Chowgule & Co. (P) Ltd., Goa vs Assessee

ITA NO. 288/PNJ/2014 : (ASST. YEAR : 2004-05)

Asst. Commissioner of Income Vs. M/s. Chowgule & Company Tax, Circle-2, Margao, Goa. Pvt. Ltd., Chowgule House, (Appellant) Mormugao Harbour, Goa PAN : AAACC5479J (Respondent)

C.O NO. 39/PNJ/2014 : (ASST. YEAR : 2004-05)

M/s. Chowgule & Company Pvt. Vs. Asst. Commissioner of Income Ltd., Chowgule House, Mormugao Tax, Circle-2, Margao, Goa. Harbour, Goa (Cross Objector) (Respondent) PAN : AAACC5479J

Assessee by : Pradip P.S. Kakodkar, CA Revenue by : Dr. S. Sundaresan, DR Date of Hearing : 13/01/2015 Date of Pronouncement : 15/01/2015

ORDER

PER P.K. BANSAL

1. Both the appeal as well as the cross objection have been filed against the order of CIT(A) dt. 15.5.2014. In its appeal the Revenue has taken the following effective grounds of appeal :

"2. The Ld. CIT(A) has erred in deleting the addition of Rs.17,32,512/- made by the Assessing Office on account of excess deduction claimed u/s 80HHC of the IT Act even though the assessee has failed to submit the revised Form 10CCB which is one of the essential condition to claim revised deduction u/s 80HHC of the IT Act by way of filing revised return of income."

2 ITA NO. 288/PNJ/2014 & C.O NO. 39/PNJ/2014 (A.Y : 2004-05)

while in the C.O the Assessee has taken the following effective grounds of appeal :

"2.5 The Commissioner (Appeals) erred in not noticing that the Assessing Officer has not shown how the mere non filing of Audit report while filing the revised return amounts to failure to file primary facts especially when the same was filed with the original return. Commissioner (Appeals) also while dealing with merits has clearly said that the Assessing Officer has not pointed out any defect in non-filing of Audit Report while completing the re-assessment."

2. The brief facts of the case are that the AO found that in the original return the Assessee declared an income of Rs. 48,75,44,848/- while in the revised return an income of Rs. 49,36,21,357/- was declared. In the revised return the Assessee has capitalized an expenditure of Rs. 89,95,149/- on account of Barge Slipway which was claimed in the original return as revenue expenditure. The Assessee filed the audit certificate in Form 10CCAC alongwith the original return computing deduction u/s 80HHC at Rs.13,82,33,508/-. The AO asked for the explanation of the Assessee for reducing the deduction u/s 80HHC by Rs.17,32,512/-. The Assessee did not file the revised certificate from the Auditor in Form 10CCAC. The AO, therefore, reduced the claim u/s 80HHC from Rs. 13,99,66,020/- to Rs.13,82,33,508/- as has been worked out by the Auditor. The Assessee went in appeal before CIT(A). CIT(A) allowed the deduction u/s 80HHC at Rs.13,99,66,020/- observing that even if it is held that not filing of revised form 10CCAC was a mistake, it was a rectifiable mistake and instead of reducing the deduction, the AO could have obtained revised Form 10CCAC certified by a C.A from the Assessee.

3. We heard the rival submissions and carefully considered the same. We asked the ld. AR whether any revised Form 10CCAC has been filed by the Assessee before the CIT(A) or before us. The ld. AR denied filing of Form 3 ITA NO. 288/PNJ/2014 & C.O NO. 39/PNJ/2014 (A.Y : 2004-05)

10CCAC but contended that the AO should have obtained the revised Form 10CCAC from the C.A and it is not the duty of the Assessee to file revised Form 10CCAC. In our opinion, if the Assessee claims a deduction, the onus is on the Assessee to comply with the conditions stipulated under the provision under which the Assessee claims the deduction. It is not the duty of the AO to get the compliance of the relevant provisions and allow the deduction to the Assessee. The AO has to scrutinize the assessment and has to determine the taxable income after examining all the relevant details and documents where the Assessee complies with all the conditions in respect of claim made by the Assessee under any provisions of the Income Tax Act. The Assessee has claimed deduction u/s 80HHC amounting to Rs.13,99,66,020/- but the Audit report filed by the Assessee computes the deduction at Rs. 13,82,33,508/-. Had there been a mistake in the computation made by the C.A, in our opinion, the Assessee should have obtained the revised audit report in Form 10CCAC from the C.A. It is not the duty of the AO to obtain the revised Form 10CCAC certified by the C.A. Before us also the Assessee did not file the revised Form 10CCAC. Even though we had specifically asked for it from the ld. AR, he expressed his inability. Rather, he contended that it is the duty of the AO to obtain the revised Form 10CCAC from the C.A. Form 10CCAC, as certified by the C.A, has to be procured by the Assessee; not by the AO. It has to be filed before the AO by the Assessee and not to be enclosed by the AO after procuring from the C.A. We, therefore, set aside the order of the CIT(A) and allow the ground taken by the Revenue.

4. The only cross objection which was argued by the ld. AR puts the onus on the AO to procure the revised audit report. The submission made by the ld. AR, as has been taken in the above ground, has already been examined by us in the preceding paragraphs while deciding the ground taken by the 4 ITA NO. 288/PNJ/2014 & C.O NO. 39/PNJ/2014 (A.Y : 2004-05)

Revenue. In our opinion, the ground taken by the Assessee is merely supportive to the order of CIT(A). Since we have already allowed the ground taken by the Revenue, therefore, the C.O taken by the Assessee stands dismissed.

5. In the result, the appeal filed by the Revenue stands allowed while the cross objection filed by the Assessee stands dismissed.

6. Order pronounced in the open court on 15/01/2015.

Sd/- Sd/- (D.T.Garasia) (P.K. Bansal) Judicial Member Accountant Member Place : PANAJI Dated : 15/01/2015 *SSL*

Copy to : (1) Appellant (2) Respondent (3) CIT concerned (4) CIT(A) concerned (5) D.R (6) Guard file True copy, By order