Income Tax Appellate Tribunal - Chandigarh
M/S Himuda, Shimla vs Acit, Shimla on 10 May, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH "A", CHANDIGARH BEFORE: Sh. SANJAY GARG, JUDICIAL MEMBER DR. B.R.R. KUMAR, ACCOUNTANT MEMBER ITA Nos.480, 481 & 972/Chd/2012 Assessment Years: 2006-07, 2007-08 & 2009-10 HIMUDA Vs. The ACIT Nigam Vihar Circle, Shimla Shimla PAN NO: AAALH0034K Appellant Respondent Assessee by : Shri. Sudhir Sehgal Revenue by : Smt. Anita Sinha Date of Hearing : 06/05/2019 Date of Pronouncement : 10/05/2019 Order PER BENCH:
Both the above appeals have been filed by the Assessee against the order of the Ld. CIT(A), Shimla.
2. Appeal wise grounds reproduced hereunder:
Following grounds raised by the Assessee in ITA No. 480/Chd/2012 for A.Y. 2006-07:
Ground No 1) Claim of deduction u/s 80 IB (10) - Rs 2,33,74,215/-
a. The Ld A.O. had misconstrued the provisions of Act and the intent of the legislation and had very narrowly interpreted the provisions of the Act and has not allowed deduction u/s 80 (IB)(10) on flimsy grounds, but the CIT (A) has ruled that except for Projects mentioned in para 5.21 amounting to Rs 2110455.58 all other projects are permissible for deduction u/s 80 IB, however, because for the reasons that the return has been revised/filed late the provisions of Section 139(5) and Section 80 AC is attracted and as such the entre claim of Rs 23374215/- has been rejected.
b. That the provision of Section 80AC read with 139(5) were not applicable in the relevant assessment year. The said section was inserted by the Finance Act 2006 that is with effect from 01.04.2006 relevant to assessment year 2007-08. c. That the Ld A.O. and the CIT (A) has erred in fact and law by not going through the reasons for filing the returns late.
Ground No 2 Transfer Charges of Rs 237 16888/- Lacs
a) The Ld AO has not appreciated the facts and has treated the same a revenue receipts, whereas these are akin to compensation received to cover 2 development costs etc after completion of the project. The quantum is dependant on contingent happenings of an event on which the assesee does not have any control. These are unforeseen capital receipts which are non recurring in nature and the colony occupiers have a direct interest in the same and the receipts are to be used for their benefit itself.
b) The case of Bomaby Burmah Trading Corp. 161 ITR 386 which has been cited has wrongly been interpreted and the ratio of the other case cited i.e. 216 ITR 321 is not squarely applicable to the Housing Board/Authority.
Ground No 3 The Ld A.O. has indulged in pick and choose policy with a pro revenue stance. The Ld A.O. is treating the revised return as non est but at the same time is working out the taxable income on the basis of the same. However, when it comes to the question of transfer charges he is referring to the original returns, which is resulting in double taxation Following grounds raised by the Assessee in ITA No. 481 for A.Y. 2007-08 Ground No. 1) Claim of deduction u/s 80 IB(10) - Rs 56076048/-
a. The Ld A.O. had misconstrued the provisions of Act and the intent of the legislation and had very narrowly interpreted the provisions of the Act and has not allowed deduction u/s 80 (IB)(10) on flimsy grounds, but the CIT (A) has ruled that except for Projects mentioned in para 8 amounting to Rs 9813055.08 all other projects are permissible for deduction u/s 80 IB, however, because for the reasons that the return has been filed late the provisions of Section 80 AC is attracted and as such the entre claim of Rs 56076048/- has been rejected.
b. That the Ld A.O. and the CIT (A) has erred in fact and law by not going through the reasons for filing the returns late.
Ground No 2) Transfer Charges of Rs 6119038/- Lacs
a) The Ld AO has not appreciated the facts and has treated the same a revenue receipts, whereas these are akin to compensation received to cover development costs etc after completion of the project. The quantum is dependant on contingent happenings of an event on which the assesee does not have any control. These are unforeseen capital receipts which are rion recurring in nature and the colony occupiers have a direct interest in the same and the receipts are to be used for their benefit itself.
b) The case of Bomaby Burmah Trading Corp. 161 ITR 386 which has been cited has wrongly been interpreted and the ratio of the other case cited i.e. 216 ITR 321 is not squarely applicable to the Housing Board/Authority.
