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07-11-2019, Beach , Co, Section 10B, 139(1), 80HHC, Tribunal Chennai

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1 week 4 days ago #11351 by amit
Section - 10B, 139(1), 80HHC, 10A, 14A, 115JB
Order Date - 07-11-2019
Favouring - Partly allowed for statistical purposes
Court - Tribunal Chennai
Appellant - ACIT
Respondent - Beach Mineral Co. Pvt Ltd.
Justice - GEORGE MATHAN JM & S.JAYARAMAN AM
Citation - 1119Taxpundit86
Appeal No. - I.T.A.Nos.2113 & 2114/Chny/2012
Asstt. Year - 2008-09 & 2008-09

Order

PER : GEORGE MATHAN

I.T.A.No.2113/Chny/2012 is an appeal filed by the Revenue against the order of the Commissioner of Income-tax(Appeals)-IX, Chennai in ITA No.50/11-12 dated 08.08.2012 for assessment year 2008-09, and I.T.A.No.2114/Chny/2012 is an appeal filed by the Revenue against the order of the Commissioner of Incometax(Appeals)-III, Chennai in ITA No.56/11-12/A-III dated 21.08.2012 for assessment year 2008-09 against the partial cancellation of penalty levied u/s.271(1)(c) of the Income Tax Act, 1961 (in short “the Act”). I.T.A.No.1904 /Chny/2012 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals)-III, Chennai in ITA No.56/11-12/A-III dated 21.08.2012 for assessment year 2008-09 against the confirmation of penalty levied u/s.271(1)(c) of the Act. I.T.A.No.2003/Chny/2014 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals) (A/C )-II, Chennai in ITA No.341/13-14 dated 28.03.2014 for assessment year 2009-10 against the confirmation of action of the Assessing Officer in denying the exempt on claimed by the assessee u/s.10B of the Act and in respect of disallowance u/s.14A of the Act. I.T.A.No.2002 /Chny/2012 is an appeal filed by the assessee against the order of the Commissioner of Income-tax(Appeals)( A/C)-II, Chennai in ITA No.342/13-14 dated 28.03.2014 for assessment year 2009-10 against the confirmation of penalty levied u/s.271(1)(c) of the Act.

2. Mr.S.Sridhar represented on behalf of the Assessee and Mr.AR.V.Sreenivasan represented on behalf of the Revenue.

3. Since the issues raised in all these appeals of assessee as well as Revenue are interconnected, these appeals are heard together and dispose of by this common order.

4. At the time of hearing, it was submitted by ld.AR that for the assessment years 2008-09 & 2009-10, the main issue is related to denial of exemption u/s.10B of the Act on account of belated filing of the return of income for the relevant assessment years. It was submitted that for assessment year 2008-09, the return had been filed belatedly on 07.01.2009, on which date the return was filed with the delay of 4 months It was submitted that for assessment year 2009- 10, the return had been filed belatedly on 20.11.2009, on which date the return was filed with the delay of 50 days. It was a submission that the denial of exemption u/s.10B of the Act had been made on account of the 4th proviso to section 10B of the Act, which required that the assessee should file its return of income within the time prescribed u/s.139(1) of the Act. The assessee has submitted that he had filed an application u/s.119(2)(b) of the Act before Central Board of Direct Taxed(CBDT) seeking to condone the delay in filing of returns belatedly and allow deduction u/s.10B of the Act. It was submitted that the application has been rejected by the CBDT vide order dated 09.10.2015 and the same has been challenged before the Hon’ble Jurisdictional High Court in Writ Petition No.38208/2015 & 39209/2015 for assessment year 2008-09 & 2009-10. The learned Counsel submitted that the writ petition was pending disposal on account the non-filing of the counter-affidavit by the Revenue, which was filed on 25.10.2019 and the WP was posted for hearing on 19.11.2019. It was a prayer that the appeals may be adjourned to await the decision of the Hon’ble jurisdictional High Court in the W.Ps.

5. The appeals pertaining to the years 2012 to 2014, are very old matters and there has been specific direction for the disposal of old matters. This being so, the adjournment sought by the assessee is rejected and the appeals disposed of on merits.

6. It was submitted by ld.DR that proviso to Section 10B of the Act, which required the filing of the return of income within the time prescribed u/s.139(1) of the Act, was not procedural, but was mandatory and on account of violation of the specific proviso, the denial of deduction u/s.10B of the Act had been rightly made. It was submitted that this issue was related to Ground Nos.2.1. to 2.21 in the appeal of Revenue for assessment year 2008-09 in ITANo.2113/Chny/2012. In regard to Grounds Nos.3.1 to 3.5 of Revenue’s appeal for assessment year 2008-09, it was submitted that the issue was against the action of the ld.CIT(A) in directing the Assessing Officer to alter the nomenclature of the addition from suppression in export turnover to increase in value of Closing Stock. In regard to
Grounds Nos.4.1 to 4.2 of Revenue’s appeal for assessment year 2008- 09, it was submitted that the issue was against the action of the ld.CIT(A) in directing the Assessing Officer to exclude freight, insurance etc. from Export Turnover as well as Total Turnover while computing deduction u/s.10B of the Act The ld.DR vehemently supported the order of the Assessing Officer. It was submitted that the order of ld.CIT(A) was liable to be reversed.

7. In reply, ld.AR submitted that the issue of deduction u/s.10B of the Act being pending before the Hon’ble Jurisdictional High Court, the issue may be restored to the file of Assessing Officer for re-adjudication after the receipt of the order of Hon’ble Jurisdictional High Court in respect to W.Ps filed by the assessee.

7.1 In respect of suppression of turnover, it was submitted by ld.AR that he had no objection, if the issue may be restored to the file of Assessing Officer for verification as to whether the said alleged turnover had been disclosed in the subsequent year. It was also a submission that in the event, assessee is granted the benefit of

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