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TMI Blog2022 (9) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... mutatis mutandis to ITA no. 194/Del/2021 as well. 3. Brief facts, relevant for adjudication of the instant appeal, are that the Assessee Company is engaged in the business of generation of power at Manglad Hydro Power Project, MauzaMajhewali, Tehsil Rampur, Bushahpur, Distt. Shimla (HP). The Assessee filed its return of income declaring income of Rs.10,39,040/- on 25.09.2015. Subsequently, the proceedings u/s. 147 of the Act were initiated by issuing notice u/s. 148 of the Act on dated 26.03.2019 after recording the reasons (which are reproduced at page 2 of the assessment order) to the effects that the Assessing Officer has reason to believe that the Assessee is not Admissible for deduction u/s. 80IA of the Act and at least an income of Rs.1,85,97,591/- chargeable to tax has escaped assessment for A.Y. 2015-16 within the meaning of section 147 of the Act. The Assessing Officer further noticed that the Assessee has claimed deduction of Rs.1,85,97,591/- u/s. 80IA of the Act, in its return of income filed u/s. 139 of the Act filed on 25.09.2015, along with which, though the Assessee e-filed the report in Form 3CA but the report in Form No. 10CCB was not e-filed which was filed subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O is on account of failure on the part of the assessee to electronically file the audit report in Form No. 10CCB along with the return of income. The assessee filed its return of income on 06.10.2016 but failed to file audit report in Form No. 10CCB which was filed on 04.08.2018 during the course of assessment proceedings for A.Y. 2016-17. It has been explained by the appellant that, claim under section 80IA(4)(iv)(a) related to 100% deduction of total income allocable to hydro power generation company was made in the return of income online filed before due date of filing and duly mentioned in tax audit report filed along with return. Further, for late submission of form under rule 12(2) the contention of the appellant is that submission of Form under Rule 12 is an additional requirement to support the claim of deduction under section 80IA and filing of form is directory in nature and not a mandatory requirement. Thus, the short controversy involved in this appeal is to determine whether late filing of Form No.10 CCB before the finalization of the assessment suffices the requirements of section 80IA so as to allow the benefit of deduction u/s 80IA or not. 4.3 The Appellant has r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before us. 6. The Ld. Sr. DRMr. M. Baranwal, against the impugned order submitted that the ld. Commissioner has erred in law and facts in deleting the addition made on account of denying the claim of deduction u/s. 80IA of the Act. Further erred in law and facts in ignoring the provisions of Rule 12 inserted w.e.f. 01.04.2013 which makes it a requirement to furnish form 10CCB electronically. Further, erred in law and facts in not considering the fact that if such lapses are to be cured during the assessment proceedings, then there should not have been any requirement for bringing the amendment to the Rules. 6.1 Mr.Baranwal further by drawing our attention to the Rule 12(2) of the Rules and section 80IA(7) of the Act, submitted that filing of the report in Form No. 10CCB along with return of income is mandatory and the ignorance of the same cannot be taken as an excuse. Further, proviso to Rule 12(2) of the Rules, cast a clear onus upon the Assessee to file the audit report along with the return of income. The Assessee is a habitual defaulter and not complying with the mandatory provisions of law. Even otherwise, the proceedings u/s. 147 of the Act are for the benefit of the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment proceedings/order. Hence, in view of the Hon'ble apex Court judgment in the case of G.M. Knitting Industries Pvt. Ltd. (supra), the filing of the report in form No. 10CCB during the assessment proceedings amounts to sufficient compliance. Mr. Mehta further claimed that in view of the judgment passed by the Hon'ble Gujrat High Court in the case of CIT vs. Mayur Foundation (2005) 274 ITR 562(Guj), when the matter is pending before the Tribunal by way of appeal, it could be said that the assessment proceedings are pending. Further, the proceedings before the Tribunal are meant to correctly assess the tax liability of the Assessee. If this be so, it follows that the assessment proceedings cannot be said to be complete and is pending till the appeal is heard and disposed of by the Tribunal and the order of the Tribunal is given effect to by the Assessing Authority by computing the correct tax liability of the Assessee. Therefore, the judgment as relied upon by the ld. DR in the case of Sun Engineering Works (P) Ltd. (supra) is not applicable to the facts of the instant case. 8. Heard the parties and perused the material available on record. We observe that the Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be met. Hence, the addition of Rs.2,30,62,232/- is hereby deleted and the Assessing Officer is directed to allow claim of deduction u/s. 80IA of the act to the appellant". In the present case, the ld. Commissioner, ultimately while relying upon the said order passed for the assessment year 2016-17, came to the conclusion that in this case it is seen that during the course of the reassessment proceedings the appellant filed form 10CCB vide e-acknowledgement No. 464522211170419 on 17.04.2019 much before the reassessment order which was passed on 07.12.2019, therefore, following the appellate order for A.Y. 2016-17, as referred above, the addition of Rs.1,85,97,591/- is hereby deleted and the Assessing Officer is directed to allow the claim of deduction u/s. 80IA of the Act to the appellant. 8.2 In order to adjudicate the issue under controversy properly, let us reproduce the provisions of Rule 12 of the Rules and section 80IA of the Act, prior to and post amendment which came into effect from 01.04.2013 as applicable to the instant case: Section 12 prior to 7th Amendment which came into effect from 01.04.2013: "[Return of income and return of fringe benefits. 12. (1) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [(2) The return of income required to be furnished in Form SAHAJ (ITR-1) or Form No. ITR-2 or Form No. ITR-3 or 18[Form SUGAM (ITR-4)] or Form No. ITR-5 or Form No. ITR-6 [or Form No. ITR-7] shall not be accompanied by a statement showing the computation of the tax payable on the basis of the return, or proof of the tax, if any, claimed to have been deducted or collected at source or the advance tax or tax on self-assessment, if any, claimed to have been paid or any document or copy of any account or form or report of audit required to be attached with the return of income under any of the provisions of the Act:] [Provided that where an Assessee is required to furnish a report of audit specified under sub-clause (iv), (v), (vi) or (via) of clause (23C) of section 10, section 10A[, section 10AA], clause (b) of sub-section (1) of section 12A, section 44AB [, section 44DA, section 50B], section 80-IA, section 80-IB, section 80-IC, section 80-ID, section 80JJAA, section 80LA, section 92E, [section 115JB, 5[section 115JC] or section 115VW] [or to give a notice under clause (a) of sub-section (2) of section 11] of the Act, he shall furnish the same electronically.] Section 80-IA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d undertake infrastructural projects." It is admitted fact that the Assessee by e-filing Form 3CA along with its return of income filed on dated 25.09.2015 itself, claimed the deduction under consideration and it is also not the case of the Revenue that the Assessee is not entitled and/or not fulfilled the conditions set out for claiming the said deduction. Therefore, it cannot be said that the Assessee has claimed the benefit first time in the proceedings u/s. 147 of the Act, and hence not allowed as per judgment of Hon'ble Apex Court in the case of Sun Engineering Works (P) Ltd. (supra). Had the claim not been filed by the Assessee in its return of income, then certainly, the Assessee would not be entitled to claim the said deduction under the proceedings u/s. 147 of the Act, but it is not the case here. Hence, the contention of the ld. DR to the effect that the Assessee as per judgment of the Hon'ble Apex Court in the case of Sun Engineering Works (supra) is not entitled to claim the deduction under challenge, is not tenable. Even otherwise, we observe that the legislature in its wisdom made the beneficial provisions for the deduction(s) under chapter VI-A of the Act, being s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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