Following grounds raised by the Assessee in ITA No. 972/CHD/2012 For. A.Y. 2009-10 Ground No 1) Adequate opportunity not given :
The Ld CIT(A) has erred in fact and law by proceeding with ex parte orders in the said case. The chronology of event is as per statement of facts mentioned above 3 from which it amply clear that the Ld CIT(A) has defied all canons of natural justice.
Ground No 2) Transfer Charges of Rs 30296659/- Lacs Transfer charges denote revolving part of the unearned surplus generated from transfer of property by third parties, which It is used to incur expenditure towards general upkeep, unforeseen expenses like reconstruction of retaining walls, paths, parks etc., repair and maintenance and providing basic civic amenities. It by no means can be regarded as revenue. This being a capital/Fund receipt should not have been added to income.
Ground No 3) Contribution towards Pension The Contribution towards genuine employee welfare scheme should have been allowed as the Trust made For this purpose stands registered with the Income Tax Department, under Schedule IV of the Income Tax Act. The copy of acknowledgment furnished was shown to the assessing officer during the course of assessment, but was ignored.
3. These appeals have been filed on 09/08/2017 and dismissed due to non representation on the date of the hearing. The same has been recalled on 29/10/2018 and hence the present hearing.
4. Ground No. 2 of ITA No. 480/CHD/2012 for A.Y. 2006-07, Ground No. 2 of ITA No. 481/CHD/2012 for A.Y. 2007-08 not pressed Issue of 80IB for A.Y. 2006-07:
5. Brief facts of this issue are that the assessee filed return of income on 31/03/2007 declaring total income of Rs. 2,33,74,215/-. The revised return for the same has been filed on 31/03/2008 declaring income of Rs. 11,86,511/- and claiming exemption of Rs. 2,25,43,724/- under section 80IB(10). The Assessing Officer rejected the claim of the assessee on the grounds that the assessee has filed the original return beyond the due date allowed under section 139(1) and hence no deduction is allowable as per the provisions of Section 80AC.
6. Ld. CIT(A) on factual examination held that an amount of Rs. 21,10,455/- on account of the projects at Kullu, Nahan, Nalagarh, Sanjauli, Solan, Shogi, Una, Siddhpur is not eligible for deduction. At the same time the eligible exemption of Rs. 2,04,33,269/- was not allowed by the Ld. CIT(A) on the grounds that in view of the provisions of Section 139(5) and Section 80AC of the Income Tax Act,1961 and since the filing of the return has been delayed, the assessee would not be eligible for exemption.
Section 139(5) reads as under:
4" If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under sub-section(1) of section 142, discovers an omission or nay wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier"
Section 80AC reads as under:
" 80AC. Deduction not to be allowed unless return furnished.- Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-Income Tax Act,1961 or section 80-IAB or section 80-IB or section 80-IC or section 80-ID or section 80-IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section(1) of section 139."
Section 139(1) reads as under:
139. (1) Every person,--
(a) being a company or a firm; or
(b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed:
Provided that a person referred to in clause (b), who is not required to furnish a return under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or at any time during the previous year fulfils any one of the following conditions, namely :--
(i) is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or
(ii) is the owner or the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or
(iii) ***
(iv) has incurred expenditure for himself or any other person on travel to any foreign country; or
(v) is the holder of a credit card, not being an "add-on" card, issued by any bank or institution; or
(vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income during any previous year ending before the 1st day of April, 2005, on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed :
Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply:
Provided also that every company or a firm shall furnish on or before the due date the return in respect of its income or loss in every previous year :5
Provided also that a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6, who is not required to furnish a return under this sub-section and who during the previous year has any asset (including any financial interest in any entity) located outside India or signing authority in any account located outside India, shall furnish, on or before the due date, a return in respect of his income or loss for the previous year in such form and verified in such manner and setting forth such other particulars as may be prescribed :
Following fourth and fifth provisos shall be substituted for the existing fourth proviso to sub-section (1) of section 139 by the Finance Act, 2015, w.e.f. 1-4-2016 :
Provided also that a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6, who is not required to furnish a return under this sub-section and who at any time during the previous year,--
(a) holds, as a beneficial owner or otherwise, any asset (including any financial interest in any entity) located outside India or has signing authority in any account located outside India; or
(b) is a beneficiary of any asset (including any financial interest in any entity) located outside India, shall furnish, on or before the due date, a return in respect of his income or loss for the previous year in such form and verified in such manner and setting forth such other particulars as may be prescribed:
Provided also that nothing contained in the fourth proviso shall apply to an individual, being a beneficiary of any asset (including any financial interest in any entity) located outside India where, income, if any, arising from such asset is includible in the income of the person referred to in clause (a) of that proviso in accordance with the provisions of this Act:
Provided also that every person, being an individual or a Hindu undivided family or an association of persons or a body of individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year, without giving effect to the provisions of section 10A or section 10B or section 10BA or Chapter VI-A exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed.
