TaxTMI 
TaxTMI 
2015 (5) TMI 638
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....at the assessee is a proprietor of M/s. Shayam Developers and is engaged in the business of development of real estate and construction of building. The return of income for the assessment year 2008-09 was filed through electronic filing on 30/09/2008 which was the due date of filing of return of income u/s. 139(1). In the return the assessee claimed deduction u/s. 80IB(10) at Rs. 1,02,38,221/- and declared total income of Rs. 69,89,936/-. The assessee verified the Form ITR-V and physically filed the same on 16/10/2008. The AO has denied the claim of deduction u/s. 80IB(10) on the ground that the assessee has not complied with the provisions of Section 80AC of the Act because the physical return was not filed within the time period as per the CBDT notification No.SO1281(E) dated 27/07/2007. The income returned duly verified should have been physically submitted within a period of 15 days from the date of filing of e-Return, but the assessee submitted the same only on 16/10/2008 which is beyond the time period permitted as per the scheme of the e-Return filing. The assessee challenged the action of the AO before the CIT(A) and contended that when the assessee filed its return of inc....
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....submitted that the Tribunal has held that the claim of the assessee u/s. 80IC cannot be denied simply for the reason that the return of the income was not filed within the due date as prescribed u/s. 139(1) where the assessee has submitted necessary documents with the department before due date of filing of return and default of the assessee was only technical default. The ld. AR has submitted that in the case of the assessee the default of the assessee of one day delay in furnishing physical return is only technical default when the assessee has already complied with the provisions of section 139(1) by filing e-Return within due date of filing the return. He has also relied upon the decision of this Tribunal dated 31/01/2014 in the case of ITO vs. M/s. Yash Developers in ITA No.3644/Mum/2012 for assessment year 2008-09. 2.2 The ld. AR has relied upon the decision of this Tribunal in case of Emerson Network Power India Pvt. Ltd. vs. ACIT (112 TTJ 67) and submitted that the Tribunal has held that the AO was obliged to give due relief to the assessee or entertain his claim if admissible as per law eventhough the assessee has not filed revised return. Alternatively, the ld. AR has su....
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....efore the due date specified under section 139(1) is a mandatory condition for availing the deduction interalia under section 80IB as required under section 80AC of the Act. For ready reference we quote section 80AC as under :- "80AC. Deduction not to be allowed unless return furnished.- Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC or section 80-ID or section 80-IE, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139." 3.1 The language of section 80AC is clear and unambiguous that any deduction admissible, interalia, under section 80IB, shall not be allowed to the assessee unless he furnishes a return of his income on or before the due date specified under s/s.(1) of section 139 of the Income tax Act. The Special Bench of the Tribunal in the case of M/s. Saffire Garments vs. ITO (supra), has considered an identical issue....
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....ssessment u/s 144. In our considered opinion, this is also one of the consequences of not filing return of income by the assessee within the due date. One may raise this argument that interest u/s 234A is payable only if the assessee has not paid his advance tax and, therefore, this is interest for the failure of the assessee to pay advance tax as per the requirement of the Act and not for the delay in filing return of income. But in our considered opinion, this is not so. For the failure of the assessee to pay advance tax as per the requirement o the Act, interest is chargeable u/s 234B of the Income tax Act, 1961 if such advance tax paid by the assessee is less than 90% of the assessed tax. Such interest u/s 234B is payable from the first day of April of the relevant assessment year till the date of determination of the total income either u/s 143(1) or u/s 143(3) of the Act. The interest u/s 234A is payable from a date after the due date for filing the return of income and is payable up to the date on which the return of income is furnished by the assessee and if no return is furnished by the assessee at all then only, the interest is payable till the date of completion of the a....
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....rnishing of return of income within time allowed u/s 139(4) will dilute the provisions contained in the proviso to Section 10A(1A) of the Income tax Act, 1961. 13. Regarding various submissions of the Ld. A.R. and various judgements on which reliance has been placed by the Ld. A.R., we would like to observe that these submissions do not have merit in view of our above discussion. The first submission is this that the provision of Section 139(4) are considered as proviso to Section 139(1) and if the assessee has filed return of income u/s 139(4), the same should be considered as return filed u/s 139(1) of the Income tax Act, 1961. On this aspect, we have already seen the judgement of Hon'ble Apex Court cited by the Ld. D.R. having been rendered in the case of Prakash Nath Khanna (supra), where it was held by Hon'ble Apex Court that the filing of return of income within the time allowed u/s 139(4) of the Income tax Act, 1961 cannot dilute the infraction in not furnishing return in due time as prescribed u/s 139(1) of the Income tax Act, 1961. In view of this judgement of Hon'ble Apex Court in this regard, the judgments cited by the Ld. A.R. i.e. CIT Vs Jagariti Agrawal (supra) and T....
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....ied under the e-Return scheme 2007 and verified in the manner prescribed thereunder. As per the scheme the e- Return filed by the assessee itself is not considered as return of income filed but the assessee is required to submit the duly verified Form ITR-V to the AO not later than 15 days from the issue of provisional receipt for the electronic data received by e-Return administrator as required by sub-para 2 and 3 of para - 3 of the scheme as under :- "(2) The eligible person shall submit the duly verified Form ITR-V to the Assessing Officer not later than fifteen days from the issue of the provisional receipt for the electronic data received by the e-Return Administrator and the date on which such receipt is issued shall be deemed to be the date of filing the return. (3) Where Form ITR-V is not submitted within the time prescribed in sub-paragraph (2), the date of submitting Form ITR-V shall be deemed to be the date of filing the return." 3.4 Thus, it is clear that under the scheme the return of income is considered to be filed only when the assessee submits the duly verified Form ITR-V to the AO. Under this scheme a further time is given to the assessee not exceeding 15 days....
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....the Act under section 139(1), rather the Rules and Scheme is in furtherance of the statutes and provisions and provide the procedure to make the main provision workable. Therefore, the Rule 12 of the I.T. Rule and scheme under which the electronic return filed by the assessee do not in any manner override the main provisions under section 139(1). There is no quarrel on the point that the Rules cannot override or whittle down the provisions of the Act. However, in the case in hand, the question of overriding of section 139(1) by the Rule-12 of the I.T. Rules or e- Return scheme, 2007 does not arise as discussed above. 3.5 There is no dispute as regards the date of filing e-Return and date of filing the Form ITR-V. Therefore, the return of income of the assessee shall be deemed to be filed on 16/10/2008 when the Form ITR-V duly verified is submitted by the assessee . We have already taken a view that the conditions prescribed under section 80AC are mandatory for availing the deduction under section 80IB. When the assessee was found to have not furnished his return of income before due date specified under section 139(1) then the deduction under section 80-IB shall not be allowed to ....
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....he law. The requirement of law thus is of filing a physical return, which is not dispensed with, but only relaxed under the condition of an assessee choosing to file an e-return, perhaps with a view to encourage the same. The assessee in such a case can, instead of filing the physical return along with or by the due date specified u/s.139(1), do so within a period of 15 days, and where so done, the same would be deemed to have been filed on the date of filing the e-return. Where not so, the date of filing the return would be the actual date of filing the physical return. Where then is the controversy? A physical return filed within 15 days of an e-filing would, by legal fiction, be deemed to have been filed on the date of the former. The same is only per the scheme itself. Likewise, it being considered as filed on the date of furnishing the physical return is again per the said scheme. That is, the relaxation extends only to the deeming of the date of the filing the return and not to its form and, further, does not extend beyond 15 days. It would thus be only correct to say that the benefit of the scheme extends to the physical filing of the return within an extended period of 15 d....