TMI Blog2016 (8) TMI 1392X X X X Extracts X X X X X X X X Extracts X X X X ..... te Road Corporation [2014 (1) TMI 502 - GUJARAT HIGH COURT]. With our utmost respect to the Hon’ble High Court of Delhi, we are governed by the Hon’ble High Court of Gujarat, therefore, respectfully following the decision of the Hon’ble Jurisdictional High Court (supra), we set aside the findings of the ld. CIT(A) and restore that of the A.O. Ground no. 3 is accordingly allowed. Claim of depreciation @ 15% - Held that:- We find that the CIT(A) has allowed the claim by holding that electric fittings are eligible to depreciation as plant and machinery. For this proposition, we find that the ld. CIT(A) has followed the decision of the Hon’ble High Court of Rajasthan in the case of RG Ispat Ltd. [2003 (9) TMI 5 - RAJASTHAN HIGH COURT] and also the decision of the Tribunal in the case of Ahmedabad Benches in the case of Marwar Hotels Ltd.[2015 (11) TMI 1194 - ITAT AHMEDABAD]. - ITA. No: 1042/AHD/2012 - - - Dated:- 3-8-2016 - SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER For The Appellant : Shri K. Madhusudan, Sr. D.R. For The Respondent : Shri P.M. Mehta, A.R. PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. This appeal by the Revenue is d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e return u/s. 139(1) of the Act. The assessee chose not to reply. The A.O. accordingly dismissed the claim of deduction u/s. 80IB of the Act and made an addition of ₹ 73,09,275/-. 6. The A.O. further found that the assessee has not deposited Employee s contribution towards ESIC within due date. The assessee was asked to show cause why the delayed payment of Employee s contribution should not be treated as deemed income of the assessee. The assessee stated that it has paid the same before filing the return of income and, therefore, it has to be allowed. The submission of the assessee did not find favour with the A.O. who was of the firm belief that if the Employee s contribution is not deposited before the due date, the same is treated as income u/s. 2(24)(x) of the Act. The A.O. made the addition of ₹ 44,070/-. 7. On further probe, the A.O. found that the assessee has claimed depreciation on electric fittings @ 15% whereas the allowable depreciation rate is @ 10%. The A.O. accordingly disallowed the claim of depreciation to the tune of ₹ 1,90,634/-. 8. Assessee carried the matter before the ld. CIT(A) and reiterated its claim of deduction u/s. 80IB of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the provisions of Section 139(1) of the Act. In our considered opinion, provisions of Section 80AC of the Act squarely apply on the facts of the case in hand, Section 80AC reads as under:- 80AC. 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 80IA or section 80-IAB or section 80-IB or section 80-IC [or section 80-ID or section 80- IE], 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 subsection (1) of section 139]. 14. The Special Bench of the Tribunal at Rajkot had the occasion to consider the following facts in the case of Saffire Garments (supra):- The assessee, a partnership firm, filed its return of income claiming deduction under section 10A in respect of its profit derived from the export of articles produced in SEZ. The Assessing Officer, however, noted that the assessee had filed its return on 31.01.2007 whereas the extended due date for filing return of income for the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 234A also as per which, the assessee is liable to pay interest on the tax payable by him after reducing advance tax and TDS/TCS if any paid by him apart from some other reductions. Such interest is payable from the date immediately following the due date for filing the return of income and is payable up to the date on which such return of income was furnished by the assessee and if the assessee has not furnished any return of income then the interest is payable till the date of completion of the assessment under section 144. It is held that above is also one of the consequences of not filing return of income by the assessee within the due date. [Para 11] 16. A similar issue was also considered by the Co-ordinate Bench of Chandigarh in the case of Lakshmi Energy Foods Ltd. (supra), the relevant facts and findings of the Co-ordinate Bench read as under:- However, Hon'ble Supreme Court in case of Prem Nath Khanna (supra) held - that due date would mean due date as provided u/s 139(1). Therefore we are of the opinion that the decision of CIT Vs. MS Jagriti Aggarwal (supra) is not applicable particularly because there is a specific provision u/s 80AC which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eads as under: Sec 80IB r.w.s. 80AC of the Income-tax Act, 1961 deduction - profits and gains from industrial undertaking other than infrastructure development undertakings -Assessment year 2006-07 and 2007-08 - where an assessee wants to avail deduction u/s 80IB, he has to necessarily furnish his return of income containing such claim before due date specified in Sec 139(1) - held Yes Therefore in view of the above legal position and discussion it is clear that once the return is filed late beyond due date provided u/s .139(1) in Section 80AC then deduction u/s 8oIB cannot be allowed. 17. If, we consider the facts of the case in hand in the light of the decisions mentioned hereinabove, we find similarity in the facts. Therefore, respectfully following the decisions of the Special Bench and the Co-ordinate Bench (supra), we set aside the findings of the ld. CIT(A) and restore that of the A.O. Ground nos. 1 2 taken together are allowed. 18. Insofar as the addition made on account of delay in the deposit of Employee s contribution is concerned, we find that the ld. CIT(A) has deleted the addition following the decisions of Hon ble High Court of Delhi by holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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