Income Tax Appellate Tribunal - Pune
Assistant Commissioner Of Income-Tax, ... vs M/S. Anand Shelter, Developers And ... on 13 February, 2019
आयकर अपील य अ धकरण "बी" यायपीठ पण
ु े म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, PUNE
ी अ नल चतव
ु द
, लेखा सद!य, एवं ी $वकास अव!थी, या यक सद!य के सम&
BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM
M.A. No. 30/PUN/2018
( Arising out of ITA No. 1606/PUN/2015 )
नधा'रण वष' / Assessment Year : 2011-12
The Assistant Commissioner of Income Tax,
(OSD), Ward-1(1), Pune.
........... आवेदक/Applicant
बनाम / V/s.
M/s. Anand Shelters, Developers and
Builders Pvt. Ltd.
Kohinoor, Sadashiv Peth,
Ganjave Path, Pune-411 030
PAN : AAFCA4825P
....... यथ / Respondent
Revenue by : Shri Sudhendu Das
Assessee by : Shri V.L. Jain
सन
ु वाई क तार ख / Date of Hearing : 16.11.2018
घोषणा क तार ख / Date of Pronouncement : 13.02.2019
आदे श / ORDER
PER VIKAS AWASTHY, JM
This Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') has been filed by the Department seeking rectification in the order of Tribunal dated 20.10.2017 in ITA No.1606/PUN/2015 for the assessment year 2011-12. 2 MA No.30/PUN/2018
A.Y.2011-12
2. Shri Sudhendu Das representing the department submitted that the Tribunal vide order dated 20.10.2017 has allowed the appeal of assessee in granting benefit of deduction u/s.80IB(10) of the Act despite the fact that the assessee had filed belated return of income under provision of section 139(4) of the Act. The provision of section 80AC of the Act specifically provides that no deduction u/s.80IB shall be allowed to the assessee unless the return of income is furnished for the relevant assessment year on or before the due date as prescribed in sub-section (1) to Section 139 of the Act. The ld. DR in support of his contentions placed reliance on the decision of Hon'ble Bombay High Court in the case of Babulal Mohanraj Jain Vs. CBDT reported as 253 Taxman 170.
3. On the other hand, Shri V.L. Jain appearing on behalf of the assessee vehemently submitted that the order of Tribunal is justified and well-reasoned and hence, requires no rectification. The ld. AR further submitted that Tribunal has passed the order after considering judicial pronouncements rendered by various Hon'ble High Courts. The ld. AR submitted that the decision rendered in the case of Babulal Mohanraj Jain Vs. CBDT (supra.) does not support the case of Revenue as it has been rendered in context of Section 119 of the Act. The observation of the Hon'ble High Court with respect to eligibility of assessee's claim of deduction u/s.80IB was not the issue. The Hon'ble High Court has made passing reference to the provisions of section 80AC of the Act and hence such observations cannot be said to be ratio dicendi of the judgment.
4. We have heard the submissions made by representative of rival sides and have considered the decision of Hon'ble Jurisdictional High Court in the case of Babulal Mohanraj Jain Vs. CBDT (supra.). 3 MA No.30/PUN/2018
A.Y.2011-12
5. The core issue raised in the appeal decided by the Tribunal vide order dated 20.10.2017 was:
"Whether in view of provisions of section 80AC, the assessee is eligible for claiming deduction u/s.80IB (10) if return of income is filed beyond due date as specified u/s.139(1) of the Act, but within the extended time specified u/s.139(4) of the Act."
Undoubtedly, the judgment rendered by the Hon'ble Jurisdictional High Court in the case of Babulal Mohanraj Jain Vs. CBDT (supra.) was not available to the Tribunal at the time of passing order sought to the rectified, as the said judgement was rendered subsequent to the order of Tribunal. It is a well settled law, that rectification proceeding can be initiated on the basis of judgement delivered by the Hon'ble Jurisdictional High Court or Superior Court even after passing of the order by Tribunal. In this regard, reference is made to the decision in the case of CIT Vs. Aruna Luthra reported as 252 ITR 76 ( P & H) and in the case of Kil Kotagiri Tea Coffee Estates Co. Ltd. Vs Income Tax Appellate Tribunal reported as 174 ITR 579 ( Kerela).
6. We find in the case of Babulal Mohanraj Jain Vs. CBDT (supra), it has been held that filing of return within the date specified under sub section (1) of Section 139 is a condition precedent for claiming deduction under section 80IB of the Act. Unless the condition precedent is fulfilled, the assessee cannot claim deduction. In light of law, laid down by the Hon'ble Jurisdictional High Court, it is apparent that the view taken by the Tribunal in allowing assessee's claim of deduction u/s.80IB (10) is contrary to the decision of the Hon'ble Jurisdictional High Court. The mistake is apparent from record, hence, needs rectification. Accordingly, the order 4 MA No.30/PUN/2018 A.Y.2011-12 dated 20.10.2017 passed by the Tribunal is hereby recalled and the appeal of the assessee is restored to its original number. The Registry is directed to list the appeal for fresh hearing on 08.04.2019 after issuing notice of hearing to both the sides.
7. In the result, Miscellaneous Application filed by the Revenue is allowed.
Order pronounced on Wednesday , the 13th day of February, 2019.
Sd/- Sd/-
(अ नल चतव
ु द
/ANIL CHATURVEDI) ($वकास अव!थी /VIKAS AWASTHY)
लेखा सद य/ACCOUNTANT MEMBER या यक सद य/JUDICIAL MEMBER
पण
ु े / Pune; दनांक / Dated : 13th February, 2019. SB आदे श क* + त,ल$प अ-े$षत / Copy of the Order forwarded to :
1. अपीलाथ / The Appellant.
2. यथ / The Respondent.
3. The CIT(Appeals)-1, Pune.
4. The CIT-1, Pune.
5. &वभागीय त न)ध, आयकर अपील य अ)धकरण, "बी" ब,च, पण ु े / DR, ITAT, "B" Bench, Pune.
6. गाड/ फ़ाइल / Guard File.
// True Copy // आदे शानस ु ार / BY ORDER, नजी स)चव / Private Secretary आयकर अपील य अ)धकरण, पण ु े / ITAT, Pune.
5MA No.30/PUN/2018 A.Y.2011-12 Date 1 Draft dictated on 13.02.2019 Sr.PS/PS 2 Draft placed before author 13.02.2019 Sr.PS/PS 3 Draft proposed and placed JM/AM before the second Member 4 Draft discussed/approved by AM/JM second Member 5 Approved draft comes to the Sr.PS/PS Sr. PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order