P.Bhavani, Chennai vs Assessee

P. Bhavani, The Assistant Commissioner of No.88, Brindhavan Street, Vs Income Tax, West Mambalam, Central Circle I (5), Chennai 600 033 Chennai

[PAN:ACJPB 3523E] (अपीलाथ'/Appellant) (()यथ'/Respondent)

आयकर अपील सं./ I.T.A. No.83 /Mds/2015 ( नधा रण वष / Assessment Year : 2010-2011 ) R. Jayalakshmi The Assistant Commissioner of L/R R.Kumar, Vs Income Tax, No.88, Brindhavan Street, Central Circle I (5), West Mambalam, Chennai Chennai 600 033

[PAN: ACTPJ 5278Q] (अपीलाथ'/Appellant) (()यथ'/Respondent)

अपीलाथ क ओर से / Appellant by : Shri. G. Gopalan, Retd JCIT & Shri. T. Vasu, Advocate यथ क ओर से / Respondent by : Shri. S. Dasgupta, IRS, JCIT.

सन ु वाई क तार ख/Date of hearing : 27.04.2015 घोषणा क तार ख /Date of Pronouncement : 01.05.2015 :- 2 -: I.T.A.Nos.82 & 83/Mds/2015

आदे श / O R D E R

PER CHANDRA POOJARI, ACCOUNTANT MEMBER

These two appeals by different assessees are directed

against different orders of Commissioner of Income Tax (Appeals)-I,

Chennai, dated 12.11.2014 for the above assessment year 2010-11.

Since the issue in these two appeals is common in nature, hence these

appeals are combined, heard together, and disposed of by a common

order for the sake of convenience.

2. The grievance of the assessee's in these appeals is with regard

to disallowing the claim of deduction u/s.80IB(10) of the Act. Since

the issue is common in nature in both appeals, we consider the facts

as narrated in ITA No.82/Mds/2015 for adjudication.

3. In this case, the original return of income in ITR -IV for the

assessment year 2010-2011 was filed electronically by the assessee

on 20.09.2010 vide E-filing acknowledgement Number

156323040200910. The return was processed u/s.143(1) by CPC,

Bangalore on 12.03.2011, whereby in the income tax computation,

the deduction under Chapter VIA was computed at I1,00,000/-,

though the deduction claimed by the assessee in the return of :- 3 -: I.T.A.Nos.82 & 83/Mds/2015

income was I3,84,50,966/-. The assessee preferred an application

for rectification of the intimation dated 12.03.2011, but the same

was rejected by the CPC Bangalore vide its order dated 26.07.2011.

Against this order of rectification, the assessee preferred appeal

before the Commissioner of Income Tax (Appeals)-I, Chennai, who

vide his order in ITA No.84/11-12 dated 03.8.2012, allowed the

appeal of the assessee. The Department preferred an appeal before

the ITAT and the Hon'ble ITAT vide its order in IT

No.1997/Mds/2012 dated 7.2.2013 dismissed the appeal of the

Revenue after it was pointed out that vide an order u/s.154 dated

16.10.2012, the Commissioner of Income Tax (Appeals)-I, Chennai

rectified his order dated 3.8.2012 and dismissed the appeal filed by

the assessee. An order u/s.143(3), dated 28.03.2013 was passed by

ACIT, Central Circle 1(5), Chennai whereby the claim of deduction

u/s.80IB was once again disallowed. The assessee preferred appeal

before the Commissioner of Income Tax (Appeals), Central-I,

Chennai who vide order dated 12.11.2014 in ITA No.32/2013-14 has

dismissed the appeal of the assessee. Against this, the assessee is

in appeal before us.

4. The ld. Authorised Representative submitted that for the AY

2010-11, the Assessee's turnover in respect of 80 IB Project is

Rs.7,08,79,942/-. Statutory Audit Report in Form 3CB & 3CD were :- 4 -: I.T.A.Nos.82 & 83/Mds/2015

