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2019 (5) TMI 845 - AT - Income TaxDeduction u/s 80IB(10) - claim denied solely for the reason that the deduction has not been claimed in the return - HELD THAT:- If the assessee is, otherwise, entitled to a claim of deduction but due to his ignorance or for some other reason could not claim the same in the return of income, but has raised his claim before the appellate authority, the appellate authority should have looked into the same. The assessee cannot be burdened with the taxes which he otherwise is not liable to pay under the law. Even a duty has also been cast upon the Income Tax Authorities to charge the legitimate tax from the tax payers. They are not there to punish the tax payers for their bonafide mistakes. On a comprehensive reading of the judgments and the legal position laid down thereof in the case of National Thermal Power Company Ltd [1996 (12) TMI 7 - SUPREME COURT] ,Pruthvi Brokers & Shareholders Pvt. Ltd [2012 (7) TMI 158 - BOMBAY HIGH COURT] , Goetze (India) Limited [2006 (3) TMI 75 - SUPREME COURT] and considering the fact that the assessee is eligible for claim of deduction which was otherwise eligible, which was denied solely for the reason that the deduction has not been claimed in the return, is hereby allowed. Method of calculation in determining the eligible deduction - As gone through the rationale and the method of calculation in determining the eligible deduction by the Ld. CIT(A) and find that the Ld. CIT(A) has determined the deduction based on the aggregate build up area, percentage of completion work, and the expenditure involved Accordingly out of the deduction claim of ₹ 2,25,43,724/- claimed by the assessee an amount of ₹ 21,10,455/- has been found to be taxable (as per the table below) and the remaining amount is hereby held to be eligible for deduction under section 80IB(10) Disallowance of contribution to pension fund u/s 36(1)(iv) - HELD THAT:- As brought to our notice that the ld. CIT, Shimla has accorded approval under Sub Rule (1) of Rule 2 of Part-B of the Fourth Schedule of Income Tax Act,1961 w.e.f 31/03/2008 i.e; from the date of creation of fund under section. Hence the assessee would be eligible for the deduction as the approval has been given retrospectively. Appeal of the assessee on this ground is allowed. AO is hereby directed to allow the deduction after due verification of the approval granted by the Ld. CIT, Shimla. Appeal of assessee allowed.
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