TMI Blog2019 (5) TMI 845X X X X Extracts X X X X X X X X Extracts X X X X ..... gible for claim of deduction which was otherwise eligible, which was denied solely for the reason that the deduction has not been claimed in the return, is hereby allowed. Method of calculation in determining the eligible deduction - As gone through the rationale and the method of calculation in determining the eligible deduction by the Ld. CIT(A) and find that the Ld. CIT(A) has determined the deduction based on the aggregate build up area, percentage of completion work, and the expenditure involved Accordingly out of the deduction claim of ₹ 2,25,43,724/- claimed by the assessee an amount of ₹ 21,10,455/- has been found to be taxable (as per the table below) and the remaining amount is hereby held to be eligible for deduction under section 80IB(10) Disallowance of contribution to pension fund u/s 36(1)(iv) - HELD THAT:- As brought to our notice that the ld. CIT, Shimla has accorded approval under Sub Rule (1) of Rule 2 of Part-B of the Fourth Schedule of Income Tax Act,1961 w.e.f 31/03/2008 i.e; from the date of creation of fund under section. Hence the assessee would be eligible for the deduction as the approval has been given retrospectively. Appeal of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the receipts are to be used for their benefit itself. b) The case of Bomaby Burmah Trading Corp. 161 ITR 386 which has been cited has wrongly been interpreted and the ratio of the other case cited i.e. 216 ITR 321 is not squarely applicable to the Housing Board/Authority. Ground No 3 The Ld A.O. has indulged in pick and choose policy with a pro revenue stance. The Ld A.O. is treating the revised return as non est but at the same time is working out the taxable income on the basis of the same. However, when it comes to the question of transfer charges he is referring to the original returns, which is resulting in double taxation Following grounds raised by the Assessee in ITA No. 481 for A.Y. 2007-08 Ground No. 1) Claim of deduction u/s 80 IB(10) - ₹ 56076048/- a. The Ld A.O. had misconstrued the provisions of Act and the intent of the legislation and had very narrowly interpreted the provisions of the Act and has not allowed deduction u/s 80 (IB)(10) on flimsy grounds, but the CIT (A) has ruled that except for Projects mentioned in para 8 am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed as the Trust made For this purpose stands registered with the Income Tax Department, under Schedule IV of the Income Tax Act. The copy of acknowledgment furnished was shown to the assessing officer during the course of assessment, but was ignored. 3. These appeals have been filed on 09/08/2017 and dismissed due to non representation on the date of the hearing. The same has been recalled on 29/10/2018 and hence the present hearing. 4. Ground No. 2 of ITA No. 480/CHD/2012 for A.Y. 2006-07, Ground No. 2 of ITA No. 481/CHD/2012 for A.Y. 2007-08 not pressed Issue of 80IB for A.Y. 2006-07: 5. Brief facts of this issue are that the assessee filed return of income on 31/03/2007 declaring total income of ₹ 2,33,74,215/-. The revised return for the same has been filed on 31/03/2008 declaring income of ₹ 11,86,511/- and claiming exemption of ₹ 2,25,43,724/- under section 80IB(10). The Assessing Officer rejected the claim of the assessee on the grounds that the assessee has filed the original return beyond the due date allowed under section 139(1) and hence no deduction is allowable as per the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or at any time during the previous year fulfils any one of the following conditions, namely :- (i) is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or (ii) is the owner or the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or (iii) *** (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card, not being an add-on card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income during any previous year ending ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from such asset is includible in the income of the person referred to in clause (a) of that proviso in accordance with the provisions of this Act: Provided also that every person, being an individual or a Hindu undivided family 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 any other person in respect of which he is assessable under this Act during the 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 other 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. Explanation 1.-For the purposes of this sub-section, the expression motor vehicle shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). Explanation 2.