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TMI Blog2017 (2) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... itted on following substantial question of law: "Whether the finding recorded by the Tribunal to the effect that after 13.12.2011 the appellant has done nothing to pursue the pending matter for approval before the Director General of Income Tax under Section 80-IB (7)(a) of the Act is perverse since before the Tribunal the application moved by the appellant dated 29.3.2014 was on record?" 4. Appeals No. 30 of 2014, 31 of 2014 and 32 of 2014 filed by Revenue have been admitted on following substantial questions of law: "1) Whether the Income Tax Appellate Tribunal is justified under the facts and circumstances of the case in dismissing the department's appeal and confirming the order of CIT (A) when the assessee did not claim deduction under Section 80IB (7) (b) of the Income Tax Act, 1961 in its return or by filing a valid revised return as held by the Hon'ble Supreme Court in Goetze India Ltd. vs. CIT (2006) 284 ITR 323. 2) Whether the Income Tax Appellate Tribunal was justified under the facts and circumstances of the case in confirming the order of CIT (A) by which a direction has been issued to the Assessing Officer to give the deduction under Section 80IB (7) (b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for 50% deduction under Section 80 IB(7)(a); and, hotels covered by Clause (b) on Section 80 IB(7), there, prescribed authority competent for granting approval is Director General in the Directorate General of Tourism, Government of India. 8. Assessee's hotel in Lucknow comes within the Buddhist Circuit which is a tourist place notified by Department of Tourism, Government of India vide notification dated 01.07.1997. Lucknow also falls in Buddhist Circuit as notified by State Government in its notification dated 31.03.1999. Assessee, therefore, in order to claim exemption under Section 80 IB(7)(a) of Act, 1961 submitted application on 28.08.2002 before Director General, Income Tax (Exemptions). Since no decision was communicated to Assessee, it continued to request Prescribed Authority to pass order on its application and first representation referred to in memo of appeal is dated 11.11.2014. In the meantime assessment order was passed on 24.12.2009 against Assessee by competent Assessing Authority. Matter went up to Tribunal who vide order dated 13.12.2011 remanded matter to Assessing Authority. Claim for deduction under Section 80 IB(7)(a) was rejected by Assessing Authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor General, Income Tax (Exemptions) though application has been filed by Assessee in this regard in 2002. Competent Authority for granting approval is an officer of Income Tax Department itself. Assessee has neither any administrative control nor otherwise can compel said authority to act within a particular time and in a particular manner. It is the authority of Revenue itself, who has to grant approval. For own lethargy or inaction on the part of an officer of Income Tax Department, a deduction which otherwise may be available to Assessee, cannot be denied since it is not a case where Assessee is disqualified being ineligible for such deduction but question of approval is pending before Competent Authority, who is a senior officer of Income Tax Department and has not been able to get enough time to take a decision on the application filed by Assessee on 28.08.2002. Observations of Tribunal that Assessee did not pursue matter are unwarranted for the reason that whatever could have been done by Assessee, it has done by submitting application and rest is the job of departmental authority, specified in Rule 18 BBC. 13. Even otherwise, where a power has been conferred upon a holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had claimed actual deduction of Rs. 30,20,198/- under Section 80 IB(7)(a) but same was declined by Assessing Authority for want of approval by Prescribed Authority. Deduction under Section 80 IB(7) to a hotel is common and difference in Clauses (a) and (b) is with regard to percentage, which is 50% and 30% respectively. It is not a case where Assessee did not claim deduction under Section 80 IB(7). Whether his claim was justified for 50% deduction under Clause (a) or 30% under Clause (b) is a matter which relates to only quantum of deduction but it is not a case where deduction has not been claimed by Assessee specifically under Chapter VIA. Assessing Authority declined deduction by referring to Section 80A and a judgment of Supreme Court in Goetze (India) Ltd. vs. Commissioner of Income Tax, 2006(284) ITR 323 but in our view the words mentioned in Section 80A have not been properly construed by Revenue inasmuch as Section 80A(5) says that if deduction under any provision of Chapter VIA is not claimed then it will not be allowed. Assessee has claimed specifically deduction under a provision of Chapter VIA. The mere fact that clause referred therein is different, is not a substantia ..... X X X X Extracts X X X X X X X X Extracts X X X X
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