TaxTMI 
TaxTMI 
2015 (4) TMI 1279
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....thin prescribed time namely on or before 30.09.2009, benefit of deduction claimed under Section 80IB was rejected by Assessing Officer by interpreting Section 80AC of the Act and opining that Section 139(1) alone is applicable and Sub-Section (4) of Section 139 of the Act is not attracted to the facts and circumstances of case and as such, return of income having been filed belatedly petitioner is not entitled to claim deduction under Section 80IB of the Act. 3. In fact, petitioner had approached this Court in Writ Petition No.10798/2012 c/w Writ Petition Nos.46400-46858/2012 calling in question the vires of Section 80AC of the Act and the assessment order framed by fourth respondent. Coordinate Bench of this Court having noticed rival contentions raised by parties and particularly submission made by learned standing counsel appearing for respondent - Revenue, disposed of the matter by order dated 31.07.2013, Annexure-L, whereunder petitioner who directed to file necessary applications enclosing all material information and records before Central Board of Direct Taxes (hereinafter referred to as 'CBDT' for short) for a decision being rendered on condonation of delay in fi....
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....s were available with the assessee. 7.2 Further, the Bruhat Bangalore Mahanagara Palike (BBMP), Bangalore had issued the Building Completion Certificate as early as 30.12.2008. the assessee had enough time of 9 months from the date of issue (30.12.2008) of the Building Completion Certificate to the due dated (30.09.2009) of filing the return of income, to take measurement of flats constructed against the assessee's contention to have taken 27 months just for taking measurement which is unacceptable. Thus, the assessee has failed to submit any convincing argument show that the cause of delay in filing return of income was due to circumstances beyond the control of the assessee." Being aggrieved by this order petitioner is before this Court. 4. It is the contention of Sri.S.Sriranga, learned counsel appearing for petitioner that while considering an application for delay, Authorities will have to be liberal, inasmuch as, assessee would not stand to benefit by filing the returns belatedly. He would also contend that in the instant case deduction which was claimed by petitioner / assessee under Section 80IB, has not been allowed by Assessing Officer on the ground that re....
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.... of Section 139(4) into Section 80AC is impermissible. He would also draw the attention of Court to Section 10A and 10B of the Act to contend that Special Provisions which provides deduction of certain income under those provisions would also clearly indicate that such deduction would not be allowable to an assessee if such return of income is not filed on or before the due date as specified under Sub-Section (1) of Section 139 of the Act and as such, he contends that neither Sub-Section (4) of Section 139 can be held as applicable to return of income filed by an assessee claiming deduction under Section 80IA, 80IAB, 80IB, 80IC, 80ID or Section 80IE or Section 139(4) cannot be read as deemed to have been imbedded in Section 80AC. 7. He would further contend that when a specific provision is available to an assessee to claim condonation of delay, petitioner cannot be heard to contend that application for condonation of delay ought to have been considered by the Board under Section 119(2)(b) of the Act, inasmuch as, Chapter IV and VIA of the Act finds a place in Clause (c) of Sub-Section (2) of Section 119 of the Act and as such, even in the previous round of litigation a s....
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....erpreting fiscal statute. The true nature of provision has to be understood from the very provision itself without any addition or deletion. The Hon'ble Apex Court in the case of THE MEMBER SECRETARY, ANDHRA PRADESH STATE BOARD OF PREVENTION AND CONTROL OF WATER POLLUTION VS. ANDHRA PRADESH RAYONS LTD. AND OTHERS reported in AIR 1989 SC 611 has observed as under: "6. It has to be borne in mind that this Act with which we are concerned is as Act imposing liability for cess. The Act is fiscal in nature. The Act must, therefore, be strictly construed in order to find out whether a liability is fastened on a particular industry. The subject is not to be taxed without clear words for that purpose; and also that every Act of Parliament must be read according to its natural construction of words. See the observations in Re Nicklethwait, (1885) 11 Ex. 452 at p.456. Also see the observations in Tenant v. Smith (1892) Apex Court 150 and Lord Halsbury's observations at page 153. See also the observations of Lord Simonds in St.Aubyn v. Att. Gen. (1951) 2 AII ER 473 at p. 485. Justice Rowlatt of England said a long time ago, that in a taxing Act one has to look merely at what is ....