Explanation 1.--For the purposes of this sub-section, the expression "motor vehicle" shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). Explanation 2.--In this sub-section, "due date" means,--
(a) where the assessee other than an assessee referred to in clause (aa) is--
(i) a company 32[***]; or
(ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or
(iii) a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, the 30th day of September of the assessment year;
(aa) in the case of an assessee who is required to furnish a report referred to in section 92E, the 30th day of November of the assessment year;
(b) in the case of a person other than a company, referred to in the first proviso to this sub-section, the 31st day of October of the assessment year;
(c) in the case of any other assessee, the 31st day of July of the assessment year.
Explanation 3.--For the purposes of this sub-section, the expression "travel to any foreign country" does not include travel to the neighbouring countries or to such 6 places of pilgrimage as the Board may specify in this behalf by notification in the Official Gazette.
Following Explanations 4 and 5 shall be inserted after Explanation 3 to sub-section (1) of section 139 by the Finance Act, 2015, w.e.f. 1-4-2016 :
Explanation 4.--For the purposes of this section "beneficial owner" in respect of an asset means an individual who has provided, directly or indirectly, consideration for the asset for the immediate or future benefit, direct or indirect, of himself or any other person.
Explanation 5.--For the purposes of this section "beneficiary" in respect of an asset means an individual who derives benefit from the asset during the previous year and the consideration for such asset has been provided by any person other than such beneficiary.
7. Before us, the Ld. AR argued vide his written submissions that the filing of the return was delayed due to delay by the local audit department and an eligible deduction cannot be denied due to technical default owing to bonafide reason and consequently delay in filing the revised return. It was argued that the provision of 80AC is akin to the fourth proviso to Section 10B.
8. Based on the harmonious reading of Section 10B, Section 80AC which stipulates the eligible deduction subjected to filing of return in time as stipulated under section 139(1) the Ld. AR argued that the matter has been decided in favour of the assessee in various judgments mentioned below:
• DHIR Global Industrial Pvt. Ltd. in ITA No. 2317/Del/2010 for A.Y. 2006-07 - In this case the deduction was allowed where in the return was filed with the delay of about one and half months due to software glitches which did not accept the return as the self assessment tax was not paid. The Tribunal has allowed the deduction claimed under section 10B on such return on the grounds that the due date specified under section 139(1) for claiming deduction under section 10B is directly and not mandatory. The Tribunal has accepted that it is a genuine and valid reason for marginal delay of filing of the return owing to software issues of the department. In this case the assessee though not filed the return in time has filed supporting documents claiming the deductions which were in time.
• Unitech Ltd. in ITA No. 1014/Del/2012 for A.Y. 2008-09- In this case the return was filed beyond the time limit specified in Section 139(1) allowing deduction under section 80IB of the Income Tax Act,1961 and the order of the Ld. CIT passed under section 263 was dismissed by the Tribunal on the grounds that the difference of opinion cannot be a reason for invoking Section 263. The order also dealt that the language of the provisions of Section 10B(1) and Section 80AC are pari material, and also referred the case of M/s Vega Conveyers and Automation Ltd. in ITA No. 1231/Hyd/2010 where in the Assessing Officer has rejected the deduction claimed under section 80IC though the return was filed in time the Form 10CCB was filed only during the assessment proceedings. The Tribunal held that delay in filing of Form 10CCB is a curable defect.
