TaxTMI 
TaxTMI 
2016 (3) TMI 240
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....in allowing the deduction u/s 80IB (10) of Rs. 1,94,12,489/-, as the same is contrary to the provisions of section 80A(5), effective from 01.04.2003, which does not permit allowance of deduction unless the claim for deduction is made in the return of income." (iii) "On the facts and circumstances of case and in law, the Ld. CIT(A) erred in allowing the deduction u/s 80IB(10) as the same only means that deduction can be claimed just by filling revised return u/s 139(5) has already elapsed, in the course of assessment proceedings, which is not at all acceptable in the light of amended provisions of section 80A(5), vide Finance (No.2) Bill, 2009. 2. Rival contentions have been heard and record perused. The brief fact of the case is that assessee is a partnership firm engaged in the business of building housing project and doing real estate development business mainly at Kharghar, Navi Mumbai. The original return of income for A.Y. 2007-08 was filed on 18.10.2007 declaring total income from the housing project at Rs. 1,94,12,489/- whereas in assessment order Ld. AO has mentioned e-filed return of income with acknowledgement No.1094731181007 declaring total income at Nil. Af....
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....im thereunder, means there is no restriction about the revised return of income but there is a provision of law for claiming such deduction through „return of income‟ only. This provision of law does not limit the date of filing of return of income to be either as provided u/s.139(1) or 139(4) or 139(5) of the Income-tax Act. As such, there is no ambiguity regarding interpretation or understanding of this provision of law. The provision of section 80A(5) does not provide that „return of income‟ through which the deduction has to be claimed should be filed on or before the due date specified under these sections, it is worthwhile to mention that whenever legislature intends to provide a law with reference to the prescribed date of return of income before any specified date, it has clearly identified and mentioned in expressed word. Some examples are worthwhile to mention as under: - Section Deduction through return of income filed within specified date 80AC Return of income has to be filed prior to due date as per section 139(1) 54(2) Refers to date of furnishing return as per section 139 139(3) Carry forward of loss is permitted if su....
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.... interested and having right to comply are to be benefited. Such preposition is there in the case of Jayamal Jayantilal Thakur vs. Chief CIT (1998) 230 ITR 142, 151, 152 (Guj.). It is worthwhile to mention that in the case of DCIT vs. Lab India Instruments (P) Ltd., 93 ITD 120 Hon‟ble Pune ITAT has held as under: - "Further, Rival submissions of the parties have been considered carefully in the light of case law referred to and the material placed before us. The first question to be considered is whether the claim of assessee under section 80-O can be denied merely on the ground that such claim was raised by the assessee in the revised return which was filed after the prescribed time but before the completion of assessment. In our humble opinion, the answer to such question is in negative for the reasons given hereafter. It is the true and correct total income of every person which is assessable under section 4 of the Act. Consequently, the tax collector is rather duty bound to collect the legitimate tax due on such total income neither a penny less nor a penny more. The determination/ assessment of total income would depend on the relevant provisions of the Act irre....
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....terial and clear data must be contained in the record sufficient to enable the Income-tax Officer to consider whether the relief should be granted under section 84. In the absence of such material, no fault can be found with the Income-tax Officer for not making an order under section 84 favouring the assessee." Our view is further fortified by the judgment of Hon‟ble Supreme Court in the case of National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 wherein it has been held that entire assessment proceedings are open before the Tribunal and, therefore, assessee is entitled to raise additional ground of appeal to claim any deduction/ exemption provided no investigation into facts is required at appellate stage. It was further held that claim of assessee cannot be rejected merely on the ground that assessee himself had offered the receipts to tax in the return filed by him. If any income is not taxable under the Act, the assessee is entitled to claim the same by raising the additional ground of appeal before the appellate authorities. If the claim can be raised before the appellate authorities for the first time then, in our opinion, there is no question of reject....
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....tion under s. 80HHC in form 10CCAC was treated as procedural in nature. The mistake was treated as a technical breach and the AO was duty bound to ask it before denying claim as observed in the following cases - CIT vs. Gujarat Oil & Allied Industries (1993) 109 CTR (Guj) 272 : (1193) 201 ITR 325 (Guj.) CIT vs. Berger Paints (India) Ltd. (2002) 174 CTR (Cal)269 : (2002) 254 ITR 503 (Cal.) In the instant case, the AO has not asked any information before denying the exemption for which the assessee was legally entitled. On the other hand, he has rejected the second return which closed with the necessary documents for claiming the exemption". Further, in the case of Emerson Network Power India (P) Ltd. vs. ACIT (2009) 122 TTJ/27 SOT/ 19 DTR jurisdictional Hon‟ble ITAT, Mumbai „H‟ Bench has held that any such claim made at the time of assessment but not made in original return nor made by way of valid revised return cannot be denied. AO is obliged to give due relief to the assessee or entertain its claim if admissible as per law even though the assessee had not filed revised return. It is further held by the Hon‟ble ITAT that ....