9911796707
TMI Blog2012 (7) TMI 485X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 139(1), which is not a prerequisite for sec. 139(5), is erroneous in law, contrary to the facts, probabilities of the case and against the principles of equity and natural justice. ii. The CIT (A) relying on the irrelevant case law, also alleging that there is an amendment to section 139(4) w.e.f. 1-4-2006 ignoring the fact that the return filed u/s 139(5) i.e., revised return within due date claiming relief u/s 10A which was wrongly claimed u/s 10B in the return filed u/s 139(1), which is totally unjustified and unwarranted both in law and facts. iii. Subject to the above, the appellant submits that for other issues, relied by the AO, furnished substantial material documentary evidence in support, that no relationship whatsoever n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction u/s 10A to be claimed in the return filed u/s 139(1), the assessee having not claimed the deduction u/s 10A in the return filed u/s 139(1) of the IT Act the claim made in the revised return cannot be accepted. The AO had further observed that the assessee company has received technical know from its associated enterprise without any payment resulting in high exempted income, the assessee has failed to make the transaction at arms length price, the assessee failed to prove any services exported or rendered, the assessee has shown abnormally high profit. 4. Being aggrieved by the assessment order, the assessee filed an appeal before the CIT (A). Before the CIT (A), the assessee reiterated its stand taken before the AO and contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CIT vs. Rajesh Kumar Jalan (286 ITR 274) or that of the Hon'ble High Court in the case of CIT vs. Jagruti Agarwal (203 Taxman 203), it has been held that for the purpose of sec. 54, the due date for finishing of return of income u/s 139 automatically gets extended by the period prescribed u/s 139(4), it is clear that the said view has been taken only in respect of sec. 54. On the other hand, it is seen that the Honble Amritsar Bench of ITAT in the case of Bal Kishan Dhawan, HUF vs. ITO (2011 TMI 211498- ITAT-Amritsar) in ITA No.235-236 (ASWR) of 2011 dtd. 16-12-2011, making such distinction, have held that having not claimed deduction u/s 80IB in the return filed u/s 139(1) in view of the provisions of sec. 80 IB in the return filed u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng given by the CIT (A) in para 6.1 of his order justified the disallowance of claim made by the assessee in the revised return. 7. We have heard rival contentions of the parties and perused the materials available on record. It is apparent from the order of the CIT (A) that the reason behind disallowance of claim made by the assessee since the assessee has not claimed deduction u/s 10A in the return filed u/s 139(1), the proviso to section 10A debars him from making any such claim in revised return. At this stage, it will be relevant to take note of the proviso under section 10A which is extracted hereunder:- "Provided that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gly, the order of the assessing officer could be interfered with by the CIT u/s 263 of the Act. However, the CIT should have remanded the matter to the file of the assessing officer with a direction to consider the claim of the assessee that there was no difference between s. 10A and S.10B and the deduction u/s 10A was allowable to the assessee on the basis of the material available on record. In these facts of t he case we hold that it be justified to modify the order of the CIT passed u/s 263 to the effect that the assessment is set aside to the file of the assessing officer with a direction to reframe the assessment de novo in accordance with t law and to adjudicate the issue of deduction allowable to the assessee, after providing reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the considered opinion that it shall be in the interest of justice to set aside the issue in the grounds of appeal of the assessee to the file of assessing officer with a direction to decide the issue in accordance with law after providing reasonable opportunity to the assessee, and also to give a specific finding whether the assessee is entitled to deduction u/s 10A of the Act or not. The assessee may file any evidence in support of its claim for deduction before the assessing officer. We make it clear that our observations herein above shall not have any bearing on the decision of the assessing officer with regard to the merits of the claim of the assessee for deduction u/s 10A of the Act. We direct accordingly." Therefore, keeping in vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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