| Question And Answer | |
|---|---|
| Subject: | Applicability of section 115JC of Income Tax Act |
| Category: | Income-Tax |
| Querist: | Ruchi Bhansali |
| Answered by: | Dr .K. Shivaram Senior Advocate |
| Tags: | CBDT, Revision of assessment, section 115JC |
| Date: | March 16, 2022 |
Assessee is a partnership firm engaged in the business of developing of housing project eligible for deduction u/s 80IB(10) of the Act. They have developed the project which is commenced as per Commencement Certificate received in April,2007 and the project is completed as per completion certificate dated 31.03.2012. In the A.Y 2013-14, assessee earned net profit of Rs. 2.5 crores. As per the advice of the Tax Consultant, assessee firm has paid the AMT u/s 115JC on this profit as same is eligible for deduction u/s 80IB(10) of the Act.
However, while uploading the return could not upload Form 10CCB for this assessment year due to problem in the software. However, submitted hardcopy of the said Form before the AO. The return was processed u/s 143(1) of the Act and the deduction u/s 80IB(10) was disallowed.
Aggrieved by this order, assessee has filed appeal before CIT(A) and the claim of the deduction u/s 80IB(10) was allowed.
While filing an appeal before CIT(A), the assessee has failed to raise the ground regarding inapplicability of provisions of section 115JC as the said provision is applicable from w.e.f 01.04.2013 prospectively, and to the projects claiming deduction which have come or approved on or after 01.04.2013.
As the profit of the assessee firm in the A.Y 2013-14 is in respect of the Housing Project approved and completed before 31.03.2012.
Kindly guide in respect of following:
a. Whether the assessee should file an appeal before the ITAT on the ground that assessee failed to raise the ground of appeal relation to applicability of section 115JC of the Act and hence the issue could not be adjudicated by CIT(A)?
or
b. Whether application u/s 264 should be filed as the assessee firm while filing the return of income has paid the AMT u/s 115JC mistakenly?
In both these options, there is a delay in filing which will be more than 2 years.
For the relevant year the appeal was decided by the CIT(A) hence the revision application may not be entertained by the Commissioner u/s 264 of the Act . If the department has filed an appeal against the order of the CIT(A) , allowing the deduction u/s 80IB(10) of the Act , the assessee can file cross objection and raise the issue of applicability of section 115JC of the Act .
It may be desirable for the assessee to make an application before the CBDT . The CBDT has the power to grant the relief . In case the CBDT rejects the application of the assessee , the assessee can file writ before the High Court .