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TMI Blog2013 (8) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... y, therefore, this Form ITR-V was manually signed by the assessee and as at that point of time as per the note appended to the Form No. ITR-V itself the signed Form ITR-V was to be sent by ordinary post only, the assessee sent the same by ordinary post. The assessee, thereafter wanted to file a revised return by claiming deduction u/s. 80IA of the Act which it has not claimed in the original return filed, it came to know that the ITR-V signed by the Director of the assessee which was sent by the assessee was not received by the Department. The assessee, therefore, filed the revised return on 29.3.2011 under Acknowledgement No. 206784891290311 as an original return because the computer was not accepting the revised return. In this return, the assessee had claimed deduction u/s. 80IA for ₹ 29,43,401/-. He submitted that the Assessing Officer rejected the original return filed by the assessee on the ground that no signed copy of ITR-V was filed by the assessee and treated the return subsequently filed on 29.3.2011 as the original return of the assessee. He disallowed the claim for deduction u/s. 80IA of the Act to the assessee on the ground that as per section 80AC of the Act wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the Hon'ble Bombay High Court in the case of Prime Securities Ltd. vs. ACIT [2009] 182 Taxman 221 (Bom.) and submitted that in that case the Hon'ble High Court has held that a bare reading of the provisions of section 292B makes it clear that a return of income shall not be treated as invalid merely by reason of any mistake, defect or omission in such return of income, if such return of income is in substance and effect in conformity with or according to the intent and purpose of the Act. The Hon'ble High Court also observed that the test to be applied is whether on the date the original return was filed, the return was in conformity with or according to the purpose of the Act. It is true that the return was invalid as originally filed because of defect in the person signing the return, but by virtue of section 139(9) that defect could be cured and was, in fact, cured. He thus submitted that the defect in the case of the assessee was also a curable defect. 6. He further relied on the decision of the Hyderabad Bench of the Tribunal in the case of ITO vs. S. Venkataiah, [2012] 22 taxmann.com 2 (Hyd.) and submitted that the Tribunal in that case has held that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn is not complete and cannot be accepted by the Department. He submitted that any person by quoting the PAN of the assessee can electronically upload various data of income of the assessee on which the Department cannot act until and unless it has the verification of the assessee because the assessee will deny the contents of such return having been filed by it. 9. He further submitted that the Hon'ble Bombay High Court in the case of M/s. Crawford Bayley (supra) has stated that the assessee has furnished adequate material before the court in support of its contention that having filed the return electronically and it had also submitted ITR-V Form by ordinary post. He submitted that in the instant case, the assessee has not filed any evidence to show that Form ITR-V was filed by the assessee to the Department as will be observed from para 7 of the order of the ld. CIT(A) wherein the ld. CIT(A) has observed that the Assessing Officer has examined this issue during scrutiny at length and has made a finding that the appellant has filed return of income only on 29.3.2011. He argued that even before the Tribunal the assessee has not placed any evidence of filing Form ITR-V on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt sent the verification form by ordinary post. No notice to remove the defect, if any, in the original return was served upon the assessee and therefore, the Department was not justified in treating the return filed on 29.9.2009 as 'no return'. For the above contention, he placed reliance on the decision of the Hon'ble Bombay High Court in the case of M/s. Crawford Bayley (supra). He further contended that in any view of the matter, as the substantial compliance with the provisions of law was made by the assessee, the denial of deduction u/s. 80IA on a very technical ground was not justified for which he placed reliance on the decision of the Hon'ble Supreme Court in the case of Collector Land Acquisition, Anantnag Anr. vs. MST Katiji Ors. (supra). 13. On the other hand, the ld. DR contended that the decision in the case of M/s. Crawford Bayley(supra) is not applicable in the instant case as in the case before the Hon'ble Bombay High Court the assessee produced evidence to show that verification was dispatched by ordinary post whereas in the instant case, no such evidence was produced. 