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TaxTMI 
TaxTMI 
TaxTMI 
2014 (5) TMI 70
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....the assessee is in appeal before us by taking the following grounds :- "1. That order made u/s 263 of the Act dated 6.02.2012 is without satisfying the statutory pre-conditions provided under section 263 of the Act i.e. order of assessment under section 143(3) of the Act dated 30.12.2008 was neither erroneous and, nor prejudicial to the interest of revenue, thus the same was without jurisdiction and, deserves to be quashed as such. 1.1 That finding of the learned Commissioner of Income Tax that the learned Assessing Officer did not examine whether deduction u/s 80IB(IO) of the Act can be claimed in the belated return and as such, Assessing Officer did not apply his mind and allowed deduction u/s 80IB(l0) without considering the provision of section 80AC of the Act is not based on correct appreciation of facts and evidence on record and therefore, the finding that order is erroneous is misconceived, misplaced and untenable. 1.2 That learned Commissioner of Income Tax has failed to appreciate that claim of deduction u/s 80IB was specifically examined in the course of assessment proceedings and specifically allowed in the order of assessment a....
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.... the said case too it was held that, requirement to furnish return of income within the due date for claim of deduction is directory and not mandatory and as such, disallowance made is invalid and contrary to law. 2.6 That finding that "assessee could have filed e-return without payment of self assessment tax" and therefore disallowance is warranted u/s 80AC of the Act is also misconceived, misplaced and unsustainable. 2.7 That the learned Commissioner of Income Tax has failed to appreciate that the return filed by the assessee on 02.04.2009 could not be disregarded to be as not filed u/s 139(1) of the Income Tax Act on the facts and in the circumstances of the case. 2.8 Without prejudice that the aforesaid provisions of section 80AC were inapplicable in the case of a company and that the Assessing Officer was satisfied that the assessee could not furnished the return of income on or before 30.09.2008 on account of genuine difficulty under this circumstances it had furnished return of income on 02.04.2009 and not on or before 30.10.2008. 2.9 That the learned Commissioner of Income Tax also failed to appreciate that it is not t....
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....o the queries raised by the Assessing Officer submitted along with the documents. This reply is dated 07.12.2009. It is clear from Point No.10 of the reply that the assessee has submitted working of profit along with relevant back-up papers in respect of deduction claimed u/s 80IB in respect of the project Horizon Project along with approvals etc. which were enclosed. Thus, the Assessing Officer has examined the claim of the assessee during the proceedings u/s 143(3) of the Act. He further submitted that when the Assessing Officer has taken a view then the revisionary authority has no jurisdiction to initiate proceedings u/s 263 of the Act, as held by Hon'ble Karnataka High Court in the case of Fatima Bai vs. ITO reported in [2009] 32 DTR 243 (Kar). Ld. AR also relied on the decision of Hon'ble Delhi High Court in the case of Director of Income-tax vs. Jyoti Foundation reported in (2013) 357 ITR 388 (Delhi) wherein Hon'ble jurisdictional High Court has held that revisionary power u/s 263 of the Income-tax Act, 1961 is confirmed by the Act on the CIT/DIT when an order passed by lower authorities is erroneous and prejudicial to the interest of revenue. Orders which are passed without....
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....rs in section 80AC be read as "may". Therefore, filing the return as per the provisions of section 139(1) of the Act was only to be taken as directory in nature. Such view has been taken by various Benches of ITAT and has been reaffirmed by Hon'ble jurisdictional High Court in the case of CIT vs. Contimeters Electricals P. Ltd., cited supra. 4. On the other hand, ld. DR submitted that there is expressed provision in the law where the deduction is not to be allowed unless the return furnished on or before the due date specified under sub-section (1) of section 139 of the Act. Therefore, the order of the Assessing Officer was erroneous and prejudicial to the interest of revenue and the CIT was having all the powers to revise the order of the Assessing Officer. He further submitted that the powers of Commissioner to revise the order of the Assessing Officer are plenary. In this case, the order of the Assessing Officer was not only erroneous but also prejudicial to the interest of revenue, therefore, two ingredients were in coexistence, therefore, the CIT was justified in invoking the revisional jurisdiction. He further submitted that once the expressed provisions are available in the....
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.... to loss of tax. The scheme of the Act is to levy and collect tax in accordance with the provisions of the Act and this task is entrusted to the Revenue. If due to an erroneous order of the Income tax Officer, the Revenue is losing tax lawfully payable by a person, it will certainly be prejudicial to the interests of the Revenue. The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated as prejudicial to the interests of the Revenue, for example, when an Income tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue, or where two views are possible and the Income tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue, unless the view taken by the Income tax Officer is unsustainable in law." It is also well settled by Hon'ble Supreme Court that where two views are possible and the Assessing Officer has taken one view with which the Commissioner does not agree,....
