M/s. G.S. Pharmbutor Pvt. Ltd., Meerut v. ACIT, New Delhi

ITA 4256/DEL/2011 | 2004-2005
Pronouncement Date: 25-11-2011 | Result: Allowed

Appeal Details

RSA Number 425620114 RSA 2011
Assessee PAN AAACG2925P
Bench Delhi
Appeal Number ITA 4256/DEL/2011
Duration Of Justice 2 month(s) 1 day(s)
Appellant M/s. G.S. Pharmbutor Pvt. Ltd., Meerut
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 25-11-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 25-11-2011
Date Of Final Hearing 25-11-2011
Next Hearing Date 25-11-2011
Assessment Year 2004-2005
Appeal Filed On 23-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH `C: NEW DELHI BEFORE SHRI G.D. AGRAWAL VICE PRESIDENT AND SHRI C.L. SETHI JUDICIAL MEMBER I.T. A. NOS.4255 & 4256/DEL/2011 ASSESSMENT YEARS : 2003-04 & 2004-05 M/S. G.S. PHARMBUTOR PVT. LTD. ASSTT. COMMISSIONE R OF INCOME-TAX 415 MODI TOWER VS. CIRCLE 12(1) NEW DELHI. 98 NEHRU PLACE NEW DELHI. PAN: AAACG2925P (APPELLANT) (RESPONDENT ) APPELLANT BY : SHRI SALIL KAPOOR ADVOCATE & SHRI P.S. KASHYAP CA. RESPONDENT BY : SHRI SALIL MISHRA SR. DR. O R D E R PER BENCH: THESE TWO APPEALS FILED BY THE ASSESSEE ARE DIREC TED AGAINST TWO SEPARATE ORDERS BOTH DATED 26.08.2011 PASSED BY TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IN THE MATTER OF AN ASSESSM ENT MADE UNDER SEC. 143(3)/147 OF THE INCOME-TAX ACT 1961 (THE ACT) FO R THE ASSESSMENT YEARS 2003-04 AND 2004-05 RESPECTIVELY. 2. THE MAIN COMMON AND IDENTICAL GROUND RAISED IN B OTH THE APPEALS IS AGAINST THE LEARNED CIT(A)S ORDER IN HOLDING THAT THE ASSESSING OFFICER WAS 2 JUSTIFIED IN DISALLOWING THE ASSESSEES CLAIM OF DE DUCTION UNDER SEC. 80IB FOR THE REASON THAT THE ASSESSEE HAD FAILED TO FURNISH THE AUDIT REPORT IN FORM 10CCB ALONG WITH THE RETURN OF INCOME FILED BY THE ASSESSEE. 3. IN THE ASSESSMENT YEAR 2003-04 THE ASSESSEE FIL ED ITS RETURN OF INCOME ORIGINALLY ON 2.12.2003 DECLARING TOTAL INC OME AT RS.1 05 70 393/-. THEREAFTER THE ASSESSMENT WAS COMPLETED UNDER SEC. 143(3) DETERMINING TOTAL INCOME AT RS.1 07 70 393/- VIDE ORDER DATED 2 4.10.2005. THEREAFTER THE ASSESSEES CASE WAS REOPENED UNDER SEC. 147 OF THE ACT BY ISSUING NOTICE UNDER SEC.148 DATED 10.12.2008 FOR THE REASON THAT THE ASSESSEE WAS NOT ENTITLED TO DEDUCTION CLAIMED UNDER SEC. 80IB AS TH E ASSESSEE HAD NOT FURNISHED THE AUDIT REPORT IN FORM NO.10CCB ALONG W ITH THE RETURN OF INCOME FILED ORIGINALLY ON 2.12.2003. IN THE REASS ESSMENT MADE UNDER SEC. 143(3)/147 OF THE ACT DATED 31.12.2010 THE AO DISA LLOWED THE ASSESSEES CLAIM OF RS.45 30 168/- UNDER SEC. 80-IB BY OBSERVI NG THAT THE PRIMARY CONDITION TO OBTAIN AUDIT REPORT AS PRESCRIBED AND ALSO TO FURNISH THE SAME ALONG WITH THE RETURN OF INCOME HAS NOT BEEN COMPL IED WITH BY THE ASSESSEE. THIS ACTION OF THE ASSESSING OFFICER HAS BEEN CONFI RMED BY THE LEARNED CIT(A) BY OBSERVING THAT THE PROVISION OF SEC. 80-I B CLEARLY PROVIDES THAT IT WAS MANDATORY FOR THE ASSESSEE TO FURNISH THE PRESC RIBED AUDIT REPORT ALONG WITH THE RETURN OF INCOME AND THE FAILURE OF THE A SSESSEE TO FURNISH THE AUDIT 3 REPORT ALONG WITH THE RETURN OF INCOME CANNOT BE C ONSIDERED TO BE A CURABLE DEFECT SO THAT IT PERMITS THE ASSESSEE TO FURNISH T HE REPORT DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE ASSESSING OFFI CER. 4. IN THE ASSESSMENT YEAR 2004-05 THE ASSESSEE FUR NISHED ORIGINAL RETURN OF INCOME ON 29.10.2004 DECLARING TOTAL INCO ME AT RS.1 89 87 741/-. THEREAFTER THE ASSESSMENT WAS COMPLETED UNDER SEC. 143(3) AT INCOME OF RS.1 89 87 741/- VIDE ORDER DATED 10.03.2007. THER EAFTER THE ASSESSING OFFICER REOPENED THE ASSESSMENT UNDER SEC. 147 OF T HE ACT AND ISSUED A NOTICE UNDER SEC. 148 OF THE ACT ON 27.03.2009 BY G IVING A REASON THAT THE ASSESSEE WAS NOT ENTITLED TO A DEDUCTION CLAIMED UN DER SEC. 80-IB FOR THE REASON THAT THE ASSESSEE HAD NOT ENCLOSED THE AUDIT REPORT IN PRESCRIBED FORM 10CCB ALONG WITH THE ORIGINAL RETURN OF INCOME FILE D BY IT. FOR THE SIMILAR REASON AS GIVEN IN ASSESSMENT YEAR 2003-04 THE ASS ESSEES CLAIM OF DEDUCTION OF RS.81 37 603/- UNDER SEC. 80-IB WAS NO T ALLOWED IN THE REASSESSMENT MADE UNDER SEC. 143(3)/147 OF THE ACT WHICH HAS BEEN UPHELD BY THE LEARNED CIT(A) BY GIVING THE IDENTICAL REASO NS AS GIVEN IN THE ASSESSMENT YEAR 2003-04. 5. HENCE THE ASSESSEE IS IN APPEAL BEFORE US IN BO TH THE ASSESSMENT YEARS. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. 4 7. IT IS NOT IN DISPUTE THAT IN THE ORIGINAL ASSESS MENT MADE UNDER SEC. 143(3) OF THE ACT DATED 24.10.2005 FOR THE ASSESSME NT YEAR 2003-04 AND ASSESSMENT ORDER UNDER SEC. 143(3) DATED 10.03.2007 FOR THE ASSESSMENT YEAR 2004-05 THE ASSESSEES CLAIM OF DEDUCTION UND ER SEC. 80-IB WAS ALLOWED BY THE ASSESSING OFFICER. THEREAFTER THE A O REOPENED THE ASSESSMENT UNDER SEC. 147 OF THE ACT FOR THE REASON THAT AUDIT REPORT IN FORM 10CCB WAS NOT FILED ALONG WITH THE RETURN OF INCOME . IN RESPONSE TO THE NOTICE ISSUED UNDER SEC. 148 OF THE ACT THE ASSESS EE SUBMITTED BEFORE THE ASSESSING OFFICER THAT ORIGINAL RETURN OF INCOME AL READY FILED ON 2.12.2003 AND 29.10.2004 FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 RESPECTIVELY MAY BE TREATED AS A RETURN FILED UNDER SEC. 148 OF THE ACT. THEREAFTER THE ASSESSEE VIDE LETTER DATED 12.01.2009 AND 17.08.200 9 IN THE REASSESSMENT PROCEEDINGS FOR THE ASSESSMENT YEARS 2003-04 AND 20 04-05 RESPECTIVELY SUBMITTED AMONGST OTHERS BEFORE THE AO THAT FILIN G OF AUDIT REPORT ALONG WITH THE RETURN OF INCOME IS NOT MANDATORY BUT IS T O BE TREATED AS DIRECTORY AND FILING OF THE AUDIT REPORT DURING THE ASSESSMEN T PROCEEDINGS WILL BE SUFFICIENT TO COMPLY THE PROVISIONS OF LAW CONTAINE D IN THAT BEHALF AND ACCORDINGLY A COPY OF FORM 10CCB DATED 20.04.2003 AND 10.10.2004 OBTAINED FROM AGGARWAL SARRAF & CO CHARTERED ACCOU NTANT PERTAINING TO THE ASSESSMENT YEARS 2003-04 AND 2004-05 WAS FURNI SHED. IT IS THUS CLEAR 5 THAT THE AUDIT REPORT IN FORM 10CCB WAS AVAILABLE W ITH THE AO AT THE TIME WHEN THE ASSESSMENT UNDER SEC. 147 OF THE ACT WAS M ADE. THE CLAIM OF THE ASSESSEE U/S 80-IB HAS BEEN DISALLOWED IN THE REASS ESSMENT MADE UNDER SEC. 147 OF THE ACT THOUGH THE SAME WAS ALLOWED IN THE O RIGINAL ASSESSMENT MADE UNDER SEC. 143(3) OF THE ACT. IN THE CASE OF CIT V S. GUJARAT OIL & ALLIED INDUSTRIES 201 ITR 325 (GUJ.) THE HONBLE GUJARAT HIGH COURT HAS TAKEN A VIEW THAT THE REQUIREMENT OF FILING OF AN AUDIT REP ORT UNDER SEC. 80J(6A) WHICH IS SIMILAR TO THAT OF SEC. 