• S Venkataiya in ITA No. 984/Hyd/2011 - In this case the deduction claimed under 80IC was allowed wherein the return was filed belatedly with the delay of 74 days.
• Hansa Dalkoti in ITA No. 3352/Del/2011 - In this case the ITAT has allowed the deduction claimed under section 80IC wherein the return was filed after the due date on the grounds that the Assessee has filed the supporting documents before the Department within time but only the filing of the return was delayed. It was held that since the department was already having enough documents, the delay in filing of the return be treated as only a technical defect.7
• SAM Global Securities in ITA No. 1760/Del/2009 - In this case the exemption under section 35A were allowed though the claims have not made in the original return or by filing revised return based on the decision in the case of Goetze India Ltd. 284 ITR 323.
• Symbosis Pharmaceuticals Pvt. Ltd. in ITA No. 501/CHD/2017 - In this case the deduction was allowed wherein the return filed within the extended period available under sub section 4 of Section 139 due to reasons beyond control of the assessee.
• Venkateshwara Wires Pvt. Ltd. in ITA No. 53/Jaipur/2018 - In this case the deduction under section 80IA was allowed wherein the assessee has not filed the audit report in Form No. 10CCB along with return of income under section 139(1). The Tribunal did not accept the contention of the Revenue that since the audit report has not been filed along with the original return filed under section 139(1), even the revised return has been filed along with Form 10CCB. The Tribunal held that the deduction is allowable if the Form 10CCB is filed even along with valid revised return.
9. Against this backdrop the facts of the instant case are examined.
10. The assessee has filed return of income for the A.Y. 2006-07 on 31/03/2007 which makes it clearly a return not filed in time. Section 139(4) allows any person who has not furnished a return within the time allowed to him under section 139(1) he may furnish return for any previous year at any time before the end of the relevant assessment year or before the completion of the assessment whichever is earlier. Section 139(5) reads if any person, having furnished a return under sub-section(1) or in pursuance of a notice issued under sub section 1 of Section 142 discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier.
11. The due date for filing of return for the A.Y. 2006-07 under section 139(1) was 30/11/2006 whereas the assessee has filed the return on 31/03/2007 wherein the assessee has not claimed any deduction. The purportedly revised return was filed on 31/03/2008 claiming deduction under section 80IB. As per the provisions of Section 139(5) the assessee who has filed the return under section 139(1) in this case 30/11/2006 can only file a revised return by 31/03/2008. Hence the return filed by the assessee on 31/03/2008 becomes non-est.
12. The Assessing Officer in his order at para no. 4 has mentioned this fact but and also embarked upon an computation of determining the deduction which was truly a commendable exercise based on facts.
13. The Ld. CIT(A) has also clearly mentioned in his order at para no. 5.1 that the Assessing Officer has also framed assessment on merits without prejudice to the fact that the return of the income is a non-est return. Having said that the 8 return is non-est the Ld. CIT(A) has also embarked upon the similar computation determination of the deduction on her own for the A.Y. 2006-07.
13.1 With these facts the question to be decided narrows down to
a) whether deduction claimed under section 80IB in a non-est return be allowed or not.
b) whether the deduction claimed by the assessee before the appellate authority which was originally not claimed owing to the fact that the audit of the books of accounts of the assessee has been delayed and the deduction was claimed after the completion of the audit.
13.2 Regarding the issue of whether the deduction claimed under section 80IB in a non-est return be allowed or not, we hold that the non-est return is a not existing return in the eyes of the Law. Hence no beneficial use or adverse conclusion can be drawn from such return. It is a return on which none can act upon. It is simply not there. No views, interpretation, derivation can be taken or given on such legally non existing document.
13.3 Regarding the issue of whether the deduction claimed by the assessee before the appellate authority which was originally not claimed owing to the fact that the audit of the books of accounts of the assessee has been delayed and the deduction was claimed after the completion of the audit, we hold that in this case two points have to be observed namely whether the assessee primafacie is eligible for deduction or not ? And if eligible, whether the claim can be entertained at the appellate stage or not ?
