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2022 (2) TMI 1356 - AT - Income TaxEligibility of deduction u/s 80-IA as made for the first time in the return filed u/s 153A - additional plea beyond the Revenue’s grounds that the assessees four returns herein deserve to be treated as ‘belated’ ones since filed beyond the “due date” prescribed u/s.139(1) Explanation 2(1)-(vii) r.w.s.153(1)(a) of the Act - HELD THAT:- We see no substance in the Revenue’s instant additional technical argument in light of the tribunal’s decision in Mahindra & Mahindra [2009 (4) TMI 207 - ITAT BOMBAY-H] that a departmental representative cannot raise an argument beyond the assessment findings. We wish to make it clear that the AO herein has nowhere treated the assessee’s four returns as belated ones. As per the assessee’s stand that it had received the AO’s corresponding Section 153A notices on 10-06-2013 which stood duly complied on 09-07-2013 as it chose to file returns wherein the time prescribed only which have been accepted through out as ‘valid ones’. No rebuttal to this clinching factual aspect has come from the departmental side. We thus decline the Revenue’s instant technical argument. Whether the assessee could raise a fresh claim of Section 80-IA deduction in a return filed u/s.153(1)(a) of the Act for the first time or not even if it had chosen not to do so in Section 139(1) regular return submitted before search ? - We wish to reiterate here that the Revenue’s case strongly relies upon Section 80-IA r.w.s.80AC of the Act inter alia stipulating that “where the assessee fails to make a claim in his return of income for any deduction, no deduction shall be allowed to him thereunder” and that “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” We find no merit in the Revenue’s instant technical argument as Section 153A nowhere draws any distinction of an “abated” or “un-abated” assessment so far as an assessee’s eligibility to raise a new deduction claim under Chapter-VI therein is concerned. We thus uphold the CIT(A)’s lower appellate findings in principle. Both the AO as well as the CIT(A) have nowhere examined the assessee’s entitlement to claim Section 80-IA deduction in the light of the alleged projects undertaken / developed in all these four assessment years on merits. Faced with this situation, we deem it appropriate to restore the instant sole issue back to the Assessing Officer for his afresh adjudication on merits in light of all legal and factual requirements enshrined in Section 80-IA of the Act. Needful shall be done within three effective opportunities of hearing. Ordered accordingly.
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