80-IA(7) IS TO BE TAKEN AS A DIRECTORY IN NATURE AND IN CASE THE AUDIT REPORT IS SUBMITTED AT ANY TIME BEFORE FRAMING OF THE ASSESSMENT THERE WILL BE SUBSTANTIAL COMPLI ANCE WITH THE PROVISIONS OF SEC. 80J(6A) OF THE ACT. AN IDENTICAL VIEW HAS ALSO BEEN TAKEN BY THE HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. A. N. ARUNACHALAM 208 ITR 481 (MAD.). THERE ARE OTHER DECISIONS OF OTHER COURTS TAKING THE SAME VIEW AS UNDER:- (I) CIT VS. SHIVANAND ELECTRICALS (1994) 209 ITR 63 (BO M.). (II) ZENITH PROCESSING MILLS V. CIT (1996) 219 ITR 721 ( GUJ.). (III) CIT VS. JAYANT PATEL (2001) 248 ITR 199 (MAD.). (IV) CIT VS. MAHALAXMI RICE FACTORY (2007) 294 ITR 631 ( P&H). REFERRING TO THE AFORESAID DECISIONS THE HONBLE J URISDICTIONAL DELHI HIGH COURT IN THE CASE OF CIT VS. CONTIMETERS ELECTRICAL S PVT. LTD. (2009) 317 ITR 249 (DELHI) HAS ALSO TAKEN A VIEW THAT REQUIREM ENT OF FILING THE AUDIT 6 REPORT ALONG WITH RETURN IS NOT MANDATORY BUT DIREC TORY AND THAT IF THE AUDIT REPORT IS FILED AT ANY TIME BEFORE FRAMING OF THE A SSESSMENT THE REQUIREMENT OF SEC. 80-IA(7) WOULD BE MET. 8. IN THE PRESENT CASE THE AUDIT REPORT IN FORM NO .10CCB WAS FILED BY THE ASSESSEE DURING THE REASSESSMENT PROCEEDINGS CO MPLETED UNDER SEC. 147 OF THE ACT DURING THE COURSE OF WHICH THE AO DISA LLOWED THE ASSESSEES CLAIM OF DEDUCTION UNDER SEC. 80-IB ON THE GROUND T HAT THE AUDIT REPORT WAS NOT FILED ALONG WITH THE RETURN OF INCOME. THE EXP RESSION ASSESSMENT INCLUDES RE-ASSESSMENT AS DEFINED IN SUB-SEC.(8) OF SEC. 2 OF THE ACT. IN THE PRESENT CASE THE RELEVANT ASSESSMENT ORDER IS THE ASSESSMENT MADE UNDER SEC. 147 OF THE ACT DURING THE COURSE OF WHICH PROC EEDINGS THE ASSESSEE HAS FURNISHED THE AUDIT REPORT IN PRESCRIBED FORM. WE THEREFORE HOLD THAT THE REQUIREMENT OF FILING THE AUDIT REPORT FOR CLAIMING THE DEDUCTION UNDER SEC. 80-IB HAS BEEN SATISFIED BY THE ASSESSEE AND THERE FORE ON THIS REASON ALONE THE ASSESSEES CLAIM OF DEDUCTION UNDER SEC. 80-IB IS NOT DISALLOWABLE. WE THEREFORE DELETE THE DISALLOWANCE OF ASSESSEES CL AIM MADE UNDER SEC. 80-IB OF THE ACT AS THE ASSESSEE HAS SATISFIED THE CONDIT ION OF FILING AUDIT REPORT DURING ASSESSMENT PROCEEDINGS INITIATED UNDER SEC. 147 OF THE ACT. THE ASSESSING OFFICER SHALL MODIFY THE ASSESSMENT ORDER ACCORDINGLY. 7 9. IN THE COURSE OF HEARING OF THESE APPEALS THE A SSESSEE HAS ALSO CHALLENGED THE VALIDITY OF PROCEEDINGS UNDER SEC. 1 47 OF THE ACT AS WELL AS THE ASSESSMENT MADE UNDER SEC. 147 OF THE ACT ON VA RIOUS GROUNDS. SINCE THE MAIN ISSUE OF DISALLOWANCE OF ASSESSEES CLAIM OF DEDUCTION UNDER SEC. 80-IB HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AS ABOVE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE HAVE BECOME REDUNDANT AND NEED NO ADJUDICATION AT THIS STAGE. 10. IN THE RESULT THE APPEALS FILED BY THE ASSESSE E ARE ALLOWED IN THE MANNER AS INDICATED ABOVE. 11. THIS DECISION IS PRONOUNCED IN THE OPEN COURT O N 25 TH NOVEMBER 2011 IMMEDIATELY AFTER THE HEARING WAS OVER. SD/- SD/- (G.D. AGRAWAL) (C.L. SETHI) VICE PRESIDENT JUDICIAL MEMBER DATED: 25 TH NOVEMBER 2011 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT. 2. RESPONDENT. 3. CIT 4. CIT(A) 5. DR BY ORDER *MG DEPUTY REGISTRAR ITAT.