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.... 2001, unless the assessee furnishes in the prescribed form, along with the return of income, the report of an accountant, as defined in the Explanation below sub-section (2) of section 288, certifying that the deduction has been correctly claimed in accordance with the provisions of this section." In both these provisions, the deduction was held to be not admissible unless the assessee furnishes the prescribed form along with return of income or the return of income on or before due date of filing return. The ITAT, Delhi Bench in the case of Hansa Dalakoti vs. ACIT in ITA No.3352/Del/2012 dated 25.01.2012 held as under:- "The language of section 80AC and section 10B(1) is pari materia. Both of these sections debar the assessee from claiming deduction under section BO-IC and exemption under section 10B, in a case where return of income is not filed by the assessee within the prescribed statutory time under section 139(1). The provisions of section 10B(1) were considered by the co-ordinate Bench of the Tribunal in Asstt. CIT v. Dhir Global Industries (P.) Ltd. [2011] 43 SOT 640 / [2010] 8 taxmann.com 208 (Delhi). According to the facts of the said case, there was a de....
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....triction on it too has to be construed so as to advance the objective of the provision and not to frustrate it.' (2) The Hon'ble jurisdictional High Court in the case of Uddeereswara Mining Industries v. CIT reported in (1993) 204 ITR 550 (Kar) had ruled that - "5. There can be no dispute about the proposition that the term used in a fiscal legislation describing the subjects of taxation are to be normally understood in their popular sense unless the law itself indicates a different approach. Scientific and technical meanings are to be attributed to those words only when the context requires such meanings to be given. The normal rule is to give that meaning which to persons engaged in dealing with that subject matter attribute to that term, describing the subject. It is also true that a beneficial provision in a fiscal stature should be liberally construed to advance the purpose behind the Legislation........." (3) The Hon'ble 'B' Bench of the Delhi Tribunal in the case of ACIT v. Dhir Global Industrial (P) Ltd reported in (2011) 43 SOT 640 recorded its finding which is extracted as below: &n....
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...., the Hon'ble Bench had observed thus - "Proviso fourth to s. 10B(1) which prohibits deduction under this section if the return is not furnished on or before the due date specified under s. 139(1) is directory and not mandatory and, therefore, relief can be granted by the appellate authority in case, there was genuine and valid reason for the marginal delay in filing of return" (4) An identical issue to that of the present one was considered by the Hon'ble 'B' Bench of Hyderabad Tribunal in the case of ITO v. Shri S Venkataiah in ITA No.984/Hyd/2011 dated 31.5.2012 for the assessment year 2008-09. The Revenue had, among others, approached the Hon'ble Tribunal with the following relevant grounds: "1. The order of the CIT(A).......................................... 2. The CIT (A) erred in allowing the additional evidence without giving a reasonable opportunity to the AO to examine the evidence which is in contravention to the rule 46A(3) of IT Rules 1962; 3. The CIT (A) ought to have appreciated that the AO had rightly ....
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....elated filing of return of income. Thus, there was a delay of 74 days in filing the return of income which is beyond the control of assessee. This was also confirmed by the statutory auditor vide his letter dated 20.3.2011. Being so, in our opinion there is a reasonable cause for filing the return of income belatedly and this is beyond the control of the assessee. When the substantial question of justice involved, technicalities should be ignored. Further, we are supported by the order of the Tribunal in ITA Nos. 1231 & 1199/Hyd/2010 in the case of DCIT v. M/s. Vega Conveyors & Automation Limited order dated 31st December 2010 wherein in para 5 of the order, the Tribunal held as follows: '5. We have considered the rival submissions and perused the orders of the lower authorities, and other material available on record, including the case-law relied upon by the parties. It is an undisputed fact that the assessee in the present case has filed the audit report in Form 10CCB during the course of re-assessment proceedings. The issue that arises for consideration is whether the assessing officer was justified in disallowing the assessee's claim for d....
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.... such, we are inclined to dismiss the appeal filed by the Revenue as devoid of merit." 7. Considering the facts and circumstances of the issue as deliberated upon in the fore-going paragraphs and also in conformity with the rulings of the Hon'ble Supreme Court, the Hon'ble jurisdictional High Court and also the findings of the Hon'ble Benches of Delhi and Hyderabad Tribunals cited supra, we are of the considered view that s. 80AC of the Act which prohibits deduction u/s 80IB if the return is not furnished on or before the due date specified u/s 139(1) of the Act is only directory and not mandatory, provided there was reasonable cause for filing of return of income belatedly." The Hon'ble jurisdictional High Court in the case of CIT vs. Contimeters Electricals P. Ltd. (317 ITR 249 (Delhi)) in its order dated 2nd December, 2008 has held as under :- "The Commissioner issued a notice under section 263 of the Income-tax Act, 1961 stating that the assessee was not entitled to the deduction under section 80-IA as the assessee did not fulfil the condition laid down in section 80-IA(7). Therefore he held that assessment completed by the Assessing Officer was pre....