2021 (8) TMI 221

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Act, 1961. 3. The Petitioner is engaged in providing software service and was entitled to avail the benefit of exemption under Section 10B of the IT Act, 1961. However, while filing the Income Tax Return on 30.11.2006, the petitioner failed to claim the benefit of exemption/deduction under Section 10B of the IT Act, 1961. 4. As per Section 80A(5) of the IT Act, if an assessee fails to make a claim in his return of income for any deduction under Section 10A or Section 10AA or Section 10B or Section 10BA or under any provision of the Chapter under the heading "C", no deduction shall be allowed to him thereunder. 5. It is the specific case of the petitioner that this was the first year when the filing of return on income was mandatory through electric mode. By the time when the Intimation dated 28.03.2008 was issued by the Income Tax Department, notice under Section 143(1) (a) of the IT Act was received by the petitioner on 18.05.2008 and the statutory period of limit prescribed for filing revised return under Section 139(5) of the IT Act as it stood then had already expired on 31.03.2008. 6. The learned counsel for the petitioner submits that the proviso read with Section....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d. Vs. Commissioner of Income Tax and Another, (1991) 187 ITR 688 (SC). v. Ramdev Exports Vs. Commissioner of Income Tax, (2001) 251 ITR 873 (GUJ) : (2002) 120 TAXMAN 315 (GUJ). 9. He further submits that the benefit of exemption/deduction under Section 10B of the IT Act has been given to the petitioner for the succeeding Assessment Year 2007-2008 vide Assessment Order dated 09.12.2009. 10. The learned counsel for the petitioner relied upon the decision of this Court rendered in Annamallais Agencies Vs Commissioner of Income-Tax and in M/s.Craftsman Automation P Ltd., Coimbatore Vs The Commissioner of Income Tax-II, Coimbatore and another in W.P.No.3967 of 2009. He submits that delay in filing the return cannot be act in prejudice to the case of the petitioner for rectification of the order and for a revision of the order, the Court has already taken a view in Craftsman Automation P Ltd (referred to supra). The learned counsel for the petitioner further submits that dealing with a similar situation, the Division Bench of the Bombay High Court in Sese Goa Ltd., Vs Additional Commissioner of Income-Tax, allowed the similar relief to the petitioner herein. 11. The le....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d as a mistake so as to fall within either Sub-section (1) or Sub-section (2) of Section 154. According to the Assessing Officer, the mistake was on the part of the assessee in not filing an auditor's certificate at the time of filing of the return. But, according to the assesse, in his reply to the notice under Section 263, the mistake was on the part of the Assessing Officer is not giving an opportunity under Section 139(9). 10. Mistakes can be of several kinds. An omission to produce the record is as much a mistake as an omission to take note of a record. Therefore, the Tribunal as well as the Commissioner were wrong in presuming that the case would not fall under Section 154. Hence, the questions of law are answered in favour of the assessee and the appeal is allowed. No costs." 13. The learned counsel for the petitioner also submitted that in the context of Section 35 of the Indian Income Tax Act, 1922 which is pari materia with Section 154 of the Income Tax Act, 1962. The Hon'ble Supreme Court in Maharana Mills (P.) Ltd Vs Income-Tax Officer, 36 [1956] 36 ITR 360 (SC), wherein, held as follows:- " "(1) The Commissioner or Appellate Assistant Comm....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.....03.2011 and therefore the writ petition was not maintainable. 15. The learned counsel for the respondents further submits that it was open for the petitioner to file a statutory appeal against the Assessment Order made under Section 143(1)(a) of the IT Act, 1961 dated 28.03.2008 and therefore relied on the similar decision relied by the petitioner in Commissioner of Income Tax Vs Malind Laboratories P. Ltd in T.C.A. No. 874 of 2014, where in the Honourable Division Bench of this Court complied the decision of theHon'ble Supreme Court in Ram Lal Vs Reva Coal Field Ltd. AIR [1962][SC] 361 and dismissed the case by answering the question of law raised against the revenue. 16. The learned counsel also submits that the scope of interference under Article 226 of Constitution of India is limited and therefore submits that as per the Hon'ble Supreme Court in Tata Cellular Vs Union of India, (1994) 6 SCC 651, the present writ petition is to be dismissed has none of the constitutions enumerated by the Hon'ble Supreme Court are attracted. She draws my attention to Para 77 of the said decision, which reads as under:- "77. The duty of the court is to confine itself to the questi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....rns in time and therefore the petitioner is not entitled to rectification and revision of the order. 19. I have considered the arguments advanced by the learned counsel for the petitioner and the respondents. 20. This is a case where the petitioner had failed to claim the benefit of exemption/deduction under Section 10B of the IT Act, 1961 as per Section 80A(5) of the IT, 1961 in Income Tax Returns. The petitioner was acquired to make a claim in the said Returns filed under Section 139 of the IT Act, 1961. 21. In case, no such deductions are claimed when the Returns filed under Section 139 of the IT Act, 1961, no deduction can be allowed. Under these circumstances, the Assessment Order passed by the Assessing Officer under Section 143 (1) (a) of the IT Act, 1961 cannot be said to be an erroneous order passed by the Assessing Officer as it is based on the Returns filed by the petitioner. Assessments under IT Act, 1961 are driven based on the Returns that are filed under Section 139 of the IT Act, 1961. 22. The Hon'ble Division Bench of this Court in Annamallais Agencies Vs Commissioner of Income-Tax has accepted the proposition that for the purpose of rectification of....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ilable to an assessee. 28. Dealing with a somewhat similar case, this Court in M/s.Craftsman Automation P Ltd., Coimbatore Vs The Commissioner of Income Tax-II, Coimbatore and another in W.P.No.3967 of 2009 vide order dated 03.12.2019, has allowed the benefit where returns was filed beyond the period of limitation prescribed under Section 139(5) of the IT Act, 1961. The operative portion of the order reads as under:- "20. As far as non-filing of the returns for the Assessment Year 2004-05 is concerned, the time-limit prescribed for revising the return under Section 139(1) in terms of Section 139(5) would not eclipse the powers vested with the 1st respondent under Section 264 of the Act to act fairly. In this connection, reference has been made to the decision of this Court in Sri. SelvaMuthu Kumar Vs. Commissioner of Income Tax, [2017] 394 ITR 247 a Division Bench of this Court held as follows:- .................... ..................... 25. The 1strespondent has observed that as per sub- Section 2 to Section 80JJAA of the Income Tax Act, 1961, deduction cannot be allowed unless the assessee furnishes certificate along with the return of in....