-In this sub-section, due date means,- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 10B, Section 80AC which stipulates the eligible deduction subjected to filing of return in time as stipulated under section 139(1) the Ld. AR argued that the matter has been decided in favour of the assessee in various judgments mentioned below: DHIR Global Industrial Pvt. Ltd. in ITA No. 2317/Del/2010 for A.Y. 2006-07 - In this case the deduction was allowed where in the return was filed with the delay of about one and half months due to software glitches which did not accept the return as the self assessment tax was not paid. The Tribunal has allowed the deduction claimed under section 10B on such return on the grounds that the due date specified under section 139(1) for claiming deduction under section 10B is directly and not mandatory. The Tribunal has accepted that it is a genuine and valid reason for marginal delay of filing of the return owing to software issues of the department. In this case the assessee though not filed the return in time has filed supporting documents claiming the deductions which were in time. Unitech Ltd. in ITA No. 1014/Del/2012 for A.Y. 2008-09- In this case the return was filed beyond the time limit specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm 10CCB. The Tribunal held that the deduction is allowable if the Form 10CCB is filed even along with valid revised return. 9. Against this backdrop the facts of the instant case are examined. 10. The assessee has filed return of income for the A.Y. 2006-07 on 31/03/2007 which makes it clearly a return not filed in time. Section 139(4) allows any person who has not furnished a return within the time allowed to him under section 139(1) he may furnish return for any previous year at any time before the end of the relevant assessment year or before the completion of the assessment whichever is earlier. Section 139(5) reads if any person, having furnished a return under sub-section(1) or in pursuance of a notice issued under sub section 1 of Section 142 discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. 11. The due date for filing of return for the A.Y. 2006-07 under section 139(1) was 30/11/2006 whereas the assessee has filed the return on 31/03/2007 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entertained at the appellate stage or not ? 14. We find that the decision of the Hon ble Supreme Court in the case of National Thermal Power Company Ltd. Vs. CIT 229 ITR 383, Full Bench of the Hon ble High Court in the case of Ahmedabad Electricity Co. Ltd. Vs. CIT 1993 (199) ITR 351, another decision of the Hon ble Bombay High Court in the case of CIT Vs. CIT Vs. Pruthvi Brokers and Shareholders Pvt. Ltd. (2012) 349 ITR 336 (Bom.) have already held that the appellate authorities have jurisdiction to deal not merely with additional ground which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. In the case of National Thermal Power Company Ltd. Vs. CIT 229 ITR 383 the question before the Hon ble Supreme Court was where on the facts found by the authorities below a question of law arises which bears on the tax liability of the assessee, whether the Tribunal has jurisdiction to examine the same ? The Hon ble Supreme Court while answering the said question observed that under section 254 of the Income Tax Act, the power of the Tribunal in dealing with the appeals is exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39; must be construed liberally and not strictly. There may be several factors justifying the raising of a new plea in an appeal and each case must be considered on its own facts. It may be further observed that the Hon'ble Bombay High Court in the case of 'Pruthvi Brokers Shareholders Pvt. Ltd.' ITA No.3908 of 2010 decided on 21.06.12, while relying upon the various decisions of the Hon'ble Supreme Court and other Hon'ble High Courts has held that even if a claim is not made before the AO, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon'ble High Court has further observed that the decision of the Hon'ble Supreme Court in the case of Goetze (India) Limited v. CIT' (2006) 157 Taxman relating to the restriction of making the claim through a revised return was limited to the powers of the Assessing Authority and the said judgment does not impinge on the power or negate the powers of the appellate authorities to entertain such claim by way of additional ground. Even otherwise, the Ld. CIT(A) ought to have considered the claim of the assessee in exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Project No.14, SFS, Sanjauli 357902.04 Project No.15 SFS, Solan 9612.39 Project No. 16, Shoghi 72533.28 Project No.17, Una 71181.93 Project No.20, 21 22- BCS, Phase-I, Phase-Ill Sidhpur (24093.66, ₹ 424097.58 ₹ 12175.37) 24093.66 424097.58 12175.37 Total 2110455.58 18. Regarding the A.Y. 2007-08 the assessee has filed return on 31/03/2008 and claimed deduction under section 80IB(10). This return can well been taken as the return filed under section 139(4) instead of Section 139(1). Thus in principle the assessee would be eligible for deduction based on the judicial pronouncement that the delay beyond the control of the assessee cannot be a reason to deny the deduction. 19. Now coming to the quantum of the deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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