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Asia Pacific Marbles Pvt Ltd Versus Asst. CIT-8 (1) , Mumbai

2015 (6) TMI 926 - ITAT MUMBAI

Disallowance of the deduction claimed u/s.80-IB - non-furnishing the prescribed audit report in Form No. 10CCB - Held that:- The impugned order is a non-speaking order in-as-much as it does not convey the reason/s informing the decision. It is only when a judicial order bears the reason/s leading to the decision, that it can be said to be valid and, further, enable its review, to which it is subject, i.e., upon either party taking it before a higher appellate forum, as has been. Even if the ld. .....

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see if the facts and circumstances of the instant case are or are not, identical or similar, as the case may be, for the said decision to apply for the current year. Further still, it was also incumbent on the ld. CIT(A) to state as to why the decision/s by the tribunal, confirming the deduction u/s.80-IB for the earlier years in the assessee's own case, binding upon him, was not followed, as judicial discipline would dictate. His order, accordingly, does not satisfy the mandate of section 250(6 .....

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2, partly allowing the assessee's appeal contesting its assessment for the assessment year (A.Y.) 2006-07 vide order u/s. 143(3) of the Income Tax Act, 1961 ('the Act' hereinafter) dated 21.11.2008. 2. None appeared for and on behalf of the assessee-appellant when its appeal was called out for hearing, despite service of notice of hearing through RPAD. Even no adjournment motion stands moved by the assessee. In fact, we observe non-representation by and on behalf of the assessee thro .....

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.2006 through the electronic mode, declaring a total income of ₹ 24,13,007/. The same was subsequently selected for scrutiny under the verification procedure under the Act, and assessment framed u/s. 143(3) by the Assessing Officer (A.O.) vide order dated 21.11.2008 at a total income of ₹ 37,74,570/-. The variation between the returned and assessed income is on account of disallowance of deduction claimed under the section 80-IB, at ₹ 10,34,146/-; interest of ₹ 3,12,509/- .....

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T(A) erred in denying the claim u/s. 80IB inspite of the fact that after having accepted the belatedly filed Audit Report u/r. 46A and calling for Remand Report, he has grossly failed to consider that while appreciating an incentive provision, technical infirmities need to be discounted. Therefore, denying a genuine claim on technical ground is against the principle of natural justice when in earlier years and in later years, the same had been allowed to your Appellant. b) The ld. CIT(A) ought t .....

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is not mandatory and since not filing Audit Report is a curable defect, the ld. CIT(A) is not justified to disallows the claim. 2. LEVY OF PENAL INTEREST The Appellant, on merits, denies its liability to penal interest.' 3. We have heard the party before us, and perused the material on record. 3.1 As afore-noted, the principal reason for the impugned disallowance was the non furnishing of the audit report, as required by the provision itself (s. 80-IB(13) r/w s. 80- IA(7)). The same was tho .....

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had been stated by the assessee. The ld. CIT(A), however, confirmed the assessment, i.e., after reproducing the remand report dated 02.02.2012 by the A.O., holding as under: '4.3.1 ……………… I find that the similar issue arose to my consideration in the earlier years and I have dismissed the appeal of the appellant for the reasons contained therein. Accordingly, following my earlier decision the appeal of the appellant is accordingly dismissed.' 3.2 .....

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ant part/s thereof ought to have been reproduced by him, so as to convey the said reasons, which would then by incorporation form the reasons informing his order or decision, besides constituting a self-contained order, while in the present case it does not state, even broadly, the basis for the confirmation of the disallowance, i.e., for the earlier years. Again, it would also enable the reader to see if the facts and circumstances of the instant case are or are not, identical or similar, as th .....

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he law. 3.3 We further observe that though the A.O. has raised objections to the admission of the audit report per his remand report dated 02.02.2012, the ld. CIT(A) had already called for a remand report (supra) thereon from him. As, per Rule 46A (of the Income Tax Rules, 1962), the A.O.'s comments, i.e., an opportunity thereto to examine the additional evidence/s produced by the assessee or to produce any evidence/s in rebuttal, could only be upon admitting the same. The ld. CIT(A) has als .....

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plied with, formed the principal ground for the disallowance of deduction u/s.80-IB. Its examination, however and, rather, therefore, could not be circumvented. As such, its' belated filing apart, which the A.O. objects for admission in-as-much as the same was not filed despite adequate opportunity during the assessment proceedings, the same was required to be examined by him, i.e., on merits, and which he did not. His failure to do so would not automatically imply the said report as having .....

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