TaxTMI 
TaxTMI 
2016 (9) TMI 802
X X X X Extracts X X X X
X X X X Extracts X X X X
.... are against the appellant are opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case. 2. The learned CIT[A] is not justified in confirming the action of the learned A.O. in not granting deduction u/s.80IB of the Act, on the ground that the return of income was not filed within the due date for filing the return u/s.139[1] of the Act, without appreciating the fact there was no income liable to tax warranting for filing the return u/s.139[1] of the Act and the return was filed validly u/s.139[4] of the Act and therefore, the due date should be taken as the due date to file the valid return u/s.139[4] of the Act and there is no justification for invoking the provisions of Section 80AC of the Act, to ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the circumstances of the appellant's case deserves to be cancelled. 6. For the above and other grounds that may be urged at the time of hearing of the appeal, your appellant humbly prays that the appeal may be allowed and Justice rendered and the appellant may be awarded costs in prosecuting the appeal and also order for the refund of the institution fees as part of the costs." 2. During the course of hearing, the ld. counsel for the assessee has moved an application with a request for admission of the following additional ground:- "1. The authorities below have erred in assessing the income from the joint development under the agreement dated 18/03/2004 for the assessment year under appeal, even though the income from joint ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o. Ltd. v. CIT, 229 ITR 383 (SC). 5. It was further contended that the assessee is developing residential housing project and claimed deduction u/s. 80IB(10). The AO disallowed deduction u/s. 80IB(10) after recording the fact that the assessee has not filed return of income within the time laid down u/s. 139(1) of the Act, following the provisions of section 80AC. Now the assessee has sought relief on the ground that the provisions of section 80AC are only directory and not mandatory. Therefore, the return filed u/s. 139(4) is in time and assessee is entitled to deduction u/s. 80IB(10) of the Act. 6. The ld. DR submitted that this issue is squarely covered by the order of the Tribunal in the case of ITO v. Dr. K. Balaraman in ITA No.1....
X X X X Extracts X X X X
X X X X Extracts X X X X
....developers and builders and it has claimed deduction u/s. 80IB of the Act and deduction u/s. 80IB of the Act can only be claimed, when the assessee offers its income on the construction of the project. But it was disallowed by the AO and before the CIT(Appeals) the assessee has reiterated its contentions. Nowhere the assessee has made out a case that it entered into joint development agreement with the third party and it has earned capital gain. Therefore, the additional ground raised by the assessee cannot be admitted at this stage as it requires verification of facts. Moreover, through this additional ground the assessee has taken a stand contrary to the stand earlier taken. 11. So far as the appeal on merits is concerned, we find that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....me is mandatory. The Special Bench held that the provisions of the proviso to Section 10A(1A) is nothing but a consequence of failure of the assessee to file the return of income within the due date prescribed u/s 139(1) of the Income tax Act, 1961. For such a failure of the assessee to file his return of income within the due date prescribed u/s 139(1) of the Income tax Act, 1961, this is also only of the mandatory consequence. The Special Bench accordingly held that provisions of the proviso to section 10A(lA) are mandatory and not directory, thus deduction u/s 10A(lA) could not be allowed to an assessee who fails to furnish a return of income on or before the due date specified u/s 139(1). The decisions rendered by the division bench of ....