14. In the rejoinder, the ld. A.R of the assessee pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated the interest. He submitted that the argument of the assessee is that as the return was filed in time by the assessee and acknowledgement for filing of the return was also sent by ordinary post as per instructions of the Department, therefore, the assessee was not liable to interest u/s. 234A of the Act. 18. The ld. A.R of the assessee relied on the decision of the Hon'ble Supreme Court in the case of CIT vs. Pranoy Roy and Another, [2009] 309 ITR 231 (S.C.) and submitted that the Hon'ble Supreme Court has held that where the tax already paid by the assessee was not less than the tax payable on the returned income which was accepted, the question of levy of interest u/s. 234A did not arise. 19. He further relied on the decision of the Hon'ble Delhi High Court in the case of Dr. Prannoy Roy vs. CIT, [2002] 121 Taxman 314 (Delhi) wherein it was held that in the instant case tax has been paid although no return had been filed. The Revenue, therefore, had not suffered any monetary loss. Therefore, in the instant case, if the doctrine of purposive construction was not taken recourse to, the same would betray the purport and object of the Act. The Hon'ble High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f interest does not arise. Thus, we find no merit in this appeal and the same is dismissed. 24. We, therefore, set aside the orders relating to charging of interest u/s. 234A, 234B 234C and restore the matter back to the file of the Assessing Officer with the direction to recompute the same keeping in view the decision of the Hon'ble Supreme Court extracted hereinabove and as per provisions of law. Thus, the ground of appeal of the assessee is allowed for statistical purposes. 25. In the Revenue's appeal, the only issue involved is that the ld. CIT(A) erred in deleting the disallowance u/s. 14A r.w. Rule 8D. 26. The ld. DR submitted that during the year under consideration the assessee has earned dividend income of ₹ 1,96,15,132/- and claimed the same as exempt u/s. 10(34) of the Act. He submitted that the assessee, in the return of income, has disallowed 2% of the dividend income amounting to ₹ 3,92,303/- as expenditure incurred for earning of the dividend income. The Assessing Officer was not satisfied with the expenditure of ₹ 3,92,303/- claimed to have been incurred for earning of dividend income for the reason that the assessee had incurred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed. Therefore, it becomes clear that even in a case where the assessee claims that no expenditure was so incurred, the statute has provided for a presumptive expenditure which has to be disallowed by force of the statute. In a distant manner, literally speaking, it may even be considered for the purpose of convenience as a deeming provision. When such deeming provision is made on the basis of statutory presumption, the requirement of factual evidence is replaced by statutory presumption and the Assessing Officer has to follow the consequences stated in the statute. It means that even in a case where no expenditure is stated to have been incurred, the assessing authority has to apply Rule 8D. As the statutory presumption substitutes the requirement of factual evidence, the question of enquiry does not arise. Therefore, we are unable to agree with the argument of the learned CA. 28. On the other hand, the ld. A.R of the assessee relied on the decision of the Hon'ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd. (supra) and submitted that the Hon'ble High Court has held that the satisfaction envisaged in sub-section (2) of section 14A is objective sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2006 had brought in the provisions of Section 14A(2) which requires the Assessing Officer to determine the expenses already relating to an exempt income in accordance with Rule 8D. Reliance is placed on the decision of the Bombay High Court in the case of Godrej Boyce vs. DCIT, wherein it has been held that disallowance under Rule 8D r.w.s 14A(2) is fair and reasonable . Therefore, the Assessing Officer determined ₹ 32,42,119/- as disallowable u/s. 14A r.w. Rule 8D. 30. On appeal, the ld. CIT(A) deleted the above disallowance on the ground that the Assessing Officer has brought no material to show that interest bearing funds were utilized for making investment giving rise to exempt income. 31. Before us, the ld. DR submitted that the assessment year involved is 2009-10 and therefore, the Assessing Officer was justified in determining the amount disallowable u/s. 14A as per Rule 8D. 32. On the other hand, the ld. A.R of the assessee relied upon the decision of the Hon'ble Bombay High Court in the case of Godrej Boyce Mfg. Co. Ltd(supra) and submitted that as the Assessing Officer could not point out any defect in the amount of ₹ 3,92,303/- claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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