TaxTMI 
TaxTMI 
2017 (2) TMI 174
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....the conditions laid down for the said section. Moreover, the CIT(A) admitted additional evidences in contravention to Rule 46A of the I.T. Rules, 1962." 2. "On the facts & in the circumstances of the case and in law, the Ld. CIT(A) erred deleting the disallowance of Rs. 44,28,785/- made by the AO being 25% of the purchases when no reply was received in response to notice u/s.133(6) without considering that the assessee failed to discharge the primary onus of proving the identity and genuineness of the parties." 3. Ground 1: In this ground, the Revenue has challenged the action of Ld.CIT(A) in allowing deduction claimed u/s 80IB(10) by the assessee, by admitting additional evidences by the CIT(A) in contravention of Rule 46A of I.T. Rules, 1962. It has also been alleged by the Revenue that the Ld.CIT(A) has ignored the detailed reasons given by the AO in the assessment order alleging that assessee failed to fulfil the conditions laid down u/s 80IB(10). 4. During the course of hearing, the Ld. DR submitted that in this case additional evidences have been submitted by the assessee which is evident from the certificate given in the paper book. These additional evidences were consi....
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.... of Ld. CIT(A) in deleting the disallowances made by the AO being 25% of the projects. 8. During the course of hearing, it was fairly submitted by the Ld. Counsel that the outcome of ground 1 shall have direct bearing on this issue. Since we have restored the issue in ground 1 to the file of the AO, this issue is also restored to the file of the AO. The AO shall decide the issue after affording opportunity of hearing to the assessee. 9. As a result, the appeal of the Revenue may be treated as allowed for statistical purposes. 10. Now we shall take up the appeal in ITA No.4031/Mum/2013 for A.Y. 2009-10 filed by the assessee against the order of Commissioner of Income-tax (Appeals) dated 25-03-2013 passed against the assessment order passed u/s 143(3) dated 19-12-2011 on the following grounds:- "1. The Ld. CIT(A) erred in confirming action of the A.O. in disallowing deduction u/s 80IB(10) at Rs. 86,69,941 /- without properly appreciating the facts of the case and law applicable thereto. 2. The Ld. CIT(A) erred in confirming disallowance of deduction u/s 80IB(10) merely on the technical ground that the return was not filed on time. 3. The Ld. CIT(A) failed to appreciate that t....
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....the return was filed u/s 1349(1), the assessee was not eligible for deduction u/s 80IB(10) of the Act. Before the Ld.CIT(A) the assessee explained that there was delay in filing of return of income by 379 days on account of the reasons beyond the control of the assessee on the ground that the accountant of the assessee had met with an accident and got hospitalised. However, the return was filed within extended time limit permitted under the law as prescribed in section 139(4). But, the Ld. CIT(A) did not agree with the submissions of the assessee and held that no reasonable cause has been explained and duly supported by the assessee along with the requisite evidences. The Ld. CIT(A) refused to interfere in the order of the AO on this issue and therefore, benefit of deduction was denied for not filing the return of income u/s 139(1). 14. We have gone through the legal position in this regard. It is noted that provisions of section 80AC reads as follows: "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 assessme....
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....or section 80-IC from their income, a new section 80AC has been inserted so as to provide that no deduction under section 80-IA or section 80-IAB or section 80-IB or section 80-IC shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified in sub-section (1) of section 139. 10.2 This amendment takes effect retrospectively from 1-4-2006 and applies in relation to the assessment year 2006-07 and subsequent years." (emphasis supplied in bold and underline) Perusal of the above shows that the legislature has clearly intended that benefit of aforesaid deductions should not be allowed in the cases were return is not filed within the specified time limit as prescribed in section 139(1). The whole idea of bringing this piece of legislation on the statute was to streamline and bring efficiency in the system of filing of returns, issuing refunds and carrying out assessment proceedings, etc. in an efficient and time bound manner. This obligation has been cast upon the assessee by the legislature for a valid purpose. Under these circumstances, it would not be fair, justified and legally permissible on our part to add other section i.e. sec....
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....annot be claimed if the return has not been filed on or before the prescribed day, in our view, it is a mandatory direction which prescribes the consequence of omission to file the return in time. The Courts cannot rewrite the law to do what is just according to them as rightly pointed out by Mrs. Bhargava. All the judgments cited by Mr. Khaitan have thus been dealt with. It was also the submission of Mr. Khaitan that neither of these judgments is on point which has arisen in this case. We are inclined to think that the benefit can only be availed by the assessee if he has filed his return on time. If he has not filed his return on time, the benefits cannot be claimed." 15.2. Similar view has been taken by the Hon'ble Uttarakhand High Court in the case of Umesh Chandra Dalakoti v. ACIT (dated 27th August 2012, in ITA No.7/2012) by holding that provisions of section 80AC are mandatory. 16. Thus, in view of the aforesaid legal discussion and facts of this case, it is held that assessee has failed to fulfil the condition of filing of return u/s 139(1) and, therefore, the assessee was not eligible for the benefit of deduction u/s 80IB(10) in view of clear provisions of section 80A....