Income Tax Appellate Tribunal - Chennai
Polyhose India Pvt. Ltd., Chennai vs Department Of Income Tax on 2 November, 2010
IN THE INCOME TAX APPELLATE TRIBUNAL
"D" BENCH, CHENNAI
Before Shri N. S. Saini, Accountant Member and
Shri George Mathan, Judicial Member
.....
I.T.A. No. 122/Mds/2011
Assessment Year :2008-09
The Assistant Commissioner of M/s. Polyhose India Pvt. Ltd.,
Income-tax, Company Circle-V(2), v. B-1, Basement Alsa Tower
Chennai. Complex,
No. 185/187, Poonamallee
High Road, Kilpauk,
Chennai-600 010.
(PAN : AAACP6469R)
(Appellant) (Respondent)
Appellant by : Shri Anirudh Rai
Respondent by : Shri Sanjiv Kumar Shah
ORDER
PER GEORGE MATHAN, JUDICIAL MEMBER :
This is an appeal filed by the Revenue against the order of the learned CIT(Appeals)-V, Chennai in ITA No. 81/10-11 dated 02-11-2010 for the assessment year 2008-09.
2. Shri Anirudh Rai, learned CIT-DR represented on behalf of the Revenue and Shri Sanjiv Kumar Shah, CA represented on behalf of the assessee.
3. In the Revenue's appeal, the Revenue has raised the following grounds : 2
I.T.A. No.122/Mds/2011 "1. The order of the learned CIT(A) is contrary to law and facts of the case.
2.1 The learned CIT(A) has erred in allowing the claim of the assessee against the AO's action in disallowance of the claim of ` 14,31,64,909/- exemption u/s 10B for not having filed the return of income before the due date stipulated u/s 139(1) of the IT Act, 1961.
2.2 The learned CIT(A) has failed to appreciate that the AO has rightly disallowed the claim of deduction u/s 10B of the Act As per 4th proviso to sub sec.1 of Sec.10B of the Income tax Act, it was categorically stated that no deduction under this section shall be allowed to the assessee who does not furnish return of income on or before the due date specified u/s 139(1) of the Income tax Act, 1961.
2.3 It is submitted that CIT(A) relied on the decision of the Hon'ble ITAT, Delhi Bench "B" ITA No. 2317/Del/2010 in the case of ACIT vs. Dhir Global Industrial Pvt. Ltd. And hold that the delay in filing was not without reasonable cause and as such direct that the deduction u/s 10B should be allowed to the appellant. This is not acceptable since the assessee has not any reasonable cause for delay in filing of return of income.
3. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer restored."
4. It was submitted by the learned DR that the assessee is a company which is doing the business of manufacturing and trading of Hoses. It was the submission that the assessee had filed its return of income on 06-10-2008 for the relevant assessment year and had claimed exemption u/s 10B of the Income Tax Act, 1961 ('the Act' for short). It was the submission that the Assessing Officer in the course of assessment had disallowed the claim of deduction u/s 10B on the ground that the return of income filed on 06-10-2008 was beyond the time limit prescribed under section 139(1) of the Act. It was the submission that the 3 I.T.A. No.122/Mds/2011 learned CIT(A) had allowed the assessee's appeal by following the decision of the ITAT, Delhi Bench 'B' in the case of M/s. Dhir Global Industries P. Ltd. in ITA No. 2317/Del/2010 dated 30-07-2010. It was the submission that the order of the Delhi Bench 'B' in the case of M/s. Dhir Global Industries P. Ltd. was extracted in full by the learned CIT(A) in his order. It was the submission that in the said decision of the Tribunal though held that the proviso to section 10B(1) was only directory in nature and not mandatory, the Tribunal had restored the issue to the file of the Assessing Officer to examine the merits of the assessee's claim of exemption u/s 10B. It was the submission that the learned CIT(A) had allowed the claim of deduction u/s 10B which was not permissible. It was the submission that he had no objection if the issue is restored to the file of the Assessing Officer to examine the merits of the assessee's claim of exemption u/s 10B of the Act.
5. In reply, the learned authorised representative submitted that he had no objection if the issue is being restored to the file of the Assessing Officer for examination of the claim of the assessee on merits subject to the condition that the issue of delay in filing the return of income was not sent back for re-
consideration.
6. We have considered the rival submissions. As it is noticed that the learned CIT(A) has decided the issue by following the decision of the co-ordinate Bench of this Tribunal in the case of M/s. Dhir Global Industries P. Ltd., referred to supra, we are of the view that the issue of rejecting the assessee's claim for deduction 4 I.T.A. No.122/Mds/2011 u/s 10B is liable to be held in favour of the assessee in regard to the issue of the delay in filing the return of income. However, as it is noticed that the Assessing Officer has not gone into the merits of the claim of deduction u/s 10B of the Act made by the assessee, this issue is restored to the file of the Assessing Officer for re-adjudication after granting the assessee adequate opportunity of being heard. Here we may specifically make it clear that respectfully following the decision of the co-ordinate Bench of this Tribunal in the case of M/s. Dhir Global Industries P. Ltd., referred to supra, the issue regarding the delay in filing the return of income in respect of the claim of deduction under section 10B is held in favour of the assessee and the same shall not again form part of the adjudication before the Assessing Officer. In the circumstances, the appeal of the Revenue is partly allowed for statistical purposes.
7. The order was pronounced in the court on 30/06/2011.
Sd/- Sd/-
(N. S. Saini) (George Mathan)
Accountant Member Judicial Member
Chennai,
Dated the 30th June, 2011.
H.
Copy to: Assessee/AO/CIT (A)/CIT/D.R./Guard file