET WEST MAMBALAM (in case of individual) 21/05/1933 Town/Citv/District State Sex (Select) CHENNAI 29-TAMILNADU 600033 F-Female (Std code) Pho Email Address Employer Category (if in ne gm~navinhousing.com 44 2372 employment) OTH Designation of Assessing Officer (Ward 1 Circle) Return filed under section I(PI see instruction no 9(i)] 11 – U/S 139(1) Whether original or revised return? O-Original If revised, enter Receipt no and Date of Date filing original return (DD/MM/YYYY): (DD/MM/YYYY) en Residential Status RES - Resident N-No Whether this return is being filed by a representative assessee? lf yes, please furnish ... following information ( a Name of the representative b Address of the representative Permanent Account Number (PAN) of the representative c Are you liable to maintain accounts as per section 44AA? N-No
N Are you liable for audit under section 44AB? (Select) lf yes, furnish following information- a Name of the auditor signing the tax audit report V.KAL Y ANAKRISHNAN Membership no. of the auditor 024338 b c Name of the auditor (proprietorship/ firm) SUCHITRA & CO ... Permanent Account Number (PAN) of the proprietorship/ firm AADFS9457J d e Date of audit report. 23/09/2010 (DDIMMIYYYY) For Office Use Only For Office Use Only Receipt No Date Seal and signature of receiving official I.T.A.Nos.82 & 83/Mds/2015 :- 8 -:
It was mentioned that the assessee is not liable to maintain accounts as per Section 44AA of the Act. As seen from the above, the assessee filled column regarding applicability of provisions u/s.44AB as ‘’end’’ (No). A copy of the return said to be downloaded by the assessee does not contain date of audit report as pointed out by ld. Departmental Representative. It was stated that the assessee was not required to get her accounts audited u/s.44AB and so the assessee has not got audited accounts. Consequently, no Audit report was filed.
The assessee being an individual, who is not required to get her accounts audited is under legal obligation to file her return of income within due date by virtue of section 139(1) of the Act for the assessment year under consideration. In this case there is extended due date for filing the return of income for ‘individual’’ as the assessee is not required to get her accounts audited for the impugned assessment year and due date for filing the return of income was 04.08.2010. The assessee has filed return of income on 20.09.2010.
The assessee has been hit by provisions of section 80AC of the Act.
The provision of section 80AC reads as follows:-
‘’wherein computing the total income of an assessee of the previous year relevenat to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any decution is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC (or section 80-ID or section 80IE), no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before I.T.A.Nos.82 & 83/Mds/2015 :- 9 -: the due date specified under sub-section (1) of section 139. In the instant case, the extended due date was 04.08.2010 and the return was filed belatedly on 20.09.2010. As per provisions of section 80-AC, the assessee, in order to avail of the benefits of deduction u/s. Chapter VI-A is required, as per law, to file the return of income within the due date. This has not been done and as such, the assessee is not eligible to avail of the benefit of deduction u/s.80IB’’.
