TaxTMI 
TaxTMI 
2022 (1) TMI 34
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....passed by the CIT(A)-1, Nagpur. There is delay of 363 days in filing appeal. The order is passed by the First Appellate Authority on 30/05/2014, which was received by my counsel Shri Adv. M Mani. Dismissal of said appeal was informed to me by my counsel, who also advised me to file an appeal before the ITAT against said order. Based on his advised, I asked him to file an appeal to the ITAT. But before the limitation period of sixty days ended Mr. Mani's health started detoriating and he left for heavenly abode on 16th October, 2014. The office of Mr. Mani is closed since then Mr. Mani used to reside with his wife, she had very little knowledge of record keeping of Mr. M Mani. In the meantime, I met with an accident where my left leg was fractured and I was confined to bed for almost six months. If required, I can file entire sets of medical reports and affidavit. It was only when I started working on daily routine, I visited Mr. Mani's house searched for file but same was not traceable. Now I am filing an appeal after obtaining a photocopy of same from the department. It is because of all this reason and because of the fact that I met with an accident, I ....
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....ice being done because of a non-deliberate delay. It was also held by the Hon'ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that there is no culpable negligence or malafide on the part of the assessee in delayed filing of the present appeal and it does not stand to benefit by resorting to such delay more so considering the fact that it has applied for settlement of present dispute and payment of appropriate taxes. Therefore, in the factual matrix of the present case, we find that there exists sufficient and reasonable cause for condoning the delay in filing the present appeal and as held by the Hon'ble Supreme Court, where substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserved to be preferred. 6. In light of aforesaid discussions, in exercise of powers under section 253(5) of the Act, we hereby condone the delay in filing the present appeal as we are satisfie....
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....)(Vol -2) In this case the issue before, the Hon'ble Jurisdictional High Court was disallowance of exemption under section 11, as the assessee trust belated filed return of income under section 139(4). (Section stipulates filing of return under section 139(1) for exercising an option u/s 11(1). Para 5 of the Judgment 5. "On a careful reading of section 139 we are of the clear opinion that sub sections (1) and (4) of section 139 have to be read together and on such a reading, the inevitable conclusion is that a return made within the time specified in sub-section (4) has to be considered as having been made within the time prescribed in sub-section (1) or sub-section (2) of section 139. In other words, if a return is filed within the time specified in sub section (4) of section 139 and the option contemplated by the Explanation to section 11(1) is exercised in writing along with such return, the requirements of the Explanation to section 11(1) would stand satisfied," Sukhkarta Developers and Builders Vs PCIT (Nagpur) (Trib) 596 & 597/Nag/2016 dated 01/08/2018 (Paper book page No 53) In this case, the issue before the Hon'ble Juris....
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....he due date stipulated under section 139(1) of the Act, the deduction should not be disallowed under section 143(7) of the Act merely in view of the provisions of section 80C of the Act Late Hussein Ismail Dawoodani Vs DCIT (Mumbai) (Trib) 194/Mum/2017 dated 27/11/2018. (Paper book Pg No 61) In this case, among many issues, the one issue is regarding disallowance of 8016 deduction for belated filing of return. The Hon'ble Tribunal following the aforementioned judgment of the Jurisdictional Bombay High Court, decided in favour of the assessee and held that the return filed under section 139(4) will be treated as sufficient compliance. Para 16 of the Judgment (Paper book, Page No 73) 16. "After having gone through the facts of present case and after perusing the submissions of both the parties we found that identical issue has already been decided by the Coordinate Bench of the Tribunal in the case of Uma Developers (supra) wherein it was categorically held that the claim of the assessee cannot be disallowed under section 80IB(10) of the Act only on the ground that the return of income was filed beyond the period stipulated under section 139(1)....
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....n. * The important fact which the appellant wishes to place on record is the first appellate order for A.Y. 2010- 1. l(Succeeding year). (Paper book Pg No 9 to 23) * For A.Y. 2010-11 (i.e.) succeeding year, the Assessing Officer made similar disallowance in the assessment for non submission of completion certificate. * Aggrieved with the disallowance [A.Y 2010-11], the appellant carried matter to the First Appellate Authority. The learned Commissioner on the basis of completion certificate of the architect and other circumstantial evidences, allowed the appeal of the appellant by relying on the Jurisdictional Nagpur Tribunal in the case of New High Rise Construction. * Therefore, as far as the completion of the project, the issue is no more res-integra. [ Photocopy of CIT(A) order for A.Y. 201011 is available on page no 9 of Paper book, operating paragraph 6.2.4 is at page no 22 of the paper book]. * Therefore, as the project is completed in 2011 and the same fact is already on record, the appellant has complied with all the conditions of the section 80IB. Considering the fact that the appellant has substantially complied with a....
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....rs and Builders Vs PCIT (Nagpur) (Trib) 596 & 597/Nag/2016 dated 01/08/2018, ITO Vs Uma Developers (Mumbai) (Trib) ITA No 7718/Mum/2014 dated 10/08/2016, Late Hussein Ismail Dawoodani Vs DCIT (Mumbai) (Tribj 194/Mum/2017 dated 27/11/2018 and M/s Symbiosis Pharmaceuticals P. Ltd Vs DCIT (Chandigarh] (Trib) 501,/Chd/2017 dated 04/10/2017. On the contrary, the ld. DR has categorically submitted that since there was non-compliance on the part of the assessee for seeking deduction U/s 80IB of the Act, therefore, the same was rightly denied by the lower authorities. 14. After having meticulously gone through the facts of the present case as well as after having gone through the documents placed on record by the ld. AR by way of paper book, we found that although there was delay of 27 days on the part of assessee for filing the return of income but audit report was filed by the assessee in time and this fact has not been disputed by the ld. DR. We have further noticed that delayed filing of return of income was within the time limit prescribed U/s 139(4) of the Act which according to us is a sufficient compliance for the purpose of Section 80AC of the Act. In this regard, we draw stren....
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....139(1) are directory in nature and return filed U/s 139(4) of the Act is to be treated as sufficient compliance. Even the identical issue has already been decided by the Coordinate Bench of this Tribunal in the case of Sukhkarta Developers and Builders Vs PCIT (supra) wherein it was categorically held that claim of the assessee cannot be disallowed U/s 80IB of the Act only on the ground that the return of income was filed beyond the period stipulated U/s 139(1) of the Act in view of provisions of Section 80AC of the Act as the same is beyond the scope of Section 139(1) of the Act. The submission of return within time as specified under sub-section (4) of Section 139 has to be taken as sufficient compliance in the provisions of the Act as it was expounded that sub-section (1) and sub-section (4) of Section 139 have to be read together. Thus, keeping in view the above settled provisions of law, we reach to an inevitable conclusion that the return of income so filed by the assessee in the present case within the time specified in sub-section (4) of Section 139 of the Act has to be considered as filed within the time prescribed in sub-section (1) of Section 139 of the Act. Thus, on thi....