TMI Blog2014 (1) TMI 1226X X X X Extracts X X X X X X X X Extracts X X X X ..... t on this count cannot be disallowed – the order of the CIT(A) reversed – Decided in favour of Assessee. Withdrawal of deduction granted u/s 10A as per section 154 of the Act - Whether the deduction granted to the assessee u/s. 10A can be be withdrawn u/s. 154 on the reason that the assessee filed return of income belatedly – Held that:- Relying upon ACIT vs. Dhir Global Industries (P) Ltd [2010 (7) TMI 619 - ITAT, DELHI] – An issue when it is debatable, it cannot be dealt with by the proceedings u/s. 154 of the Act - The AO in his order u/s. 154 of the Act is very much debatable and a debatable issue cannot be considered in the proceedings u/s. 154 of the Act – thus, the CIT(A) is justified in annulling the order u/s. 154 of the Act – Decided against Revenue. - ITA No. 1379/Hyd/2012, ITA No. 1380/Hyd/2012, ITA No. 340/Hyd/2013 - - - Dated:- 22-1-2014 - Shri Chandra Poojari And Smt. Asha Vijayaraghavan,JJ. For the Petitioner : Sri D. Sudhakar Rao For the Respondent : Sri P. Murali Mohan Rao ORDER Per Chandra Poojari, AM: All the above three appeals by the Revenue are directed against different orders of CIT(A) III, Hyderabad dated 29th June, 2012 for A.Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Now, we take up the assessee's appeal in ITA No. 340/ Hyd/2013 for A.Y. 2009 10. 9. The first issue in this appeal is that the CIT(A) had erred in granting deduction u/s. 10A of the Act at Rs. 15,25,10,970 as against assessee's claim of Rs. 24,01,97,731 u/s. 10A of the Act. 10. We have carefully gone through the order of the CIT(A). The CIT(A) directed the AO to verify the FIRCs and allowed deduction accordingly. It does not mean that the CIT(A) limited the deduction to the expenditure of Rs. 15,25,10,970 as against the claim of the assessee at Rs. 24,01,97,731 u/s. 10A of the Act. Being so, this ground raised by the assessee does not have any merit and the same is dismissed. 11. The next issue is with regard to disallowance of vehicle maintenance and general expenses at Rs. 11,73,590. Facts of the issue are that it was observed by the AO that many vouchers in respect of these expenses are self made and without complete evidence thereof. The AO disallowed 10% of these expenses and the CIT(A) has confirmed the same. 12. We have heard both the parties and perused the material on record. The has assessee is a public limited company whose accounts are audited by statutory audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO cannot withdraw the deduction granted to the assessee u/s. 10A of the Act by way of proceedings u/s. 154 of the Act which was duly allowed while completing the assessment u/s. 143(3) of the Act as the issue itself is very much debatable. 19. The learned DR submitted that the issue is not debatable and there is a mistake apparent on record which should be rectified u/s. 154 of the Act. 20. On the other hand, the learned AR submitted that the issue is very much debatable and there are various judgements in favour of the assessee on this issue, particularly, he drew our attention to the following judgements: (a) M/s. Rithwik Projects Pvt. Ltd. vs. DCIT, ITA No. 1206/Hyd/ 2012. The Tribunal vide order dated 7.12.2012 held as follows: "12. As seen from the above orders of the Tribunal it is a debatable issue. An issue when it is debatable, it cannot be dealt with by the proceedings u/s. 154 of the Act. Being so, in our opinion, the Assessing Officer is precluded from taking the issue in the proceedings u/s. 154 of the Act. Accordingly, the order of the AO is annulled." (b) ITO vs. Sri S. Venkataiah in ITA No. 984/Hyd/2011. The Tribunal vide order dated 31.5.2012 held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the Assessing Officer was justified in disallowing the assessee's claim for deduction under S. 80IB on the ground that the audit report in Form 10CCB was not filed along with the return of income; or whether the CIT(A) was correct in proceeding on the basis of Form 10CCB filed during the course of re assessment proceedings and directing the Assessing Officer to allow the claim of the assessee for deduction under S. 80IB of the Act. It is settled position of law, as consistently held by various Benches of this Tribunal and as held in various decisions referred to by the CIT(A) in the impugned order, that though filing of audit report in Form 10CCB is mandatory and pre requisite for deduction under S. 80IB, non filing of the same along with the return of income is only a curable defect, and assessee's claim for deduction has to be considered on its merits as and when the defect is cured by filing Form 10CCB. We are fortified in this behalf by the decision of the jurisdictional High Court in the case of Hemsons Industries (Supra), relied upon by the learned counsel for the assessee. It is contended by the Learned Departmental Representative that the assessee's claim for deduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person during the previous year, in the prescribed year, In the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. " 6.3 We further that another proviso has been inserted in sect ion 139(1) w.e.f. 1 4 2006 by Finance Act, 2005 which reads as under: "Provided also that every person being an individual or a Hindu undivided family or an associated or an association of persons or a body of individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of previous year, without giving effect to the provisions of section 10A or section 10B or section 10BA or Chapter VI A exceeded the maximum amount which is not chargeable to income tax, shall, on or before the due date, furnish a return of his income or the income of such person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. " 6.4 A reading of the above makes it clear that section 139(1) mandated an assessee to file a return in his total income assessable under the Act in the previous year exceeded the max ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the same are directory and not mandatory. A similar view would have to be taken in the present case also inasmuch as the provisions are the same. Consequently, we do not find any fault with the conclusions arrived at by the Tribunal. No substantial question of law arises for our consideration. The appeal is dismissed." 6.8 We find that the proviso in section 10B(1) which has been inserted regarding filing of return which we are considering now is akin to the provision of section 10(5) considered by the Hon'ble High Court as above. Hon'ble High Court had clearly held that such provision is directory and not mandatory. 6.9 Now in the present case, we find that there was only a marginal delay of I Y2 months in filing the return of income. The return filed was valid one. The same has also been accepted as a valid return by the Assessing Officer. The reasonable cause attributed by the assessee for the delay is that new provision of E filing the return was introduced from the current assessment year. There was some problem under the new provisions due to which the date of filing the return had extended by the CBDT from time to time and from 31 10 2006, the same was extended to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law." 6.11 The said provision makes it clear that the Board cannot give direction to appellate authorities. Further the Act does not prohibit that, relief in this regard when genuine hardship is faced, cannot be granted by Appellate Authority. We have already given a finding preceding paragraph that there was genuine hardship on the part of the assessee, under which circumstances the return was filed after a marginal delay. 6.12 Further the very fact that the Act envisages that relief regarding exemption should be considered and granted when application is made after the specified period in cases of genuine hardship clearly indicates that provision in this regard is directory and not mandatory. Hence in case of genuine hardship the relief can be granted by the appellate authority. 6.13 However, we find that Id. Commissioner of Income tax (Appeals) has accepted the assessee's submission, that the delay in filing of return should not be a reason to deny the assessee's claim of exemption under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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