Since the assessee had filed the return of income belatedly on 20.09.2010, the assessee has not entitled for deduction u/s.80 IB of the Act. The assessee has made a plea before us, that there was an error in filling E-return of income which is too technical is to be ignored. In our opinion, this was considered by the Tribunal on the earlier occasion and the Tribunal given the findings in assessee’s own case for this assessment year in which is starring at the assessee wherein observed that reading of the print out of the e-return of the assessee clearly show that there was an attempt to mislead the Department. The assessee after working out tax dues, showed taxes paid as �1,38,84,356/- when the total even as
per assessee’s figure itself ought have been more. We find that the Tribunal in the first round of litigation in dated 07.02.2013 observed as under:-
“6. We have perused the orders of the CIT(A) and also heard the contention of the Ld. D.R. We find that the assessee while filing the e-return had claimed deduction of ₹1 lakh only under Chapter-VI A of the Act. Assessee had profit and gains of ₹8,62,93,033/-. Along with salaries and income from other sources, the gross total income of I.T.A.Nos.82 & 83/Mds/2015 :- 10 -: assessee was ₹8,98,13,395/-. Against the column for showing deduction under Chapter-VI-A, assessee gave the figure of ₹1,00,000/-. However, in the column showing the total income ₹5,13,62,429/- was shown. A reading of the print out of the e-return of the assessee clearly show that there was an attempt to mislead the Department. Assessee after working out tax dues, showed taxes paid as ₹1,38,84,356/- when the total even as per assessee’s figure itself ought have been more. In such a situation, we cannot say that application for rectification filed by the assessee for granting it deduction of ₹8,62,93,033/- under section 80-IB was unjustly rejected by the Assessing Officer. Assessee had preferred no such claim in its return at all. This seems to be the right decision taken by the Assessing Officer. On the other hand, CIT(A) had accepted the claim of assessee going into the merits when the rectification was rejected by the A.O. based on the figures given in the e-return filed by the assessee. In any case, CIT(A) on 16.10.12 realizing his mistake, rectified the earlier appellate order, dismissing the appeal filed by the assessee against the rejection of petition by the Assessing Officer. Thus, as matter stands now, there is no order of the CIT(A) dated 03.08.12 in the eyes of law. Hence appeal filled by the Revenue has become infructuous. Since the Cross Objection of the assessee is only to point out the factum of withdrawal of the earlier order by the CIT(A), it is only a clarification, thus needing no specific adjudication”.
In such a situation, we cannot say that claim for granting deduction under section 80-IB was unjustly rejected the Assessing Officer. Assessee had preferred no such claim in its return at all. This seems to be the right decision taken by the Assessing Officer. These findings of us is also supported by earlier order of the Tribunal which has reached finality. At this stage, we are not in a position to take a I.T.A.Nos.82 & 83/Mds/2015 :- 11 -: different view than earlier. Accordingly, in our opinion, the assessee cannot be granted deduction u/s.80IB of the Act. Further, we observe that if there is technical error caused while downloading e-return the assessee could have brought to the knowledge of the competent authority at relevant point of time which assessee failed to do and tried to mislead the Bench, which is nothing but to present wrong facts of the case. Accordingly, we are inclined to dismiss this appeal of the assessee.
In the case of R. Jayalakshmi, the ld. Authorised Representative The ld. Authorised Representative submitted that for the AY 2010-11, the Assessee's turnover in respect of 80 IB Project is �7,08,79,942/- Statutory Audit Report in Form 3CB & 3CD were obtained from Auditor Thiru. V.Kalyanakrishnan, Partner, M/s Suchitra & Co, Membership No. 24338, vide report dated 24.9.2010. The last date for filing of return for the AY is 30.09.2010, in view of the statutory audit conducted u/s 44AB. Accordingly, Return of Income for AY 2010-11 was electronically filed on 24.09.2010 vide Acknowledgement No. 158626800240910. The ld. Departmental Representative pointed out that the Return of Income was filed belatedly on 24.09.2010 instead of 04.08.2010, since ours is 44AB case and last date is 30.09.2010. The Assessee is an individual and the turnover of Assessee in 80 IB itself is RS.7,08,79,942/- 44AB, Form 3CB & 3CD dated 24.09.2010 filed.
I.T.A.Nos.82 & 83/Mds/2015 :- 12 -:
Therefore, the last date for filing the Return of Income is 30.09.2010, the Return of income is filed on 24.09.2010, which is well within the time limit u/s 139(1). The Department counsel argued that the Assessee did not claim deduction u/s 80 IB (10) under Chapter VI A in the computation of total income. As revealed from the copy of electronically filed E-Return in form No.ITR-4 downloaded from the Departmental website www.incometaxindiaefiling.gov.in the deduction under Chapter VIA of Rs.5,20,46,942/- was claimed.
10.1 The ld. Departmental Representative made similar submissions as in the case of Smt. P. Bhavani.
10.2 Since the facts in this case is identical to the case of R. Bhavani, this appeal is also dismissed on similar line.
In the result, both appeals of the assessee in & 83/Mds/2015 are dismissed. Order pronounced on Friday, the 1st day of May, 2015, at Chennai.