TaxTMI 
TaxTMI 
2017 (4) TMI 1609
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....only in the impugned assessment year 2011-12, the assessee has claimed exemption u/s.10A of the Act. The Assessing Officer also observed that the assessee had filed Form 56F in the audit report for claiming deduction u/s.10A of the Act. In reply to show cause notice, the assessee submitted on 30.12.2013 that with regard to claim u/s.10B of the Act, the assessee company is a 100% EOU and while submitting the documents earlier, there was typographical error on the part of the assessee's tax auditor and it was wrongly mentioned deduction u/s.10A in stead of 10B in the computation sheet. The Assessing Officer observed that these are contradictory facts as in the return of income, the assessee has claimed deduction u/s 10A and filed Form 56F in the audit report and subsequently vide submission dated 30.12.2013, the assessee is claiming exemption u/s.10B of the Act. Therefore, the Assessing Officer disallowed deduction u/s.10A on the ground that it was available only to unit established under Special Economic Zone and that in the case of the assessee it was not so. He also observed that deduction u/s.10B cannot be allowed to the assessee as the assessee had not submitted the audit report....
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....prescribed u/s 139(1) of the Income tax Act, 1961. For such a failure of the assessee to file his return of income within the due date prescribed u/s 139(1) of the Income tax Act, 1961, this is not the only consequence. One consequence of such failure is prescribed in Section 234A of the Income tax Act, 1961 also as per which, the assessee is liable to pay interest on the tax payable by him after reducing advance tax and TDS/TCS if any paid by him apart from some other reductions. Such interest is payable from the date immediately following the due date for filing return of income and is payable up to the date on which such return of income was furnished by the assessee and if the assessee has not furnished any return of income then the interest is payable till the date of completion of the assessment u/s 144. In our considered opinion, this is also one of the consequences of not filing return of income by the assessee within the due date. One may raise this argument that interest u/s 234A is payable only if the assessee has not paid his advance tax and, therefore, this is interest for the failure of the assessee to pay advance tax as per the requirement of the Act and not for the ....
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....s issue was examined by Hon'ble Apex Court in the case of Prakash Nath Khanna (supra) as cited by the learned DR and it was held by the Hon'ble Apex Court in that case that even if the return of income is filed in terms of subsection (4) of Section 139 and it does not dilute infraction in not furnishing return in due time as prescribed u/s 139(1) of the Act. This judgement also supports the view taken by us while answering question NO.1 as per above paras. When even for the purpose of prosecution also, it was held by the Hon'ble Apex Court that even if the return of income furnished by the assessee within the time allowed u/s 139(4), it does not dilute infraction in not furnishing the return in due time as prescribed under sub-section(1) of Section 139, then it cannot be accepted that such furnishing of return of income within time allowed u/s 139(4) will dilute the provisions contained in the proviso to Section 10A(1A) of the Income tax Act, 1961. 13. Regarding various submissions of the Ld. A.R. and various judgements on which reliance has been placed by the Ld. A.R., we would like to observe that these submissions do not have merit in view of our above discussion. The first su....
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....cited before us as under : - The first judgement submitted in paper book II is the judgement of Hon'ble Apex Court rendered in the case of Director of Inspection of Income Tax v. Pooran Mall & Sons (96 ITR 390). In that case, the issue involved was regarding the validity of the order passed by the A.O. u/s 132(5) for retaining the seized assets and hence, this judgement is not relevant in the present case. - The 2nd judgement cited is the judgement of Hon'ble Madhya Pradesh High court rendered in the case of CIT v. Panama Chemical Works (113 Taxman 717). In that case, the issue involved was regarding filing of audit report in Form 10CCB. The same was required to be filed along with the return of income filed by the assessee but in that case, the same was filed during assessment proceedings. Under these facts, it was held that the claim of the assessee regarding deduction u/s 80-I cannot be rejected if the required report in Form 10CCB was filed in the course of assessment proceedings. In the present case, the dispute is not regarding filing of some report along with return of income but the dispute is regarding filing of return of income itself within due date and hence, ....
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....case. - The next judgement cited before us is the judgement of Hon'ble Delhi High Court rendered in the case of Church's Auxiliary for Social Acton and Anr v. Director General of Income Tax (Exemption) & Others (325 ITR 362). In that case, the dispute was regarding deduction u/s 80G of the Income tax Act, 1961 and as per the facts of that case, the objection was regarding failure of assessee in rendering accounts to the competent authority within the prescribed period and it was held that such a requirement is directory and not mandatory. In the present case, the dispute is regarding filing of return of income itself within the due date and hence, this judgement of Hon'ble Delhi High Court is also not relevant in the present case. - The next judgement cited before us is the judgment of Hon'ble Gujarat High Court rendered in the case o CIT v. Gujarat Oil and Allied Industries (201 ITR 325). In that case also, the dispute was regarding the requirement of filing of audit report as to whether the same is mandatory or directory and as discussed in above paras, this judgment is also not relevant in the present case. - The next judgement cited before us is the judgement of Hon'ble D....