TaxTMI 
TaxTMI 
2018 (8) TMI 268
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....hat there is a delay of 196 days in filing the appeal. For the reasonable cause attributed for the delay it has been submitted that the partner looking after the affairs Shri Shailendra Kishore Jaiswal was indisposed. In this regard, a medical certificate has been submitted certifying that he was suffering from hypertension and bronchial asthma. 4. Upon careful consideration we agree that there is reasonable cause for the delay and considering the submissions of both the counsel, we are inclined to condone the delay in filing the appeals in the interest of substantial justice. Accordingly, the delay is condoned. 5. In the order passed under section 263 in this case, the ld. Commissioner of Income Tax observed that the assessee has filed a return of income for the assessment year 2011- 12 belatedly on 25.12.2011 which was due to be filed on 30.09.2011. For assessment year 2012-13, the belated return was filed on 16.03.2013 which was due to be filed on 30.09.2012. In these returns, the assessee has claimed 80-IB deductions at Rs. 1,57,04,685/- and Rs. 51,57,714/- respectively for the two assessment years. The ld. Commissioner of Income Tax noted that the assessment was complete....
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....ssioner of Income Tax also directed to examine the allowance to remuneration twice. 8. Against the above order, the assessee is in appeal before us. 9. We have heard both the counsel and perused the records. The ld. Counsel of the assessee submitted that where the issue is squarely covered in favour of the assessee hence there was no occasion for the ld. Commissioner of Income Tax to exercise the jurisdiction u/s. 263 of the Act. He submitted that there are several case laws from the tribunal as well as the Hon'ble Bombay High Court in which it was expounded that the extended time period prescribed u/s. 139(4) of the Act should also be taken into account in this regard for considering compliance of provision u/s. 139(1) of the Income Tax Act, 1961. In this regard, the ld. Counsel of the assessee placed reliance on the following case laws: 1 ITO vs. M/s. Uma Developers (in ITA No. 7718/Mum/2014 vide order dated 10.08.2016) 2 CIT vs. Kulu Valley Transport Co. P. Ltd. [1970] 77 ITR 518 (SC) 3 Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple Trust vs. CIT [1994] 207 ITR 368 (Bom) 4 ITO vs. Yash Developers [2014] 57 (II) ITCL 171 ....
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....ion 22(3) of the 1922 Act [corresponding to section 139(4) of 1961 Act] enabled the assessee who had not furnished his return within the time allowed under sub-section (1) or sub-section (2) of section 22 of the Act to furnish it at any time before the assessment was made. The assessee submitted its return within the time specified in section 22(3). It was not accepted as a valid return for the purpose of section 22A of the Act to enable the assessee to carry forward the losses. The Supreme Court did not approve this interpretation and held that section 22(1) must be read with sub section 22(3) for the purpose of determining the time within which the return has to be submitted. It was observed that section 22(3) was merely a proviso to section 22(1). On the aforesaid reasoning, it was held that a return of income, profits or gains or of a business must be considered as having been made within the time prescribed if it is made within the time specified in section 22(3). In other words, if section 22(3) is complied with, section 22(1) must also be held to have been complied with. If compliance has been made with the latter provision, the requirement of section 22(2A) would stand sati....
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....Officer has formed a view that the assessee deserves deduction u/s. 80IB, having complied with the overall provisions of section 139, it cannot be said that the Commissioner of Income Tax can legally assume jurisdiction u/s. 263 if he does not agree with the view of the Assessing Officer. 15. In the background of the aforesaid discussion and precedent, we quash the direction of the Commissioner of Income Tax to examine the allowability of deduction u/s. 80IB for both the years. 16. Now we come to the issue of the Commissioner of Income Tax 's direction that the assessee has claimed double deduction on account of partners salary. 17. In this regard, we note that the Commissioner of Income Tax has noted that there was a survey action in the case of the assessee firm, and for assessment 2011-12, the assessee had agreed to declare additional income of Rs. 1.55 crores. However, the Commissioner of Income Tax noted that on enquiry from assessing officer in this regard the assessee had stated that assessee comes under the ambit of exemption /deduction under section 80IB. Still assessee had offered Rs. 65 lacs for taxation after submitting that assessee was allowed to pay Rs. 90 l....