TMI Blog2022 (7) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee, made a claim for deduction of profits under the provisions of section 80IB(10) of the Act. The claim was withdrawn in the revised return of income. Once, the revised return is filed, the original return of income must be taken to be withdrawn and substituted by the revised return. If we are, to accept the contention of assessee that the revised return was not filed on account of any omissions found in the original return, it should be construed to mean that the revised return was filed to cure defects in the original return of income, revised return would relate back to the original filing date, which means that the assessee had not made any claim in the return of income for deduction of profits u/s. 80IB(10) of the Act read with the provisions of sub-section (5) of section 80A of the Act. Claim had not undergone the process of assessment by the AO, therefore, such claims cannot be allowed by the CIT(A) for the first time in contravention of plain provisions of sub-section (5) of section 80IA of the Act and there is nothing on record to indicate that the CIT(A) had satisfied himself as to the satisfaction of conditions necessary for allowing the benefit u/s. 80IB(10) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These two appeals by the Revenue against the separate order dated 28-02-2017 and 03-07-2017 passed by the Commissioner of Income Tax (Appeals)-3, Pune [ CIT(A) ] for assessment years 2011-12 and 2012-13, respectively. 2. Since, the issues raised in both the appeals are similar basing on the same identical facts. Therefore, with the consent of both the parties, we proceed to hear both the appeals together and to pass a consolidated order for the sake of convenience. 3. First, we shall take up appeal in ITA No.1869/PUN/2017 for A.Y. 2011-12 of Revenue. 4. The appellant-revenue raised following grounds of appeal : 1) On the facts and circumstances of the case and in law, the Ld. CIT(A) has erred in allowing the deduction u/s. 80IB(10) of the Income Tax Act of Rs.3,85,54,219/- by ignoring the fact that commencement certificate was obtained first time on 31.03.2005. 2) On the facts and circumstances of the case and in law, the Ld. CIT(A) did not take cognizance of the fact that assessee himself revised his return of income, withdrawing his claim of deduction u/s. 80IB and did not press his claim during assessment proceedings. The CIT(A) did not give opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, by holding that though the claim was not made in return of income, can be allowed by the CIT(A), also adjudicated on the merits of allowability of deduction u/s. 80IB(10) of the Act and accordingly, allowed the appeal filed by the assessee. Being aggrieved by the decision of Ld. CIT(A), Revenue is in preset appeal. 8. The ld. DR submits that the Ld. CIT(A) had travelled beyond the jurisdiction in allowing the appeal of assessee by holding that the claim for deduction of profits u/s. 80IB(10) of the Act can be allowed, even though not made in the return of income. He further submits that the assessee had no grievance, since returned income had been accepted by the AO and no fresh claim can be entertained by the CIT(A), which had not undergone of the process of assessment by the AO. The ld. DR further submits that the assessee had preferred an appeal before the CIT(A) after the penalty proceedings initiated u/s. 271(1)(c) of the Act were dropped which clearly demonstrate that the assessee is not entitled for deduction u/s. 80IB(10) of the Act, for having not completed the project within stipulated period. 9. On the other hand, the Ld. AR for the assessee submits that during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UOI reported in 422 ITR 478 (Bombay). If we are, to accept the contention of assessee that the revised return was not filed on account of any omissions found in the original return, it should be construed to mean that the revised return was filed to cure defects in the original return of income, revised return would relate back to the original filing date, which means that the assessee had not made any claim in the return of income for deduction of profits u/s. 80IB(10) of the Act read with the provisions of sub-section (5) of section 80A of the Act. 12. Further, the claim had not undergone the process of assessment by the AO, therefore, such claims cannot be allowed by the CIT(A) for the first time in contravention of plain provisions of sub-section (5) of section 80IA of the Act and there is nothing on record to indicate that the CIT(A) had satisfied himself as to the satisfaction of conditions necessary for allowing the benefit u/s. 80IB(10) of the Act. Further, the CIT(A) failed to refer to material on record, if any, that the assessee is entitled to benefit of deduction u/s. 80IB(10) of the Act and in any event the direction of CIT(A) allowing the benefit u/s. 80IB(10) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed by the assessee before the CIT(A)-3, Pune. The submissions of which the CIT(A) reproduced in Para No. 2 in the impugned order. The CIT(A) in 154 proceedings held that the assessee is eligible for benefit u/s. 80IB(10) of the Act and accordingly directed the AO to compute eligible deduction u/s. 80IB(10) of the Act vide its order dated 03-07-2017. The appellant- revenue, having aggrieved by the order of CIT(A) passed u/s. 154 of the Act in allowing deduction u/s. 80IB(10) of the Act raised following grounds of appeal which are as under : 1. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) is justified in allowing the rectification application filed by assessee while holding that there is a mistake apparent from record when on similar facts the predecessor Ld. CIT(A) has adjudicated and rejected the plea of the assessee to admit additional evidence? 2. Whether on the facts and in the circumstances of the case and in law the Ld. CIT(A) has erred in allowing the deduction u/s. 80IB(10) of the I.T. Act of Rs.3,85,54,219/- by ignoring the fact that commencement certificate was obtained first time on 31/03/2005? 3. Whether on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of Hon ble High Court of Allahabad in the case of Dhampur Sugar Mills Ltd. Vs. CIT reported in 90 ITR 236 (Allahabad), Hon ble High Court of Gujarat in the case of Kunal Structure (India) Pvt. Ltd. Vs. Dy. CIT reported in 422 ITR 482 (Gujarat) and the Hon ble High Court of Bombay in the case of Atul Projects India Pvt. Ltd. Vs. UOI reported in 422 ITR 478 (Bombay). If we are, to accept the contention of assessee that the revised return was not filed on account of any omissions found in the original return, it should be construed to mean that the revised return was filed to cure defects in the original return of income, revised return would relate back to the original filing date, which means that the assessee had not made any claim in the return of income for deduction of profits u/s. 80IB(10) of the Act read with the provisions of sub-section (5) of section 80A of the Act. 19. Further, we notice that the claim for deduction u/s. 80IB(10) of the Act can be made only subject to fulfillment of condition precedents. In the present case, the AO had no occasion to examine the claim of appellant for deduction u/s. 80IB(10) of the Act. There is nothing on record to indicate that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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