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TMI Blog2012 (4) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... merits and it should not be rejected - AO has not examined the claim of the assessee on merits that whether or not the assessee is fulfilling the conditions laid down in Section 80IC, we restore the matter back to the file of AO to examine that whether these conditions are satisfied by the assessee - Appeal in favour of assessee in the mentioned manner. - IT Appeal No. 3352 (Delhi) of 2011 - - - Dated:- 25-1-2012 - I.P. Bansal, Shamim Yahya, JJ. K. Sampath and V. Raja Kumar for the Appellant. Salil Mishra for the Respondent. ORDER I.P. Bansal, Judicial Member This is an appeal filed by the assessee. It is directed against the order passed by the CIT (A) dated 11th May, 2011 for Assessment Year 2008-09. The grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce all the papers were given to the counsel, the assessee was under bona fide belief that the return was filed as was being done in the past and the assessee should not be penalized for default of professional who is well versed with the provisions of law. In continuation of the aforementioned submissions, the assessee also submitted that copy of receipts of audited accounts along with relevant audited report for claim of 80IC was filed with the department before the due date of filing the return. The return could not be filed in time in the circumstances narrated by the counsel of the assessee in his affidavit which is self-explanatory. It was submitted that furnishing of return within due time as specified in Section 80IC was a new pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cable to the facts of the case. The law does not provide any relief on account of reasonable cause resulting in delay in filing the return of income and, in this manner, learned CIT (A) has dismissed the appeal filed by the assessee. The assessee is aggrieved, hence, in appeal. 3. The submissions made by the assessee before the CIT (A) have been reiterated before us. In the paper book filed by the learned AR copies of submissions made before the CIT (A) are enclosed. Along with that the receipt of documents submitted by the assessee in the shape of Form 10CCB and 3CB/3CD for the year under consideration on 30th September, 2008 is enclosed. Copy of affidavit filed by the ld. Counsel of the assessee is also enclosed. Relying on these docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f income within the due date prescribed u/s 139 (1) learned CIT (A) was justified in upholding the action of the Assessing Officer and his order should be upheld. 5. We have carefully considered the rival submissions in the light of the material placed before us. It will be relevant to reproduce the provisions of Section 80AC which debars the claim of deduction inter alia including deduction u/s 80IC: "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 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 deducti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tax (Appeals) has accepted the assessee's submission, that the delay in filing of return should not be a reason to deny the assessee's claim of exemption u/s 10B(1). However, the Ld. Commissioner of Income Tax (Appeals) has not considered the factual aspects of the merits of the case. Assessing Officer also disallowed the assessee's claim by stating that the return was filed on time. He also had not gone into the other aspects of the merits of the case. In this regard, we refer the decision of the Hon'ble Apex Court decision in the case of Kapurchand Shrimal v. CIT , 131 ITR 451 wherein it was held that the appellate authority has jurisdiction as well as the duty to correct the errors in the proceedings under appeal and to issue of nec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the claim of the assessee u/s 80IC cannot be denied simply for the reason that the return of income was not filed within the due date as prescribed u/s 139(1) by keeping in view the fact that the assessee had submitted the necessary documents with the department before the due date of filing the return and the default of the assessee was only a technical default. However, keeping in view the fact that the Assessing Officer has not examined the claim of the assessee on merits that whether or not the assessee is fulfilling the conditions laid down in Section 80IC, we restore the matter back to the file of Assessing Officer to examine that whether these conditions are satisfied by the assessee. Exactly similar position has been discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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