Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2021 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 419 - AT - Income TaxDeduction u/s 80P(2)(a)(i) - assessee did not claim deduction u/s 80IB(10) - violation of section 80A(5) - HELD THAT:- It is very much clear that even though the assessee might be fulfilling the conditions of the particular deduction provision; however, the mandatory conditions of section 80A(5) of the Act has to be fulfilled for claiming deduction. While laying down the aforesaid ratio, the Hon’ble jurisdictional High Court took note of the ratio laid down in case of Goetze India Ltd vs CIT [2006 (3) TMI 75 - SUPREME COURT] - Thus, the ratio laid down in the aforesaid decision of the Hon’ble jurisdictional High Court EBR ENTERPRISES & ANR. VERSUS UNION OF INDIA AND ANR. [2019 (6) TMI 484 - BOMBAY HIGH COURT] squarely apply to the facts of the present appeal. It may be a fact that the assessee is otherwise eligible to claim deduction under section 80P(2)(a)(i) of the Act; however, the provision contained in section 80A(5) of the Act stands as a bar in allowing such deduction to the assessee. For the sake of completeness, we must observe, having carefully gone through the decisions cited by learned authorized representative of the assessee, we are of the view that in none of these decisions, the provision contained in section 80A(5) of the Act was taken note of. In case of ITO vs MSEB Employees Co-operative Credit Society Ltd [2014 (12) TMI 380 - ITAT PUNE] as held that even if the assessee has not claimed a deduction in the return of income, the appellate authorities have power to allow deduction which is allowable under the provisions of the Act - it appears form a reading of the said decision, provision contained in section 80A(5) was not brought to the notice of the Tribunal - Tribunal did not have the benefit of the decision of the Hon’ble jurisdictional High Court in case of EBR Enterprises vs UOI [2019 (6) TMI 484 - BOMBAY HIGH COURT] which was subsequently rendered. Tribunal has allowed assessee’s claim of deduction under section 80P(2)(a)(i) of the Act in assessment years 2010-11 and 2012-13. However, there is nothing on record to suggest that there was any violation of section 80A(5) of the Act. Therefore, the factual position based on which the decisions were rendered in assessment year 2010-11 and 2012-13 are different from the impugned assessment year - we hold that the assessee cannot be allowed deduction under section 80P(2)(a)(i) of the Act, insofar as, the impugned assessment year is concerned due to non fulfillment of conditions contained in section 80A(5) of the Act. Status of assessee - AOP or firm - assessee filed an application for rectification under section 154 of the Act seeking change of status from firm to AOP and to allow deduction under section 80P(2)(a)(i) - HELD THAT:- As regards the correction of status of the assessee from firm to AOP, the assessing officer is directed to rectify the same after verifying all relevant facts.
|