14. We find that the decision of the Hon'ble Supreme Court in the case of "
National Thermal Power Company Ltd. Vs. CIT" 229 ITR 383, Full Bench of the Hon'ble High Court in the case of "Ahmedabad Electricity Co. Ltd. Vs. CIT" 1993 (199) ITR 351, another decision of the Hon'ble Bombay High Court in the case of "CIT Vs. "CIT Vs. Pruthvi Brokers and Shareholders Pvt. Ltd." (2012) 349 ITR 336 (Bom.) have already held that the appellate authorities have jurisdiction to deal not merely with additional ground which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. In the case of National Thermal Power Company Ltd. Vs. CIT" 229 ITR 383 the question before the Hon'ble Supreme Court was " where on the facts found by the authorities below a question of law 9 arises which bears on the tax liability of the assessee, whether the Tribunal has jurisdiction to examine the same ? The Hon'ble Supreme Court while answering the said question observed that under section 254 of the Income Tax Act, the power of the Tribunal in dealing with the appeals is expressed in the widest possible terms; the power of the Tribunal under section 254 is not restricted only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals); that both the assessee as well as the department have a right to file an appeal/cross objection before the Tribunal and the Tribunal is not prevented from considering questions of law arising in assessment proceedings although not raised earlier. While answering the question in affirmative, the Hon'ble Supreme Court concluded that the Tribunal has jurisdiction to examine a question of law which arises from the facts as found by the authorities below and having a bearing on the tax liability of the assessee. Similarly the full bench of the Hon'ble Bombay High Court in the cases of "Ahmedabad Electricity Company Ltd. Vs. CIT" and "Godavari Sugar Mills Ltd. Vs. CIT" by way of a common order dated 30/04/1992 (1993) 199 ITR 351 has observed that the basic purpose of an appeal procedure in an income tax matter is to ascertain the correct tax liability of the assessee in accordance with law. Therefore either at the stage of CIT(A) or the Tribunal the authorities can consider the proceedings before them and the material on record before it for the purpose of determining the correct tax liability. The Hon'ble full bench of the Bombay High Court observed that apart from the above, there was nothing in section 254 or section 251 which would indicate that the appellate authorities are confined to considering only the objections raised before them or allowed to be raised before them either by the assessee or by the department, as the case may be.
They (Appellate Authorities) can consider the entire proceedings to determine the tax liability of the assessee.
15. Further the Hon'ble Bombay High Court in the case of "CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd." (2012) 349 ITR 336 (Bom.) has observed that the assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional clams before them. The appellate authorities have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The words 'could not have been raised' must be construed liberally and not strictly. There may be several factors justifying the raising of a 10 new plea in an appeal and each case must be considered on its own facts. It may be further observed that the Hon'ble Bombay High Court in the case of 'Pruthvi Brokers & Shareholders Pvt. Ltd.' ITA No.3908 of 2010 decided on 21.06.12, while relying upon the various decisions of the Hon'ble Supreme Court and other Hon'ble High Courts has held that even if a claim is not made before the AO, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim is not barred. The Hon'ble High Court has further observed that the decision of the Hon'ble Supreme Court in the case of Goetze (India) Limited v. CIT' (2006) 157 Taxman relating to the restriction of making the claim through a revised return was limited to the powers of the Assessing Authority and the said judgment does not impinge on the power or negate the powers of the appellate authorities to entertain such claim by way of additional ground. Even otherwise, the Ld. CIT(A) ought to have considered the claim of the assessee in exercise of his appellate Jurisdiction under section 250 of the Act. Moreover, if the assessee is, otherwise, entitled to a claim of deduction but due to his ignorance or for some other reason could not claim the same in the return of income, but has raised his claim before the appellate authority, the appellate authority should have looked into the same. The assessee cannot be burdened with the taxes which he otherwise is not liable to pay under the law. Even a duty has also been cast upon the Income Tax Authorities to charge the legitimate tax from the tax payers. They are not there to punish the tax payers for their bonafide mistakes.
16. On a comprehensive reading of the judgments and the legal position laid down thereof in the case of National Thermal Power Company Ltd, Ahmedabad Electric Co. Ltd., Pruthvi Brokers & Shareholders Pvt. Ltd , Goetze (India) Limited and considering the fact that the assessee is eligible for claim of deduction which was otherwise eligible, which was denied solely for the reason that the deduction has not been claimed in the return, is hereby allowed.
