TaxTMI 
TaxTMI 
2019 (11) TMI 598
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....law and on facts to hold that in view of decision in case of Chirakkal Services coop bank Vs. C1T 384 ITR 90(Ker), the issue of allowance of deduction u/s 80IB, when the return was not filed within time allowed u/s 139(1), was debatable one without appreciating that the aforesaid decision was in context of section 80P wherein no specific provision requiring the assesses to file return ; within time allowed u/s 139(1) to be eligible for deduction u/s 80P has been prescribed unlike the provisions of section 80IB r/w section 80AC wherein it has been specifically provided that to be eligible for deduction u/s 80IB, the assessee has to file return within time u/s 139(1). The order of Ld. CIT(A) therefore suffers from perversity in as much as the reliance placed by him on decision in rendered in Chirakkal Services Coop. Bank vs. CIT in context of entirely different provisions of law. 3. Whether the Ld. CIT(A) was justified in law and on facts to ignore the decision binding decision of the Kolkata High Court in case of CIT Siliguri Vs Shelcon Properties Pvt. Ltd in ITA No. 3069 of 2013, which was in context of section 80IB, wherein the High Court has held that no deduction u/s 80....
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....record, which is rectifiable under section 154 of the Act, by the Assessing Officer; and that the ld. CIT(A) was not justified to hold that in view of the decision Hon'ble Kerala High Court in the case of 'Chirakkal Services Coop Bank Vs. C1T' 384 ITR 90 (Ker), the issue of allowability of deduction under section 80IB of the Act, when the return was not filed within the time prescribed under section 139(1) of the Act, was debatable one, without appreciating that the aforesaid decision was in the context of section 80P of the Act wherein no specific provision requiring the assesses to file the return within the time allowed under section 139(1) of the Act to be eligible for deduction under section 80P has been prescribed, unlike the provisions of section 80IB read with section 80AC, wherein, it has been specifically provided that to be eligible for deduction under section 80IB, the assessee has to file the return of income within time as provided under section 139(1) of the Act. The ld. Counsel for the assessee accordingly submitted that the order of ld. CIT(A) suffers from perversity inasmuch as, the reliance placed by him on the decision rendered in 'Chirakkal Services Coop. B....
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.... "18.Questions B and C relate to denial of exemption on ground referable to belated filing of return, that is to say, returns filed beyond the period stipulated under section 139(1) or section 139 (4), as the case may be, as well as section 142 (1) or section 148, as the case may be. There are no cases among these appeals where returns were not filed. There are cases 'where claims have been made along, with the returns and the returns ^were filed within time. Still further, there are cases where returns were filed belatedly, that is to say, beyond the period stipulated under subsection 1 or 4 of section 139; and, there are also returns filed after the period with reference to sections 142(1) and 148 of the IT Act. 19. Section 80A(5) provides that where the assessee fails to make a claim in his return of income for any deduction, inter alia, under any provision of Chapter VIA under the heading "C.-Deductions in respect of certain incomes", no deduction shall be allowed to him thereunder. Therefore, in cases where no returns have been filed for a particular assessment year, no deductions shall be allowed. This embargo in section 80A(5) would apply, though section 80P ....
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....) or section 148 can also be accepted and acted upon provided further proceedings in relation to such assessments are pending in the statutory hierarchy of adjudication in terms of the provisions of the IT Act. In all such situations, it cannot be treated that a return filed at any stage of such proceedings could be treated as non est d invalid for the purpose of deciding exemption under section 80P of the IT Act. We thus answer substantial questions of law B and C and enumerated above." 10. The Delhi Bench of the Tribunal in the case of ITO vs M/s Gopi Constech Pvt. Ltd. In ITA IMo.2384/Del/2016 order dated 22.1.2018 has held as under: "18. We have heard both of parties and their contention have carefully been considered. ........... The first ground taken by the A.O is that the assessee has failed to meet the mandatory requirement as specified in section 80AC of the Act filling its return u/s 139(1) of the Act, therefore, it is not eligible to claim deduction u/s 80IA of the Act. The Id. CIT(A) has admitted the claim of the assessee on the ground that provisions of 80AC are directory in nature, Ld. Counsel of the assessee has relied upon decision of the coordina....
