TaxTMI 
TaxTMI 
2018 (3) TMI 965
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....October, 2006. However, the return was filed by the petitioner on 30th March, 2007 before expiry of the assessment year in question as per the extended time provided under Section 139(4) of the Act. 4. By assessment order dated 26th November, 2018, the Assessing Officer disallowed deduction under Section 80IB of the Act on the ground that the return of income was not filed within the time limit specified under Section 139(1) as mandated. Reliance was placed on Section 80AC of the Act. Disallowance was upheld in the first appeal by the Commissioner of Income Tax (Appeals) vide order dated 12th October, 2009. The second appeal preferred before the Income Tax Appellate Tribunal (Tribunal, for short) was also dismissed vide order dated 31st October, 2012, inter alia, holding that for claiming deduction under Section 80IB, return of income should have been filed before the due date prescribed under Section 139(1) of the Act. 5. Counsel for the petitioner has stated and accepted that the petitioner has not preferred any appeal under Section 260A of the Act against the order of the Tribunal dated 31st October, 2012, which has attained finality. 6. The Tribunal had, however, noted....
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....pographical error, in our opinion, would not be a justification to set aside the impugned order and remit the case for reconsideration. 10. The fact remains that the petitioner had filed application under Section 119(2)(b) for extension of time for filing of return for Assessment Year 2006-07 on 11th May, 2011, more than four years after the return of income was belatedly filed under Section 139(4) on 30th March, 2007. The due date for filing of return was 31st October, 2006. The Assessing Officer had rejected the claim for deduction under Section 80IB of the Act vide order dated 26th November, 2008 and the first appeal was dismissed vide order dated 12th October, 2009. It was only when the matter was pending before the Tribunal that the petitioner filed the said application for extension of time. 11. The impugned order also examines whether the reason and justification given by the petitioner for the delay in audit, i.e., the illness of the auditor. Field unit authorities were asked to verify the assertion on merits and had queried with the auditor who had responded as under:- "Query (i) Whether submission of the assessee that audit was not completed in time by the Audito....
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....ted on account of illness. Auditor did not also furnish any evidence and material in support of his illness. Interestingly, in response to one of the queries, the auditor had accepted that all other audits were completed in time. Audit in the case of the petitioner was the only audit that was delayed because it was a big assignment and personal attention of the auditor was required. The petitioner had not taken any action against the auditor. 12. Subsequently, the petitioner had filed an affidavit of the auditor to the following effect:- "Affidavit. "I, CA Hitesh Badani (Mem. No. 37649) of Badani Associates, Chartered Accountants from Pune do hereby state on solemn affirmation as under: 1. Badani Associates, of which I was the proprietor, was the Tax Audit of M/s B U Bhandari Nangude Patil Associates (PAN AAGPB8429C) for F.Y. 2005-06 relevant to A.Y. 2006-07. 2. "I had conducted the audit of M/s B U Bhandari Nangude Patil Associates for the said year and completed the same on 21.03.2007. 3. In relation with the petition u/s 119(2)(b) filed by M/s B U Bhandari Nangude Associates for condoning the delay in the filing of return for A.Y. 2006-07, I had filed letter da....
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....earlier was reiterated. 8. The facts of case the assessee's submissions and the authorised representative's arguments have been considered. The argument that the assessee could have followed percentage completion method in which case the issue of claiming deduction u/s 80IB(10) would have arisen in a subsequent year, is a hypothetical argument and therefore, not relevant to the present proceedings. 9. The main issue raised by the assessee in this case is that the delay in audit has led to delay in filing of return which had led to his claim of 80IB(10) being disallowed and this had caused genuine hardship to him. It should be noted first that disallowance of any claim will normally lead to hardship. The Legislature has provided time limits for certain obligations under the Act and these time limits have to be observed to be able to claim certain deductions, allowances and avoid interest and penalty. This may be termed a hardship but it is hardship imposed by law in the interest of proper regulation of the Act. If these time limits were to be relaxed in a particular case, mere fact that a default occurred due to some reason is not enough to establish the claim of genuine hards....
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....sking the petitioner to establish the reason propounded. In the absence of details of alleged illness and a single document to support the bland assertion, we are not inclined to hold that the impugned order suffers from perversity or error in decision making process in reaching the conclusion. Impugned order is not arbitrary or whimsical, to justify interference in exercise of our power of judicial review. The respondent authorities have taken all the arguments and materials into consideration. Procedural flaw is not alleged. 16. The findings recorded in the impugned order and the facts discussed above reveal :- (i) Return for the assessment year 2006-07, which was to be filed under Section 139 (1) of the Act on 31st October, 2006 was filed by the petitioner after five months on 30th March, 2007. (ii) The petitioner was denied benefit of deduction under Section 80IB in terms of Section 80AC of the Act. (iii) The order passed by the Tribunal confirming the findings of the Assessing Officer and the first appellate authority denying deduction under Section 80IB has attained finality. (iv) The petitioner had applied to extension of time for filing of return under Sectio....