TaxTMI 
TaxTMI 
2024 (5) TMI 1650
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....IT(A) has erred in confirming the denial of deduction u/s 80IA of the Act as done by the Assessing officer on the ground that as the appellant is not liable for audit u/s 44AB of the Act, the due date for filing the return of income in the case of the appellant is 31.08.2019 only and not 31.10.2019. (extended) The conclusion drawn by authorities below is erroneous both on facts and law applicable and is to be disregarded. 4. In any case, the authorities below have erred in not appreciating the fact that as the appellant is liable for audit under the provisions of Income tax Act, the applicable due date for filing the return of income is as per the explanation 2 to section 139(1) of the Act. The appellant having correctly filed the return of income within the extended due date, is entitled to deduction/s 80IA of the Act and same is to be allowed to the appellant. 5. In any case and without prejudice, even assuming and without conceding that even if there is a delay in filing the audit report in form 10 CCB, the requirement of filing the audit report being not a mandatory but a directory requirement u/s 80IA(7) of the Act is to be condoned and the deduction as claim....
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....he return of income filed was processed u/s 143(1) of the Act and the intimation made, the due date for filing return of income is taken 31.08.2019 and consequently the deduction of Rs. 50,04,395/- claimed u/s. 80IA of the Act was not allowed. In the intimation made out the regular income of the assessee is computed at Rs. 86,28,720/-. 2.6 Because of this increase in income, the tax is calculated on normal income. Further, in the intimation, the following interest is levied. Interest u/s. 234 A Rs. 24,970.00 Interest u/s. 234 B Rs. 1,57,446.00 Interest u/s. 234 C Rs. 1,08,799.00 2.7. Further, late filing fee of Rs. 5,000/- is also levied u/s.234F. Therefore, instead of refund of Rs. 9,640/- as per return of income, a demand of Rs. 11,26,763/- has been determined. 2.8. According to assessee, in the intimation, the following error / description is noted :- "In schedule VI-A, under Part-C deduction in respect of certain incomes, In Sl. No. 2 a deduction is claimed under section 80IA, without filing the corresponding schedule 80IA / Form 10CCB or Form 10CCB is not filed within due date". 2.9. In this regard, the assessee submitted that al....
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....stakeholders for extending the due date, being 30th September, 2019, for filing of income-tax returns and various reports of audit pertaining to assessment year 2019-20 for assessees' covered under clause (a) of Explanation 2 to section 139(1) of the Act read with relevant provisions of the Act and Income-tax Rules, the Central Board of Direct Taxes, in exercise of its powers conferred under section 119 of the Act, hereby extends the 'due-date', for filing income-tax returns as well as all reports of audit (which are required to be filed by the said specified due date), from 30th September, 2019 to 31st October, 2019. (emphasis supplied). However, there shall be no extension of the due date for purpose of Explanation 1 to section 234A (interest for defaults in furnishing return) of the Act and the assessee shall remain liable for payment of interest as per provisions of section 234A of the Act." 2.13 Thus, the assessee submitted that as per the above circular, the due date for filing the return of income and furnishing the audit report was extended up to 31/10/2019. The assessee filed the return of income on 05/10/2019 and even the audit report in form 10CCB was file....
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....019-20 on 5.10.2019. According to the ld. D.R., the due date for filing return of income was expired on 31.7.2019. However, the ld. A.R. submitted that the regular due date of filing return of income by assessee u/s 139(1) of the Act was up to 30.9.2019, however, it was extended by CBDT up to 31.10.2019. Hence, the revised due date is applicable to assessee for the reason that assessee was required to file audit report for claiming deduction u/s 80IA of the Act in Form 10CCB. As such, us 80IA(7) states Form No.10CCB is required to be filed after audit by accountant as defined in the explanation below sub-section (2) of section 288. He also drew our attention to the explanation to section 139(1) of the Act, which reads as follows: "Explanation 2 .- In this sub-section, "due date" means,- (a) where the assessee ^97[other than an assessee referred to in clause (aa)] is- (i) a company ^98[ *** ]; or (ii) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or (iii) a working partner of a firm whose accounts are required to be audited under this Act or und....
