TMI Blog2019 (5) TMI 1122X X X X Extracts X X X X X X X X Extracts X X X X ..... tly on 22.4.2014 u/s 139(4) of the Act whereas the audit reports have been e filed before the due date of filing of return u/s 139(1) of the Act. We direct A.O to accept the tax audit reports submitted by the assessee in support of claim for deduction u/s 80IB. However the matter is remanded to the A.O for the purpose of verification as during the course of assessment proceedings the facts of the alleged claim u/s 80IB of the Act could not be examined on merits by the assessing authority. We therefore direct the Ld. A.O to examine the claim of the assessee u/s 80IB and if the conditions of Section 80IB of the Act are fulfilled then the deduction should be allowed and delay in filing of return of income should not affect in claiming the deduction by the assessee u/s 80IB - Appeal of the assessee is allowed for statistical purposes. - ITA No.612/Ind/2017 - - - Dated:- 16-5-2019 - Kul Bharat, Judicial Member And Manish Borad, Accountant Member For the Assessee : Shri S.S. Deshpande ,CA For the Revenue : Shri R.S. Ambedkar, Sr.DR ORDER PER MANISH BORAD, AM. This appeal is filed at the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80IB the income assessed at ₹ 50,48,376/-. Aggrieved assessee preferred appeal before Ld. CIT(A) but failed to succeed as Ld. CIT9A) adopted the view taken by Ld. A.O and dismissed the assessee s Grounds of appeal observing as follows; 4.After taking into consideration the AO's findings and appellant's oral and written submission made in the course of hearing as well as the facts of the case the issues involved in appeal are discussed and decided as under :- 5. Ground No.! 2:- Through these grounds of appeal the appellant has challenged the addition of ₹ 12,62,094/- on account of disallowance out of deduction u/s. 80IB of the Act. The AO made the disallowance on the ground that the appellant filed the return of income on 22-04-2014, beyond the prescribed time limit u/s 139(1) of the 1.T. Act. As per section 80AC of the LT. Act, deduction u/s 80IB(11A) cannot be allowed if the appellant does not file the return of income on or before the due date specified in section 139(1) of the LT. Act. The appellant in the present case filed the return of income beyond the due date specified in section 139(1) of the LT. Act. The AO r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 80AC of the Act for claim u/s 80IB assessee is required to furnish the return of income before the due date specified u/s 139(1) of the Act. We however find that similar set of facts came up before the Co-ordinate Bench of Chandigarh in the case of Symbosis Pharmaceuticals P Ltd V/s DCIT (supra) wherein deduction u/s 80IC was claimed. Audit report was filed before the due date but income tax return was submitted on 31.3.2014 and deduction u/s 80IC was denied. The Coordinate Bench after considering jurisdictional pronouncements gave following observations holding that the claim of the assessee cannot be outset with, as the return was filed within the extended period stipulated in section 139(4) of the Act and the assessee deserves to succeed in part. 6.4 We have considered the relevant findings in the assessment order and the impugned order and we find that the relevant documents in Support of its claim of deduction were available before the tax authorities well within time namely Book Audit Report in Form No. 29B and Tax Audit Report in Form No. 3CA/30 on 29.09.2013, Audit Report u/s 80rC along with Balance Sheet etc. Consequently, the occasion to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demonstrated by the Revenue then even Where delay occurs for reasons not attributable to the Revenue also. In the absence of any other argument, we do not see how in the facts as considered by different Courts in the decisions relied Upon by the Id. AR, why they should not be applied. Once it has been held that Section 80AC is a machinery provision, then the issue is to be considered in the light of the facts available. The legal position that the relevant provision is a machinery provision, applying the principles that being directory in nature enables the authorities to consider the reasons, consistently on record for late filing of the return. A perusal of the record shows that the affidavit of Shri Jagbir Singh 5/0 Shri Orn Pal, Managing Director of the assessee company is on record. Perusal of the same shows that it has been explained that on account of collusion of the tax consultant i.e. Chartered Accountant Shri A.S.Malhotra in regard to allotment of shares in another company i.e. Saitec Medical Pv', Ltd. wherein the assessee company had a major share holding resulting in filing of suite before the Company Law Board etc. and in connivan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a suit with Company Law Board, Delhi against the major shareholder i.e. Symbiosis Pharmaceuticals (P) Ltd. and other shareholders including the Deponent. We suspected collusion of our Auditors with these two Hdissenting shareholders as our Auditor was also Auditor and tax consultant of Wonder Products, Nahan Road, Moginand, Kal Amb, Distt. Nahan; a firm of these two persons/ their family members. The suspicion is on account of the fact that return of Income for the year under consideration was filed late when balance sheet and audit report was filed in time and also he has guided the other directors for filing a suit against the company. 5. That when we received the order of the DCIT in our case for the A.Y. 2013-14 on 16.01.2016; we consulted another CA who told us the intricacies of the order and thereafter we confronted the same with our Tax Consultant CA. A.S. Malhotra; who did not give any satisfactory reply for delay in .filing of Income Tax return and we asked for his resignation and changed our consultants as well as Auditors of both the Companies. 'His replies confirmed our suspicions that he is in hand with glove with jvir. Bhaiotia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s BOIC prior to the filing of the return and in fact they were filed during the assessment proceedings. 6.6 In the facts of the present case, as is evident from the assessment order itself, the Supporting documents for the claim u/s BOIC was filed well within the extended time prescribed u/s 139(4). The said fact is evident from a reading of the assessment order itself. We also note that the principle of law as applicable to claim of exemption u/s 54 as considered by the Hon'ble jurisdictional High Court in the case of CIT V Jagriti Aggarwal is fully applicable to the case at hand also and infact the decision of the Delhi Bench of the ITAT in the case of Hansa Dalakoti and Fiberfill Engineers (cited supra) relying upon the decision of the Apex Court in the case of Bajaj Tempo Ltd. (cited supra) and decision of the Hon'ble Delhi High Court in the case of Poddar Pigments Ltd. ( cited supra) fully SUpports the claim of the assessee. Mention may also' be made of the order of the Hyderabad Bench of the Tribunal in the case of S. Venktiah, (cited supra) and another order of the Delhi Bench in the case of Dheer Global Industries P.Ltd. (cited supra) also sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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