TaxTMI 
TaxTMI 
2022 (5) TMI 889
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....power through Windmills. The assessee filed its ROI on 29.11.2014, declaring total income at Rs. 3,67,72,210/-. The case was selected in scrutiny through CASS and statutory notices were issued accordingly. The appellant made a claim of Rs. 14,96,121/- as deduction u/s. 80IA(4) of the Act during the course of assessment proceedings, which was otherwise not made in the return of income. However, the AO disallowed the same on the grounds that there is no provision under the Act to make amendment in the ROI by modifying it by way of an application at the assessment stage without revising the ROI. In support of his finding, he placed reliance on the decision of Hon'ble Supreme Court in the case of Goetze India Ltd. 284 ITO 323. It is against the said finding, and the consequent disallowance, that the appellant is in appeal before me. 5. In Ground No. 1, the appellant has alleged that the AO has erred in rejecting the claim made by the appellant u/s. 80IA(4) during the course of assessment proceedings. The appellant filed written submissions in DAK on 24/10/2017, in which it has been admitted that the claim was inadvertently not made in the original ROI. It is also stated that the ....
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....sessment, whichever is earlier. Accordingly, the last date for filing revised ROI for the appellant was 31.03.2015. However, the notice u/s. 143(2) was issued only on 16/09/2015 by which time the date for filing revised ROI was already over. Hence, it was not possible for the AO to advice the appellant to file a revised return u/s. 139(5) to stake a claim of deduction. Considering the totality of facts, and the law laid down in this regard, the reliance placed by the appellant on CBDT Circular, is misplaced. 7. The appellant has also relied upon the following case laws in support of its contention that the AO should have entertained his claim during the course of appellate proceedings, which are being distinguished hereunder- a) CIT Vs Pruthvi Brokers (2012) 349 ITR 0336 (Bom.) In this case the Hon'ble High Court of Bombay has duly considered the decision of the Hon'ble Apex Court in the case of Goetze India (supra) and held that assuming that the AO cannot admit the claim, the CIT (A) & the Tribunal should examine its admittance. Hence its finding is primarily on admission of claim at the appellate stage and not at the assessment stage. Therefore this case cannot be ....
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....tional ground which according to the Tribunal arises in the matter and for just decision of the case." Hence the issue before the Hon'ble court was not related to an additional claim made before the AO during assessment. Moreover, the judgment relied upon is dated 06/03/1997 which is much before the case of Goezte India (Supra). f) CIT V/s. Motor Industries Company Ltd. 229 ITR 137 (Karn.) This case is also on the powers of appellate authority and not that of the AO. It was held that "It is now well settled that when the assessment is not under s. 143(1), the appellate authority may permit the assessee to claim a deduction or exemption in appeal, which he had not claimed before the ITO, particularly when the relevant material is on record". Moreover, the judgment relied upon is dated 27/08/1997 which is much before the case of Goetze India (Supra). 8. Hence it can be seen from all the decisions above, relied upon by the appellant, that they are in respect of the powers of the appellate authorities to admit additional claims that were not made in the original or revised ROI. The argument of the appellant, that in view of all these decisions, the AO should have admitted the cla....
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....ed beyond the stipulated date, is non-est in the eyes of law. Hence it is clear that the impugned claim was neither made in the original ROI nor in revised ROI. In this background it is important to refer to the provisions of section 80AC of the Act, which are reproduced below: "80AC. Deduction not to be allowed unless return furnished.-Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80-IAB or section 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." 13. The above provisions make it clear, that for claiming deduction u/s 8oIA, the ROI must be filed within time stipulated u/s 139(1) of the Act. The question that arises is - what kind of ROI is being referred here? The answer is, that it refers to those returns in which a claim u/s 8oIA/IB/IC/ID has been made. This argument is substantiated by the simultaneo....
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....sed Return. However the AO applied the provisions of section 8oAC and rejected the claim in the revised return on the grounds that deduction u/s 80IA(4) cannot be made in the revised Return if the same has not been made in the original return. The action of the AO was upheld by Ld.CIT(A)-V, Pune, vide order dated 12.09.2014, in Appeal No. PN/CIT(A)-V, Rg.9/ 136/ 13-14. The finding of Ld.CIT(A)-V, Pune, in AY 2010-11 is reproduced below:- "9. I have carefully considered the facts of the case as well as reply of the appellant. The dispute in this case revolves around the claim of deduction u/s. 80IA(4) of Income-tax Act, 1961 in respect of wind mill units. As stated in the assessment order, the appellant was having three wind mill units at Satara, Coibatore and Ambheri which started functioning as per chart on page 3 of the assessment order. The appellant had the option to claim the deduction for any ten consecutive years out of fifteen years beginning from the year in which the undertaking started generating power or commences transmission and distribution of power as per Sec.80IA(2) of Income-tax Act. Thus, when the appellant opts for the claim, the assessment year becomes initia....