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....not furnished a return within the time allowed to him under sub-section (1), or within the time allowed under a notice issued under sub-section (1) of section 142, may furnish the return for any previous year at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. Provided that where the return relates to a previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year. "57. A bare perusal of this section makes it clear that the legislature itself has allowed the assessee to file return belatedly subject to fulfillment of conditions written in the said section. Therefore, once those conditions are met, then return filed by the assessee would for all technical purposes be considered being filed u/s 139(1). Thus, keeping in view the various decisions noted earlier, we do not find any reason to deny the claim of assessee on the ground of filing the return belatedly." 19. In the case of Chir....
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....tions germane for concluding the assessment would. be relevant and claims which may result in modification of the returns already filed could also be entertained, particularly when it relates to claims for exemptions. This is so because the finality of assessment would not be achieved in all such cases, until the termination of all such appellate remedies. Under such circumstances, the Tribunal was not justified in denying exemption under section 80P of the IT Act on the mere ground of belated filing of return by the assessee concerned. A return filed by the assessee beyond the period stipulated under section 139(1) or 139(4) or under section 142(1) or section 148 can also be accepted and acted upon provided further proceedings in relation to such assessments are pending in the statutory hierarchy of adjudication in terms of the provisions of the IT Act. In all such situations, it cannot be treated that a return filed at any stage of such proceedings could be treated as non est in law and invalid for the purpose of deciding exemption under section SOP of the IT Act. We thus answer substantial questions of law B and C formulated and enumerated above." ....
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....t the return had to be filed within the time prescribed under Section 139(1) of the Act, was mandatory. 6. The ITAT in the impugned order allowing appeal filed by the Assessee noted that there was a cleavage of opinion on the issue as was evident from two lines of decisions of the ITAT itself. Since a possible view in favour of the Assessee could be taken if one line of decisions was applied, the ITAT concluded that there was no justification for CIT to have invoked the jurisdiction Section 263 of the Act. 7. Before this Court Mr Rohit Madan, learned Standing Counsel for the Revenue has placed reliance on the decision dated 27th August 2012 of the Uttarakhand High Court in ITA No. 07/2012 (Umesh Chandra Dalakoti v. Assistant Commissioner of Income Tax) as well as of the Calcutta High Court in CIT v. Shelcon Properties (P) Ltd. [2015] 370 ITR 305 (Cal) both of which have held the provision under Section 80AC of the Act to be mandatory. He has also referred to the decisions of the ITAT Special Bench in Saffire Garments v. ITO 20 ITR (Trib) 623, of the ITAT Madras Bench in 1219-1223/MDS/2012 (ACIT v. Shri V.N, Devadoss), of the ITAT Chandigarh Bench in 250-2511CHD/20....
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....ritative pronouncement of this Court on the interpretation of Section 80AC of the Act and whether the said provision is mandatory or directory. 10. As far as the present case is concerned, the Court is satisfied that at the time when the CIT passed the order dated 6th February, 2012 under Section 263 of the Act there was a conflict of opinions of the various benches of the ITAT on whether 80AC was mandatory. Consequently, the ITAT was not in error in reversing the order of the CIT as far as the question of exercising jurisdiction under Section 263of the Act was concerned. No substantial question of law arises on the said issue " 14. In view of the foregoing reasons, we hold that the Assessing Officer had no jurisdiction to pass order under section 154 of the Act and hence, we cancel the order dated 29/1/2016 passed by the Assessing Officer and allow the appeal of the assessee." 7. From the above, we find that an identical issue has come up before the Tribunal in the assessee's own case for assessment year 2011-12 wherein also the Assessing Officer had withdrawn the deduction allowed under section 80IB of the Act, which has been upheld by the ld. CIT(A)....