obtained from Auditor Thiru. V.Kalyanakrishnan, Partner, M/s Suchitra

& Co, Membership No. 24338, vide report dated 20.9.2010. The last

date for filing of return for the AY is 30.09.2010, in view of the

statutory audit conducted u/s 44AB. Accordingly, Return of Income for

AY 2010-11 was electronically filed on 20.09.2010 vide

Acknowledgement No. 156323040200910. The ld. Departmental

Representative pointed out that the Return of Income was filed

belatedly on 20.09.2010 instead of 04.08.2010, since ours is 44AB case

and last date is 30.09.2010. The Assessee is an individual and the

turnover of Assessee in 80 IB itself is I5,41,12,425/- 44AB, Form 3CB

& 3CD dated 20.09.2010 filed. Therefore, the last date for filing the

Return of Income is 30.09.2010, the Return of income is filed on

24.09.2010, which is well within the time limit u/s 139(1). The

Department counsel argued that the Assessee did not claim deduction

u/s 80 IB (10) under Chapter VI A in the computation of total income.

As revealed from the copy of electronically filed E-Return in form

No.ITR-4 downloaded from the Departmental website

www.incometaxindiaefiling.gov. in the deduction under Chapter VIA

of I3,84,50,966/- was claimed.

5. The ld. Departmental Representative submitted that as in

evident from the copy of the downloaded version (downloaded on :- 5 -: I.T.A.Nos.82 & 83/Mds/2015

08.10.2012) of the ''computation of total income and tax thereon

(ITR-4)'', the relevant columns of page 1 reads as under:-

'Are you liable for audit u/s.44AB.....................No'

In page 16 Part-B- Computation of total income column 11 reads as

under:-

Deduction under Chapter VI-A(S of Schedule VIA.........) I1,00,000/-

In column 16 of page 18, the E-filing acknowledgement No. is

given, which tallies with the copy of the E-filed return purportedly

filed by the assessee. Perusal of the downloaded version of the E-

filed return shows that the purported deduction u/s.80IB of

I3,83,50,966/- was never claimed by the assessee. Moreover, the

assessee herself has declared in her return of income that she was

not liable to get her accounts audited u/s.44AB. The copy of the

return as submitted by the assessee in the paper book also does

not disclose the date of audit report. As such, it can be safely

concluded that the assessee was not required to get her accounts

audited is under legal obligation to file her return of income within

due date (or as extended by virtue of notification to that effect) as

per provisions of section 139(1) of the Income Tax Act, 1961. The

extended due date for filing the return of income for individuals

who are not required to get their accounts audited for the relevant

assessment year was 04.08.2010. The return of income was filed :- 6 -: I.T.A.Nos.82 & 83/Mds/2015

only n 20.09.2010. In this respect, he drew our attention to the

provisions of section 80AC of the Income Tax Act, 1961 as are

applicable to the facts of the case.

6. In rejoinder, the Authorised Representative for assessee

submitted that the ld. Departmental Representative produced before

the bench four computer sheets which are nothing but the

reproduction of column as computed by the CPC u/s.143(1) and with

reference to tax calculation, the columns as computed by the

Department in order u/s.154, CPC, Bengaluru. In nutshell, it is not the

paper from which claim of the appeal could be ascertained. On the

other hand, these are the figures shown in the assessment order. He

drew our attention to the CPC order u/s.154. It is submitted that after

the order u/s.143(3) that a claim under Chapter VI is evident in several

places in the return of income as could be seen from the downloaded

return of income.

7. We have heard both the parties and perused the material on

record. In this case, filing of return of income as seen from the

records the return in form ITR -4 reads as under:-

:- 7 -: I.T.A.Nos.82 & 83/Mds/2015

INDIAN INCOME TAX RETURN Assessment Year ITR-4 [For indls and HUFs having income from a proprietory ., business or (Please see Rule 12 of the Income Tax- 2010-11 (Also see attached Instructions) First Name Middle Name Last Name PAN R.JA Y ALAKSHMI ACTPJ5278Q Flat 1 Door 1 Block No Name of Premises / Building Status (I-Individual ,H-HUF) NEW NO.88 Village BRINDA V AN /NAVIN'S I - Individual Road 1 Street 1 Post Office Area 1 Locality Date of birth BRlNDAVAN STREET WEST MAMBALAM (in case of individual) 21/05/1933 Town/Citv/District State Sex (Select) CHENNAI

29-TAMILNADU 600033 F-Female

Email Address (Std code) Pho Employer Category (if in gm~navinhousing.com 44 ne employment) OTH 2372 Designation of Assessing Officer (Ward 1 Circle) Return filed under section 11 - I(PI see instruction no 9(i)] U/S 139(1)