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....vision, it is explained that loss if any incurred in windmill division has been fully setoff against the income from manufacturing business in the respective years and there is no carried forward loss for current Assessment year i.e. A. Y. 2010-11." 10. The Assessing Officer, relying upon the provisions of Sec. 80AC held that this claim should have been made in the return filed u/s. 139(1) of Income-tax Act, 1961. The Assessing Officer noted that though original return was filed within time allowed u/s.139(1) of Income-tax Act but since the claim u/s. 80IA(4) of Income-tax Act was not made in that return, the appellant was not entitled to deduction u/s. 80IA (4) of IncomeTax Act. At this point of time, it is imperative to go through the provisions of Sec; 80AC of Income-tax Act. Sec. 80AC of income-tax Act was brought into statute vide Finance Act 2006, w.e.f 01.04 .2006 i.e . effective from A.Y. 2006-07. The same reads as under: [Deduction not to be allowed unless return furnished. 80AC. Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1st day of April, 2006 or any subsequent assessment year, any deduct....
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....tim* e in revised return of income filed u/s. 139(5) of Income-tax Act, 1961 is also not in sync with the provisions of that section as choosing initial year in revised return of income cannot be said to be either omission or wrong statement stipulated in Sec. 139(5) of the Income-tax Act. Therefore, view taken by the Assessing Officer on this ground cannot be faulted with. This view also finds support from the decision of Amritsar Bench of the Tribunal in the case of Bal Kishan Dhawan HUF Vs. ITO[2012] 18 taxmann.com234. In this case, though the claim was made in Sec. 139(4) of Income-tax Act,nevertheless Tribunal in it's order categorically held that Sec. 80AC not only contains the time limit for claiming deduction u/s. 80IB but also indicates the consequences that would follow if return of income containing claim of deduction is not furnished before, the due date specified in Sec. 139(1) of Income-tax Act. The bench held that provisions of Sec. 80AC of Income-tax Act are mandatory and if the assessee wants to avail deduction u/s. 80IB of Income-tax Act, he has to necessarily furnish his return of income containing such claim within the time permissible u/s. 139(1) of Income-....
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....provisions of section 80AC are mandatory in nature and therefore failure to furnish the return of income filed in due date specified in Section 139(1) would disentitle the assessee for the claim of deduction u/s 80IB. 15. Section 80AC is also in the nature of limit of time within which the claim for deduction u/s 80IB must be preferred. The time limit for preferring the claim of deduction u/s 80IB is time limit specified in Section 139(1) of the Act. If the claim for deduction u/s 80IB is not made as in the manner and as per time limit specified in Section 80AC, the claim for deduction u/s 80IB gets time barred. It is well settled that an Act must be done strictly in the manner provided by law. If the law requires as Section 80AC requires that deduction u/s 80IB cannot be available unless the return is furnished before the due date specified in Section 80AC, the claim of the assessee for deduction cannot be entertained in contravention of the provisions of section 80AC. 16. At the time of hearing, the Id. authorised representative for the assessee relied heavily upon the judgments of the Hon'ble jurisdictional High Court in Ms. Jagriti Aggarwal (supra) for the proposition t....
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....t, inserted vide Finance Act 2006 w.e.f. 01.04.2006 i.e. A.Y. 2006-07. 14. The appellant has relied upon the decision of Hon'ble Mumbai Tribunal 's order in the case of Yash Developers Vs. ITO in ITA No. 809/Mum/2011 wherein the claim u/s. 80IB(10) of Income-tax Act made in belated return of income filed u/s. 139(4) of Income-tax Act, 1961 was accepted by the CIT(A), relying upon the decision of Hon'ble Bombay High Court in the of Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple CIT(1994) 207 ITR 368(Bom) which has been upheld by the Mumbai Tribunal . In this regard, it is seen that reliance of the appellant on the above case law is misplaced as proviso (fourth) to Sec. 139(1) r.w.s 80AC of Income-tax Act was brought into the statute vide Finance Act 2006 w.e.f. A. Y. 2006 -07, while the decision of Bombay High Court pertains to A. Y. 1972- 73 much before the above amendment. Therefore, in view of the above position, I am unable to follow the above decision of Hon'ble Mumbai Tribunal in the case of Yash developers(supra). 15. Accordingly, it is held that the appellant is not entitled to deduction u/s. 8OIA(4} of Income-tax Act by opting initial assess....