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....ction 80-IB or section 80-IC [or section 80-ID or section 80-IE], no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139.]" 12. A plain reading of above provision would clearly indicate that deduction claimed under Section 80IA would not be allowed to an assessee if return of income for such assessment year is not filed on or before the due dates as specified under Sub-Section (1) of Section 139 of the Act. Section 139(1) of the Act reads as under: "139. [(1) Every person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed: Provided that a person, not furnishing return under this sub-section and residing in such area as may be sp....
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....is behalf; or (ii) is the owner of the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or (iii) [***] (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card, not being an "add-on" card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income [during any previous year ending before the 1st day of April, 2005], on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply: Provided also that every company [or a firm] shall furnish on or before the due date the return in respect of its income or loss in every previous ....
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....is sub-section, the 31st day of October of the assessment year; (c) in the case of any other assessee, the 31st day of July of the assessment year. Explanation 3 - For the purposes of this sub-section, the expression 'travel to any foreign country" does not include travel to the neighbouring countries or to such places of pilgrimage as the Board may specify in this behalf by notification in the Official Gazette.] [(1A) Without prejudice to the provisions of sub-section (1), any person, being an individual who is in receipt of income chargeable under the head "Salaries" may, at his option, furnish a return of his income for any previous year to his employer, in accordance with such scheme as may be specified by the Board in this behalf, by notification in the Official Gazette, and subject to such conditions as may be specified therein, and such employer shall furnish all returns of income received by him on or before the due date, in such form (including on a floppy, diskette, magnetic cartridge tape, CD-ROM or any other computer readable media) and manner as may be specified in that scheme, and in such case, any employee who has filed a return of hi....
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....be accepted for reasons more than one. 14. Exemption provision has to be read strictly. A reading of Section 80AC would clearly indicate that when return of income is filed by an assessee under Section 139(1) and deduction is claimed under provision of Chapter VIA, such deduction would be disallowed under Section 80AC particularly in respect of deduction admissible under Section 80IA, 80IAB, 80IB, 80IC, 80ID or Section 80IE, unless such return of income is filed on or before due date specified under Sub-Section (1) of Section 139 of the Act. This embargo placed under Section 80A of the Act came to be inserted by Finance Act, 2006 with effect from 01.04.2006. Under Chapter III of the Income Tax Act certain income had been held as not forming part and parcel of total income. While computing the total income of an assessee these exemption provisions would indicate that under Section 10A of the Act the profits and gains derived by an undertaking from export of articles and things etc., would be allowed from the total income of assessee as a deduction subject to provisions mentioned therein. Likewise, a newly established undertaking with 100% export oriented have also been prov....
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....er provision of the Act can be imported to be read along with said provision since Parliament has consciously omitted to include SubSection (4) of Section 139 of the Act by not inserting the said provision in Section 80AC, 10A or 10 B etc. In that view of the matter, this Court is of the considered view contention raised by Sri.S.Sriranga, learned counsel appearing for petitioner cannot be accepted and same stands rejected. 16. Yet another contention which has been raised is that petitioner / assessee pursuant to liberty granted by this Court had filed an application for seeking condonation of delay in filing the return of income and as such, Board ought to have condoned the delay by accepting the cause shown. In support of his submission he has relied upon the judgment of the Bombay High Court in the case of SITALDAS K. MOTWANI vs. DIRECTOR - GENERAL OF INCOME-TAX AND OTHERS reported in (2010) 323 ITR 223 (BOM), whereunder High Court of Mumbai was examining as to whether in the facts and circumstances of said case delay in filing the claim ought to have been condoned by CBDT by adopting liberal approach or not and in this regard it has been opined by the Mumbai High Court as un....
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.... and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence." 17. By relying upon the dicta laid down in above referred case Sri.Sriranga, learned counsel appearing for petitioner would contend that filing of return of income in the instant case being on 30.03.2011 was on account of report of auditor in Form No.10CCB having not been received by petitioner - assessee. He has also contended that return of income ought to have been accompanied with said report as contemplated under Rule 18 of Rules and as such return of income was filed belatedly on 30.03.2011 i.e., immediately after report of auditor under Section 10CCB was received. It does not detain this Court too long to brush aside the said contention for reasons more than one: firstly, filing of return of income without enclosing reports (required to be filed along with return of income) by itself would not render such return of income illegal. Non filing of return of income along with auditor's report which ought to have accompanied such return of income, if file....