Whether original or revised return? O-Original

If revised, enter Receipt no and Date of Date filing original return (DD/MM/YYYY): (DD/MM/YYYY) en Residential Status RES - Resident Whether this return is being filed by a representative assessee? lf yes, please furnish N-No ( ... following information

a Name of the representative b Address of the representative c Permanent Account Number (PAN) of the representative

Are you liable to maintain accounts as per section 44AA? N-No

Are you liable for audit under section 44AB? (Select) lf yes, furnish following information- N a Name of the auditor signing the tax audit report V.KAL Y ANAKRISHNAN b Membership no. of the auditor 024338 c Name of the auditor (proprietorship/ firm) SUCHITRA & CO ... d Permanent Account Number (PAN) of the proprietorship/ firm AADFS9457J e Date of audit report. 23/09/2010 (DDIMMIYYYY) For Office Use Only For Office Use Only Receipt No Date Seal and signature of receiving official :- 8 -: I.T.A.Nos.82 & 83/Mds/2015

8. It was mentioned that the assessee is not liable to maintain

accounts as per Section 44AA of the Act. As seen from the above, the

assessee filled column regarding applicability of provisions u/s.44AB as

''end'' (No). A copy of the return said to be downloaded by the

assessee does not contain date of audit report as pointed out by ld.

Departmental Representative. It was stated that the assessee was

not required to get her accounts audited u/s.44AB and so the assessee

has not got audited accounts. Consequently, no Audit report was filed.

The assessee being an individual, who is not required to get her

accounts audited is under legal obligation to file her return of income

within due date by virtue of section 139(1) of the Act for the

assessment year under consideration. In this case there is extended

due date for filing the return of income for 'individual'' as the assessee

is not required to get her accounts audited for the impugned

assessment year and due date for filing the return of income was

04.08.2010. The assessee has filed return of income on 20.09.2010.

The assessee has been hit by provisions of section 80AC of the Act.

The provision of section 80AC reads as follows:-

''wherein computing the total income of an assessee of the previous year relevenat to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any decution is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC (or section 80-ID or section 80IE), no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before :- 9 -: I.T.A.Nos.82 & 83/Mds/2015

the due date specified under sub-section (1) of section

139. In the instant case, the extended due date was 04.08.2010 and the return was filed belatedly on 20.09.2010. As per provisions of section 80-AC, the assessee, in order to avail of the benefits of deduction u/s.

Chapter VI-A is required, as per law, to file the return of income within the due date. This has not been done and as such, the assessee is not eligible to avail of the benefit of deduction u/s.80IB''.

Since the assessee had filed the return of income belatedly on

20.09.2010, the assessee has not entitled for deduction u/s.80 IB of

the Act. The assessee has made a plea before us, that there was an

error in filling E-return of income which is too technical is to be

ignored. In our opinion, this was considered by the Tribunal on the

earlier occasion and the Tribunal given the findings in assessee's own

case for this assessment year in ITA No.1997/Mds/2012 which is

starring at the assessee wherein observed that reading of the print

out of the e-return of the assessee clearly show that there was an

attempt to mislead the Department. The assessee after working out

tax dues, showed taxes paid as I1,38,84,356/- when the total even as

per assessee's figure itself ought have been more. We find that the

Tribunal in the first round of litigation in ITA No.1997/Mds/2012, dated

07.02.2013 observed as under:-

"6. We have perused the orders of the CIT(A) and also heard the contention of the Ld. D.R. We find that the assessee while filing the e-return had claimed deduction of ₹1 lakh only under Chapter-VI A of the Act. Assessee had profit and gains of ₹8,62,93,033/-. Along with salaries and income from other sources, the gross total income of :- 10 -: I.T.A.Nos.82 & 83/Mds/2015