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....hich had been earlier framed and directed the AO to complete the assessment as per law, in terms of the directions given in the said order. Being aggrieved by the said order, the assessee preferred an appeal before the Tribunal which was allowed by the Tribunal by virtue of the impugned order. The Tribunal took the view that the provisions of section 80IA (7) with regard to filing of the audit report along with the return were not mandatory and were merely directory. In coming to such conclusion, the Tribunal referred to the decisions of the Gujarat High Court in CIT vs. Gujarat Oil & Allied Industries, 201 ITR 325 (Guj). In that decision the provisions of Section 80J(6A) were considered. The wording of Section 80J(6A) is similar to that of section 80-IA (7) which is in issue in the present appeal. The Gujarat High Court took the view that the word 'shall' which occurs in section 80J(6A) be read as 'may' and that the requirement of filing of an audit report along with the return was only to be taken as directory in nature. The Gujarat High Court took the view that in case the audit report is submitted at any time before the framing of the assessment, there ....
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....29 and in CIT v. Jayant Patel [2001] 248 ITR 199/ 117 Taxman 707 (Mad.) held that the filing of audit report along with the return was not mandatory but directory and that if the audit report was filed at any time before the framing of the assessment, the requirement of the provisions of the Act should be held to have been met. 6. That is also the consistent view of the other High Courts, including the High Court of Bombay in CIT v. Shivanand Electronics [1994] 209 ITR 63 / 75 Taxman 93 (Bom.), apart from Gujarat High Court in Zenith Processing Mills v. CIT [1996] 219 ITR 721 (Guj.) and Punjab and Haryana High Court in CIT v. Maholaxmi Rice Factory [2007] 294 ITR 631/1.63 Taxman 565 (Punj & Har). 7. The Calcutta High Court in the case in the CIT v. Berger Paints (India) Ltd. [2002] 254 ITR 503/r20031 126 Taxman 435 (Cal.) has also concurred with the said view which was followed by the Tribunal in this case. 8. Mr. T. Ravikumar, the learned counsel for the appellant is not able to produce any other judgement contrary to the above said views consistently taken. 9. In the light of the above, by virtue of hierarchy of judgements which are against the....
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....nied to the assessee, by way of adjustment under section 143(1) of the Act. On going through the statutory provisions, we observe that 80AC of the Act provides that no such deduction under section 80P of the Act shall be allowed to an assessee unless he furnishes a return of his income on or before the due date specified under section 139(1) w.e.f. assessment year 2018-19 onwards. However, section 143(1)(a)(v) of the Act provides that disallowance of deduction claimed under any of the provisions of Chapter VI-A under the heading "C .- Deductions in respect of certain incomes" (which includes deduction under section 80P of the Act), can be made if the return is furnished beyond the due date specified under sub-section (1) of section 139. This amendment has been introduced w.e.f. 1-4-2021. Accordingly, the above amendment would not apply to the impugned assessment year. Further, section 143(1)(ii) of the Act permits adjustment in case of an incorrect claim, if such incorrect claim is apparent from any information in the return. However, Explanation to the aforesaid section specifies the following cases where the claim made in the return of income can be said to be "incorrect" for the....
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....ld be said to be "incorrect". Therefore, in our considered view, the case of the assessee would also not fall within the purview of prima facie adjustment under section 143(1)(a)(ii) (an incorrect claim, if such incorrect claim is apparent from any information in the return). 7.3 We note that in the case of Chirakkal Service Co-Operative Bank Ltd. Kannur v. CIT 2016] 68 taxmann.com 298 (Kerala), the Kerala High Court held that a return filed by assessee beyond period stipulated under section 139(1) or 139(4) or under section 142(1) or section 148 can also be accepted and acted upon for entertaining claim raised under section 80P provided further proceedings in relation to such assessments are pending in statutory hierarchy of adjudication in terms of provisions of Act. In the case of ASR Engg. & Projects Ltd. [2019] 111 taxmann.com 49 (Hyderabad - Trib.), the ITAT held that to be eligible to make claim under section 80-IA or any other section of Chapter VI A, assessee should have filed return of income under section 139(1) and even if it did not make claim for deduction in original return and subsequently file revised return making such claim, its claim for deduction under....