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TMI Blog2016 (9) TMI 992X X X X Extracts X X X X X X X X Extracts X X X X ..... sallowed under section 143(1) of the Act merely in view of the provisions of section 80C of the Act. We also find on a perusal of the provisions of section 143(1) of the Act, that the AO’s action in disallowing the assessee’s claim for deduction under section 80IB(10) of the Act, since the return of income was filed beyond the period stipulated under section 139(1) of the Act in view of the provisions of section 80AC, is beyond the scope of section 143(1) since there is neither an arithmetical error nor an incorrect claim apparent from the record. In this view of the matter, we uphold the finding of the learned CIT(A) that the AO was not justified in disallowing the assessee’s claim for deduction under section 80IB(10) of the Act and his direction to the AO to delete the disallowance thereof, made under section 143(1)(a)/143(1) of the Act. - Decided in favour of assessee. - ITA No. 7718/Mum/2014 - - - Dated:- 10-8-2016 - Shri Jason P. Boaz, Accountant Member and Shri Sandeep Gosain, Judicial Member For The Appellant : Shri A.K. Dhondial For The Respondent : Shri Vijay Mehta ORDER Per Jason P. Boaz, A.M. This appeal by Revenue is directed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd interpretation in various judgements, the learned CIT(A) held that the disallowance of the assessee s claim for deduction under section 80IB(10) read with section 80AC of the Act on the ground that the return of income was filed beyond the time permitted under section 139(1) of the Act was not within the scope of section 143(1) of the Act and, therefore, the Assessing Officer (AO) was not justified in denying the assessee its claim for deduction under section 80IB(10) thereunder. In that view of the matter, the learned CIT(A) directed the AO to delete the disallowance of the assessee s claim for deduction under section 80IB(10) of the Act and thereby allowed the assessee s appeal. 3.1 Aggrieved by the order of the CIT(A)-1, Thane dated 04.09.2014, Revenue has preferred this appeal raising the following grounds: - 1. Whether on the facts and in the circumstances of the case and in law, the Hon'ble CIT(A) erred in allowing the deduction claimed u/s 80IB(10)) of the I.T. Act made u/s 143(1)(a) on the contravention of section 80AC of the Act. 2. The appellant craves leave to add, amend alter or delete any grounds of appeal. 3.2 The learned D.R. for Revenue wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal be upheld. 3.4.1 We have heard the rival contentions of both the parties and perused and carefully considered the material on record, including the judicial pronouncements cited. In the impugned order, the learned CIT(A) has held as under at paras 6 to 11, while allowing the assessee s appeal: - 6. I have carefully considered the appellant's submissions and the facts of the case. It has been submitted by the appellant that the disallowance of deduction u/s. 801B(10) on the ground that the return of income was filed beyond the due date as prescribed u/s. 139(1) in terms of provisions of section 80AC, is beyond the scope of section 143(1) of the I.T. Act. The disallowance made u/s. 143(l) was neither in the nature of arithmetical error nor an incorrect claim apparent from information in the return. In this regard, the relevant provisions of section 143(1) are reproduced as under for ready reference - 143. [(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in the following manner, namely:- (a) the total income or loss shall be computed after making the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er words, if a return is filed within the time specified in sub-s. (4) of s. 139 of the Act and the option contemplated by the Explanation to s. 11(1) is exercised in writing along with such return, requirements of the Explanation to s. 11(1) would stand satisfied. 6. Similar controversy came up before the Supreme Court in CIT vs. Kulu Valley Transport Co. Pvt. Ltd. (1970) 77 ITR 518 (SC). In that case, a dispute arose in regard to the right of an assessee to get the benefit of losses being set off and carried forward under s. 24(2) of the IT Act, 1922 which provided that in order to get the benefit of s. 24(2), the assessee must submit his loss return within the time specified by s. 22(1) (corresponding to s. 139(1) of 1961 Act.] Sec. 22(3) of the 1922 Act [corresponding to s. 139(4) of 1961 Act] enabled the assessee who had not furnished his return within the time allowed under sub-s. (1) or sub-s. (2) of s. 22 to furnish it at any time before the assessment was made. The assessee submitted its return within the time specified in s. 22(3). It was not accepted as a valid return for the purpose of s. 22A to enable the assessee to carry forward the losses. The Supreme Court di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar issue was also considered by the Hon'ble Jurisdictional High Court in the case of Trustees of Tulsidas Gopalji Charitable Chaleshwar Temple Trust V/s CIT [1994] 207 ITR 368 (BOM) and the jurisdictional High Court held that subsection (1) and (4) of section 139 have to he read together in such a reading the return made within the specified time under sub-section (4) has to be considered as having been made within the time prescribed u/s. 139(1) or (2) of the Act. The ld CIT(4) also relied on the decisions of other High Courts, which we do not propose to refer to, particularly when the decision of the Hon'ble Bombay High Court has been considered hereinabove. However, it is relevant to state that the ITAT, Ahmadabad Bench also considered similar issue in the case of Parmeshwar Cold Storage P. Ltd. V/s ACIT (08 1TR (Trib) 172 (Ahmd) in the context of claim of deduction u/s. 80IB wherein also the return was not .filed within the time prescribed u/s. 80AC of the Act but the Tribunal held that the claim of deduction u/s. 80IB of the Act should be adjudicated on merits and the matter was restored to CIT(A). The ld. CIT(A) has in para 9 also considered the decision of ITAT, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the deduction u/s. 80IB(10) of the I.T. Act made u/s 143(1)(a). . 3.4.2 On an appreciation of the findings rendered by the learned CIT(A) while allowing the assessee s appeal (supra), we observe that the learned CIT(A) has considered at length the issue of whether the AO s disallowance of the assessee s claim for deduction under section 80IB(10) of the Act, for the reason that the return of income for A.Y. 2012-13 was filed beyond the due date stipulated under section 139(1) of the Act (but was filed within the time allowed under section 139(4) of the Act), in view of the provisions of section 80AC of the Act is beyond the scope of the provisions of section 143(1) of the Act. We concur with the view of the learned CIT(A) that as per the ratio of the decisions of the Hon'ble Bombay High Court in Trustees of Tulsidas Gopalji Charitable Chaleshwar Temple Trust (supra) and of the Coordinate Bench n the Yash Developers (supra), even in cases where the return of income is filed beyond the due date stipulated under section 139(1) of the Act, the deduction should not be disallowed under section 143(1) of the Act merely in view of the provisions of section 80C of the Act. We ..... X X X X Extracts X X X X X X X X Extracts X X X X
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