assessee was ₹8,98,13,395/-. Against the column for showing deduction under Chapter-VI-A, assessee gave the figure of ₹1,00,000/-. However, in the column showing the total income ₹5,13,62,429/- was shown. A reading of the print out of the e-return of the assessee clearly show that there was an attempt to mislead the Department. Assessee after working out tax dues, showed taxes paid as ₹1,38,84,356/- when the total even as per assessee's figure itself ought have been more. In such a situation, we cannot say that application for rectification filed by the assessee for granting it deduction of ₹8,62,93,033/- under section 80-IB was unjustly rejected by the Assessing Officer. Assessee had preferred no such claim in its return at all. This seems to be the right decision taken by the Assessing Officer. On the other hand, CIT(A) had accepted the claim of assessee going into the merits when the rectification was rejected by the A.O. based on the figures given in the e-return filed by the assessee. In any case, CIT(A) on 16.10.12 realizing his mistake, rectified the earlier appellate order, dismissing the appeal filed by the assessee against the rejection of petition by the Assessing Officer. Thus, as matter stands now, there is no order of the CIT(A) dated 03.08.12 in the eyes of law. Hence appeal filled by the Revenue has become infructuous. Since the Cross Objection of the assessee is only to point out the factum of withdrawal of the earlier order by the CIT(A), it is only a clarification, thus needing no specific adjudication".

9. In such a situation, we cannot say that claim for granting

deduction under section 80-IB was unjustly rejected the Assessing

Officer. Assessee had preferred no such claim in its return at all. This

seems to be the right decision taken by the Assessing Officer. These

findings of us is also supported by earlier order of the Tribunal which

has reached finality. At this stage, we are not in a position to take a :- 11 -: I.T.A.Nos.82 & 83/Mds/2015

different view than earlier. Accordingly, in our opinion, the assessee

cannot be granted deduction u/s.80IB of the Act. Further, we observe

that if there is technical error caused while downloading e-return the

assessee could have brought to the knowledge of the competent

authority at relevant point of time which assessee failed to do and

tried to mislead the Bench, which is nothing but to present wrong

facts of the case. Accordingly, we are inclined to dismiss this appeal

of the assessee.

10. In the case of R. Jayalakshmi, the ld. Authorised Representative

The ld. Authorised Representative submitted that for the AY 2010-11,

the Assessee's turnover in respect of 80 IB Project is I7,08,79,942/-

Statutory Audit Report in Form 3CB & 3CD were obtained from Auditor

Thiru. V.Kalyanakrishnan, Partner, M/s Suchitra & Co, Membership No.

24338, vide report dated 24.9.2010. The last date for filing of return

for the AY is 30.09.2010, in view of the statutory audit conducted u/s

44AB. Accordingly, Return of Income for AY 2010-11 was

electronically filed on 24.09.2010 vide Acknowledgement No.

158626800240910. The ld. Departmental Representative pointed out

that the Return of Income was filed belatedly on 24.09.2010 instead of

04.08.2010, since ours is 44AB case and last date is 30.09.2010. The

Assessee is an individual and the turnover of Assessee in 80 IB itself is

RS.7,08,79,942/- 44AB, Form 3CB & 3CD dated 24.09.2010 filed.

:- 12 -: I.T.A.Nos.82 & 83/Mds/2015

Therefore, the last date for filing the Return of Income is 30.09.2010,

the Return of income is filed on 24.09.2010, which is well within the

time limit u/s 139(1). The Department counsel argued that the

Assessee did not claim deduction u/s 80 IB (10) under Chapter VI A in

the computation of total income. As revealed from the copy of

electronically filed E-Return in form No.ITR-4 downloaded from the

Departmental website www.incometaxindiaefiling.gov.in the

deduction under Chapter VIA of Rs.5,20,46,942/- was claimed.

10.1 The ld. Departmental Representative made similar submissions

as in the case of Smt. P. Bhavani.

10.2 Since the facts in this case is identical to the case of R. Bhavani,

this appeal is also dismissed on similar line.

11. In the result, both appeals of the assessee in ITA Nos. 82 &

83/Mds/2015 are dismissed.

Order pronounced on Friday, the 1st day of May, 2015, at Chennai.

Sd/- Sd/-

(वी. दग ु ा" राव) (चं पज ू ार ) V. DURGA RAO (CHANDRA POOJARI) या#यक सद य / JUDICIAL MEMBER लेखा सद य/ ACCOUNTANT MEMBER चे#नई/Chennai. $दनांक/Dated:01.05.2015. KV

आदे श क त'ल(प अ)े(षत/Copy to: 1. अपीलाथ /Appellant 2. यथ / Respondent 3. आयकर आय+ ु त (अपील)/CIT(A) 4. आयकर आय+ ु त/CIT 5. (वभागीय त न.ध/DR 6. गाड फाईल/GF.

:- 13 -: I.T.A.Nos.82 & 83/Mds/2015