17. Consequently, having allowed the deduction, we have gone through the deduction computed by the Ld. CIT(A) and also heard the arguments of the parties on this issue. We find that the Ld. CIT(A) has rightly calculated the eligible deduction from page no. 7 to 16 of the order dt. 27/02/2012. We have gone through the rationale and the method of calculation in determining the eligible deduction by the Ld. CIT(A) and find that the Ld. CIT(A) has determined the deduction based on the aggregate build up area, percentage of completion work, and the expenditure involved Accordingly out of the deduction claim of 11 Rs.2,25,43,724/- claimed by the assessee an amount of Rs. 21,10,455/- has been found to be taxable (as per the table below) and the remaining amount is hereby held to be eligible for deduction under section 80IB(10).
For A.Y 2006-07:
Project Amount of Profit Project No.2 Bajaura-ll, Kullu 592007.44 Project No. 10, Nahan 8436.42 Project No.11, Nalagarh 538415.47 Project No.14, SFS, Sanjauli 357902.04 Project No.15 SFS, Solan 9612.39 Project No. 16, Shoghi 72533.28 Project No.17, Una 71181.93 Project No.20, 21 & 22- BCS, Phase-I, Phase-Ill & 24093.66 Sidhpur (24093.66, Rs.424097.58 & 424097.58 Rs.12175.37) 12175.37 Total 2110455.58
18. Regarding the A.Y. 2007-08 the assessee has filed return on 31/03/2008 and claimed deduction under section 80IB(10). This return can well been taken as the return filed under section 139(4) instead of Section 139(1). Thus in principle the assessee would be eligible for deduction based on the judicial pronouncement that the delay beyond the control of the assessee cannot be a reason to deny the deduction.
19. Now coming to the quantum of the deduction the assessee has claimed Rs. 5,60,76,048/- under section 80IB(10) of the Income Tax Act,1961.
20. The Ld. CIT(A) in the page nos. 7 to 21 has determined the ineligible deduction which is as under:
Project Amount of Profit Project No. 2 Bajaura-II, Kullu 3510304.26 Project No. 10, Nahan No surplus shown Project No. 11, Nalagarh 4824952.40 Project No. 14, SFS, Sanjauli 971441.93 Project No. 15 SFS, Solan No surplus shown Project No. 16, Shoghi 135485.72 Project No. 17, Una No surplus shown Project No. 20,21, & 22-BCS, Phase-I 98760.38
Phase-III & Sidhpur (24093.66, Rs. 424097.58 & 238353.41 Rs. 12175.37) 33757.04 Total 9813055.08
21. We have gone through the rationale and the method of calculation in determining the eligible deduction by the Ld. CIT(A) and find that the Ld. CIT(A) has determined the deduction based on the aggregate build up area, 12 percentage of completion work, and the expenditure involved. After going through we are in total agreement with the computation arrived by the Ld. CIT(A) and hence an amount of Rs. 98,13,055/- is found to be taxable and accordingly the order of the Ld. CIT(A) is hereby upheld.
ITA No. 972/CHD/201222. Ground No. 1 and 2 not pressed.
23. Regarding the ground no. 3 taken up by the assessee pertaining to disallowance of contribution to pension fund under section 36(1)(iv), it has been brought to our notice that the ld. CIT, Shimla has accorded approval under Sub Rule (1) of Rule 2 of Part-B of the Fourth Schedule of Income Tax Act,1961 w.e.f 31/03/2008 i.e; from the date of creation of fund under section. Hence the assessee would be eligible for the deduction as the approval has been given retrospectively. Appeal of the assessee on this ground is allowed. The Assessing Officer is hereby directed to allow the deduction after due verification of the approval granted by the Ld. CIT, Shimla.
24. In the result, all the above appeals of the Assessee are allowed.
Order pronounced in the open Court.
Sd/- Sd/-
(SANJAY GARG ) (DR. B.R.R. KUMAR)
Judicial Member Accountant Member
AG
Date: 10/05/2019
Copy of the order forwarded to :
1. The Appellant
2. The Respondent
3. CIT
4. The CIT(A)
5. DR, ITAT, CHANDIGARH
6. Guard File