TMI Blog2023 (5) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kamlesh Jayantbhai, AM For the Assessee : Smt. Suhani Meharwal (C.A.) For the Revenue : Sh. A. S. Nehra (Addl. CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM Feeling aggrieved from the order of the National Faceless Appeal Centre, Delhi dated 08/02/2023 [here in after (ld. NFAC/CIT(A))] for assessment year 2021-22 the assessee preferred the present appeal which in turn was arise against the order of the assessing officer passed u/s. 143(1) on 08.07.2022. 2. In the present appeal the assessee raised following grounds:- 1. On the facts and in the circumstances of the case as well as law that AO (CPC) has erred in disallowing the deduction u/s 80JJAA amounting to Rs. 762810/- u/s 143(1)(a) and simultaneously Ld. CIT also erred in sustaining the disallowance in spite of filing form no 10DA duly signed by chartered accountant is available at the time of making assessment u/s 143(1)(a). Hence the disallowance is against the well settled principle of law, unjustified and liable to be quashed. 2. Assessee prays to allow, add, delete, alter, and modify the ground of appeal on or before the date of hearing of appeal. 3. Succinctly stated fact as culle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of deduction of Rs. 762815/-. Proposed adjustments u/s 143(1) (a) of I.T Act 1961 is issued on: 08/04/2022 (verified form page no 2 of paper book where screen shot of assessee portal is attached) Respond Due Date: 14/07/2022 (page no 2 of paper book) Response submit by assessee 31/05/2022(page no 2 and 3 of paper book) Your honour, being eligible, assessee has been claiming the deduction u/s 80JJAA W.E.F from A. Y 2017-18. By Finance Act, 2016 W.E.F from A.Y 2017-18, this provision was inserted in statute and from the very first year, assessee claimed the deduction. Every year, assessee obtained certificate from Chartered Accountant in form no. 10 DA before the date u/s 139(1) of the I.T Act, 1961 and furnish the same along with ITR filed u/s 139(1). Your honour, the fact, figures, evidences and particulars were also given to Chartered Accountant to obtain the certificate. But as your honour, this was the unprecedent year we all felt in our life in which each and every person suffered with COVID-19. All the humanity in world were facing great loss by losing many family members, relatives and friends. Each and every person was in great stress. The date u/s 139(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No deduction under sub- section (1) shall be allowed: Unless the assessee furnished the report of accountant before the specified date referred in section 44AB giving such particulars in the report as may be prescribed. Clause (iv) of sub-section (11B) of section 80-IB of the I.T Act, 1961 The amount of deduction in the case of an undertaking deriving profit from business of operating and maintaining a hospital in a rural area shall be 100% of profit and gains for 5 years if: - The assessee furnished the report of audit in such form and containing such particulars as may be prescribed duly signed by an accountant before the specified date referred to in section 44AB certifying the deduction has been correctly claimed. Similar condition is also provided in section 80-I (8), 80-IA (7) of the I.T Act, 1961. Your honour, assessee argued before CIT(A) that the substantial compliance to get the deduction has been made and assessee only failed to make procedural compliance, which too has been complied with before making intimation u/s 143(1)(a). But Ld. AO simply denied the claim by saying As per the requirements of section 80 JJAA, the appellant was mandatori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jaipur ITAT which is the jurisdictional ITAT allowed the claim in case of ITO v/s Marathon India Ltd ITA No. 287/JP/2018. The AO has not disputed the eligibility of the assessee for deduction U/s 80IE of the Act being nature of business and undertaking of the assessee engaged in the manufacturing of goods or articles. Only reasons for disallowance of claim of deduction U/s 80IE of the Act by the AO is not filing of the audit report in form No. 10CCB along with the return of income. It is also not in disputed that the assessee filed the requisite tax audit report in Form No. 10CCB during the course of assessment proceedings and before the assessment order was passed by the AO ( page no 45-48 of paper book) 4. CIT v/s AKS Alloy Pvt Ltd 205 TAXMANN 11 (Madras) While considering an identical issue of not filing of audit report in Form 10CCB along with return of income but filed the same before the assessment was completed is acceptable ( page no 49-51 of paper book) 5. CIT v/s Multitaxes System Pvt ltd 317 ITR 20 (Karnataka) Wherein it was held that when a relief is sought for under Section 80IB of the Act, there is no obligation on the part of the assessee to file return ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction should not be disallowed 12. ITAT Kolkata in case of DCIT vs Mackintosh Burn Limited held that the assessee claimed deduction u/s 80IA in revised ITR which replaces the original. Therefore, the certificate not filed with the original ITR does not form basis of disallowance of the exemption. 13. CIT vs Gujarat Oil Allied Industries 201 ITR 325, if audit report in the prescribed form is furnished before assessment then it is sufficient compliance. 14. Your honors, I also rely upon the decision of hon ble Delhi High Court dated 07/04/2021 in case of International Tractors Limited vs DCIT ITA no 35/2019 in which: - i. Assessee could not claim deduction u/s 80JJAA while filing of ROI u/s 139(1). ii. First time during assessment proceedings new claim for deduction u/s 80JJAA was moved by way an application along with certificate of Chartered Accountant in form no. 10 DA. iii. Ld. CIT (A) allow the claim which was allowed by Hon ble High Court.( copy of judgement is enclosed herewith) Prayer Being eligible to deduction, assessee claimed he deduction in ITR and form no. 3 CD. Before the date allowed by notice u/s 143(1)(a) the form no. 10 DA had been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different form. Even one decision cited is of SMC bench. 7. In the rejoinder the ld. AR of the assessee stated that the delay is on account of covid-19 where in the courts have taken liber view. The similar reasons have been sworn the Chartered Accountant of the assessee. The contention of the affidavit of the CA is reiterated here in below : 8. We have heard the rival contentions and perused the material placed on record. The bench noted that the revenue has not disputed the fact the assessee is eligible for claim the deduction u/s. 80JJAA but the only fault of the assessee is that the required report in Form no. 10DA was filed after the due date of filling the ITR for the year under consideration. To support the reasons affecting the delay the assessee filed the affidavit of the CA who filed the Form no. 3CD and Form no. 10DA thus it is not disputed that the same CA has certified the claim of the assessee in Form no. 3CD which was submitted in time and Form no. 10DA is not filed on account of the pandemic time wherein everybody life was disturbed for one or the other reasons. In that period it is not unusually that assessee or CA may make mistake and thereby the whol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a remand was not called for. We agree with Mr. Seth's contention that the CIT(A) in the exercise of its powers under section 250(4) of the Act was entitled to seek production of documents and/or material to satisfy himself as to whether or not the deductions claimed were sustainable/viable in law. This was, however, a case where the details were placed before the AO, who declined to entertain the claims only on the ground that they did not form part of assessee's original return and that the assessee had not made a course correction by filing a revised return. 15.1 This view was based, as noticed above, on the judgment of the Supreme Court rendered in Goetze ( India ) Ltd. ( supra ). The CIT(A), squarely, dealt with this and concluded, that a fresh claim could be entertained. Therefore, the Tribunal, as noticed above, has accepted this view of the CIT(A) and the revenue has not come up in appeal before us assailing this conclusion of the Tribunal. 16. In any event, we are of the view that, if a claim is otherwise sustainable in law, then the appellate authorities are empowered to entertain the same. This view finds reflection in a judgment of the coordinate b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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