TMI Blog2009 (7) TMI 878X X X X Extracts X X X X X X X X Extracts X X X X ..... ere made before the appellate authorities, irrespective of whether it was claimed by the assessee before the Assessing Officer or not, or whether it was claimed through original return or revised return, the allowability of claim has to be adjudicated on the merits. - Since the learned Commissioner of Income-tax (Appeals) has not decided the issue on the merits, we restore the issue claim of deduction under section 80-IB before him to decide the same on the merits. - ITA NO. 1198/AHD./2009 - - - Dated:- 3-7-2009 - SHRI T.K. SHARMA, AND SHRI D.C. AGRAWAL, JJ. Represented By: Shri Tushar P. Hemani for the Appellant. Shri Rajeev Agarwal for the Respondent. ORDER Shri D.C. Agrawal, Accountant Member - This appeal is fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim on the ground that the revised return has not been filed within the time limit prescribed under section 139(5) of the Act. On the merits, the Assessing Officer disallowed the claim on the ground that operation of two new units was started after March 31, 2005 whereas section 80-IB(3)(ii) requires that cold storage plant should begin production before March 31, 2004. As the plant started operation after the terminal date, the assessee was considered to be not entitled for the deduction under section 80-IB on the merits as well. The Assessing Officer in his order also mentioned that although the return was filed late on December 27, 2006, therefore, the revised return filed by the assessee on December 15, 2008 could not be considered as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India Ltd. v. Dy. CIT [2007] 15 SOT 252 (Mum.) ; (iii) Jt. CIT v. Hero Honda Finlease Ltd. [2008] 115 TTJ 752 (Delhi) ; (iv) Asheesh Securities Ltd. v. Dy. CIT [2008] 111 ITD 108 (Delhi) ; (v) Moser Baer India Ltd. v. Jt. CIT [2007] 108 ITD 80 (Delhi) ; (vi) SNC Lavalin/Acres Inc. v. Asstt. CIT [2007] 15 SOT 1 (Delhi) ; and (vii) Kisan Discretionary Family Trust v. Asstt. CIT [2008] 113 TTJ 918 (Ahd.). 5. The ratio laid down by these authorities is that a claim can be made before the Assessing Officer before completion of the assessment and further that the decision of the hon'ble Supreme Court in Goetze (India) Ltd.'s case (supra) will not be applicable on the quasi-judicial authorities, such as, the Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through a valid return. Further the provisions of section 80AC for the sake of convenience is reproduced below : "80AC. Deduction not to be allowed unless return furnished. 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, 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." 9. This section does not require that the claim under section 80-IB should be made only through the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. Accordingly following the above decision, we hold that the claim of deduction under section 80-IB can be made by the assessee before the appellate authorities. Since grounds relating to the deduction under section 80-IB were made before the appellate authorities, irrespective of whether it was claimed by the assessee before the Assessing Officer or not, or whether it was claimed through original return or revised return, the allowability of claim has to be adjudicated on the merits. Since the learned Commissioner of Income-tax (Appeals) has not decided the issue on the merits, we restore the issue claim of deduction under section 80-IB before him to decide the same on the merits. 11. In the result, the appeal is partly allowed but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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