TMI Blog2022 (9) TMI 964X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 social welfare legislation and claim of deduction u/s. 80IA is a substantive right and therefore, the purpose thereof cannot be defeated and frustrated. Even otherwise we do not find any reason and/or material to contradict the findings of the ld. Commissioner in coming to the conclusion for allowing the benefit of deduction claimed u/s. 80IA of the Act. Hence, in cumulative effect,we are inclined to uphold the impugned order. Consequently, the appeal of the Revenue Department is liable to be dismissed. - ITA No. 61 & 194/Del/2021 - - - Dated:- 29-8-2022 - SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER Revenue by : Mr. M. Baranwal, Ld. Sr. DR Assessee by : Mr.Hiren Mehta, Ld. CA ORDER PER N.K. CHOUDHRY, J.M. These appeals have been preferred by the Revenue Department against the orders dated 30.06.2020 and 17.02.2020, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-8, New Delhi (in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction u/s. 80IA of the Act is admissible to him and accordingly, denied the deduction of Rs. 1,85,97,591/- claimed by the Assesseeu/s. 80IA of the Act and added the same to the total income of the Assessee. 4. Being aggrieved, the Assessee challenged the addition in appeal before the ld. Commissioner, who vide impugned order allowed the claim of Assessee by concluding as under : 4. DECISION : The contents of the assessment order and the written submissions of the appellant have been carefully considered. Ground 3 is general and no submissions have been made by appellant. Therefore, the same is not being adjudicated. 4.1 Grounds No. 1 2 : Grounds No. 1 2 are directed against the addition of Rs. 1,85,97,591. It is seen that exactly similar controversy in appellant's own case for A.Y. 2016-17 in appeal no. 10250/18-19 has been decided by this office vide order dated 17/02/2020. In the said appellate order the claim of the appellant for deduction u/s 80IA(4) of the Act was allowed. The relevant portion of the appellate order for A.Y. 2016-17 is reproduced below 4.2 Ground no. 2 is directed against addition of Rs. 2,30,62,232/-. It is uncontroverted that the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80-1B. In this case Hon'ble Supreme Court dismissed the appeal of Revenue and confirmed the view taken by Madras High Court in case of CIT v. AKS Alloys (P.) Ltd. [2012] 18 taxmann.com 25 (Mad.) holding above. The facts of the case of the appellant are pari-materia with the facts in the above case. The only inconsequential difference being that in the case before Hon'ble Supreme Court Form No. 10CCB was filed physically during assessment proceedings whereas in the present case Form No. 10CCB was filed electronically during assessment proceedings. 4.5 All other case laws relied upon by the appellant have followed the above referred proposition settled by the Supreme Court. Therefore, respectfully following the order of Supreme Court in the case of G.M. Knitting Industries Pvt. Ltd. (supra) it is held that filing of audit report is directory in nature and if the audit report is filed before the completion of assessment, requirement of the section 80IA would be, met. Hence, the addition of Rs. 2,30,62,232/- is hereby deleted and the AO is directed to allow the claim of deduction u/s 80IA to the appellant. The ground of appeal No. 2 is hereby allowed. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 25.09.2015, but could not file report in Form No. 10CCB. Therefore, vide notice dated 29.10.2019 u/s. 142(1) of the Act, the Assessee was show caused to submit explanation and justification on allowability of claim in view of the provisions of section 80IA(7) read with Rule 12. In response to the said show cause, the Assessee vide its reply dated 11.11.2019 claimed that as per provisions of Rule 12(2) of the Income Tax Rules, 1962 (in short the Rules ) till the assessment year 2012-13, no audit report or other documents were required to be attached with the return of income. However after insertion of proviso to Rule 12(2) w.e.f. 01.04.2013, the audit report in Form No. 10CCB needs to be filed electronically. Though Form No. 10CCB was prepared at the time of audit and duly signed by the auditors, however the same was kept for presentation manually during the scrutiny/assessment as done in the assessments u/s. 143(3) for assessment years 2012-13 and 2014-15, in which the deduction claimed u/s. 80IA(4)(iv) was allowed. However, the return for the assessment year 2015-16 was processed u/s. 143(1) and therefore the duly signed form No. 10CCB could not be presented since the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r relevant reports were not required to be filed with the return of income. 8.1 On the contrary, ld. Commissioner while relying upon the appellate order passed by himself in the Assessee s own case for the assessment year 2016-17, wherein the contentions of the Assessee to the effects that if Form 10CCB is being filed before finalization of the assessment, then it suffices the requirement of section 80IA so as to allow the benefit of deduction u/s. 80IA of the Act. Further, filing of audit report along with return is not mandatory and only directory and Assessee cannot be made to suffer if it filed audit report in Form 10CCB in the course of assessment proceedings and not along with return as per dictum laid down by the Hon ble Apex Court in the case of CIT Vs. G.M. Knitting Industries Pvt. Ltd. Anr. (2015) 71 Taxmann.com 35 (SC), where it was held Even though necessary certificate in Form 3AA along with return of income had not been filed but same was filed before final order of the assessment was made, the Assessee was entitled to claim deduction under section 80-1B. was considered by the ld. Commissioner and finally held that the facts of the case of the Assessee are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . (h) [***] [(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 Form SUGAM (ITR-4S) or Form No. ITR-4 or Form No.ITR-5 or Form No. ITR-6 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. Rule 12 after 7th amendment in the Rules, effective from 01.04.2013 wherein provision has also been inserted : [Return of income and return of fringe benefits. 12. (1) The return of income required to be furnished under sub-section (1) or sub- section (3) or sub-section (4A) or sub-section (4B) or sub-section (4C) or subsection (4D) [or sub-section (4E)] [or sub-section (4F)] of section 139 or clause (i) of sub-section (1) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 288, 18 [before the specified date referred to in section 44AB and the Assessee furnishes by that date] the report of such audit in the prescribed form19 duly signed and verified by such accountant. 8.3 On perusing the provisions prior to and post amendment made in 2013 in the Rule 12 of the Rules and section 80IA(7) of the Act, it clearly reflects that earlier the Assessee was supposed to furnish the report in Form 10CCB in physical form whereas w.e.f. 01.04.2013, the Assessee is supposed to furnish the said report electronically . The Hon ble Apex Court passed the judgment on 24.07.2015 and clearly laid down the dictum that even if Form 3AA was not filed along with the return of income, but the same was filed during the assessment proceedings and before the final order of assessment was made, that would amount to sufficient compliance. Therefore, inference can be drawn that if the report in Form No. 10CCB was not filed along with return of income electronically, but filed during the assessment proceedings itself, then the substantive right cannot be denied, as also held by the Hon ble Madras High Court in the case of L T Chennai-Tada Tollway Ltd. vs. ITO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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