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TMI Blog2015 (4) TMI 1279X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter, this Court is of the considered view contention raised by Sri.S.Sriranga, learned counsel appearing for petitioner cannot be accepted and same stands rejected. Condonation of delay in filing the claim - Non filing of return of income along with auditor s report which ought to have accompanied such return of income, if filed either at a later stage or at any rate before framing of assessment proceedings it becomes a curable defect or return of income at the most such filing of return of income can be construed as an irregularity and not an illegality. In view of the same, contention of learned counsel for petitioner that return of income could not have been filed on or before 30.09.2009 cannot be accepted. Secondly, petitioner was in possession of statutory audit report as prescribed under Companies Act, since same had been obtained on 02.09.2009 itself and petitioner had also obtained tax audit report under Section 44AB on 30.09.2009. As such, only exercise which was required to be undertaken by the petitioner was to file return of income on 30.09.2009 and substantiate its claim during assessment proceedings by furnishing the report of the auditor in From No.10CCB. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken up for final disposal. 2. Petitioner who is an assessee under Income Tax Act, 1961 (hereinafter referred to as the Act for short) is carrying on the business of real estate, property developers and builders and as such, entered into a Joint Development Agreement along with Shriram Properties Pvt. Ltd. by a Joint Development Agreement dated 18.03.2004. For the assessment year 2009-10 return of income came to be filed on 30.03.2011. Said return of income not having been filed within prescribed time namely on or before 30.09.2009, benefit of deduction claimed under Section 80IB was rejected by Assessing Officer by interpreting Section 80AC of the Act and opining that Section 139(1) alone is applicable and Sub-Section (4) of Section 139 of the Act is not attracted to the facts and circumstances of case and as such, return of income having been filed belatedly petitioner is not entitled to claim deduction under Section 80IB of the Act. 3. In fact, petitioner had approached this Court in Writ Petition No.10798/2012 c/w Writ Petition Nos.46400-46858/2012 calling in question the vires of Section 80AC of the Act and the assessment order framed by fourth res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report under Rule 19BBB(1) and (2), particulars such as the constructed plinth area of the building, are of each flat after construction of the same can be given. This exercise is time consuming, the audit report in Form 10ccb was given by auditors on 25.03.2011 . It has however been noted that the statutory audit report as per company law was obtained on 2.9.2009 and tax audit report u/s 44AB on 30.09.2009. Since the books were statutorily audited twice, the books were complete and all documents were available with the assessee. 7.2 Further, the Bruhat Bangalore Mahanagara Palike (BBMP), Bangalore had issued the Building Completion Certificate as early as 30.12.2008. the assessee had enough time of 9 months from the date of issue (30.12.2008) of the Building Completion Certificate to the due dated (30.09.2009) of filing the return of income, to take measurement of flats constructed against the assessee s contention to have taken 27 months just for taking measurement which is unacceptable. Thus, the assessee has failed to submit any convincing argument show that the cause of delay in filing return of income was due to circumstances beyond the control of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assigned by petitioner / assessee for condonation of delay. Hence, he would contend that CBDT under Section 119(2)(b) and (c) of the Act ought to have condoned the delay in filing the return of income. On these grounds, he prays for writ petition being allowed and impugned order being set aside. 6. Per contra, Sri.E.I.Sanmathi, learned standing counsel appearing for Revenue would support the impugned order by contending that when Section 80AC indicates that Section 139(1) alone is applicable, reading of Section 139(4) into Section 80AC is impermissible. He would also draw the attention of Court to Section 10A and 10B of the Act to contend that Special Provisions which provides deduction of certain income under those provisions would also clearly indicate that such deduction would not be allowable to an assessee if such return of income is not filed on or before the due date as specified under Sub-Section (1) of Section 139 of the Act and as such, he contends that neither Sub-Section (4) of Section 139 can be held as applicable to return of income filed by an assessee claiming deduction under Section 80IA, 80IAB, 80IB, 80IC, 80ID or Section 80IE or Section 139(4) cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2011 rejected the claim for deduction on the ground that return of income was filed on 30.03.2011 and it was belated and not filed within the prescribed time limit namely, as prescribed under Section 80AC i.e., on or before 30.09.2009. 10. While construing fiscal statute and determining the liability of a subject to tax there has to be strict interpretation. It is not the function of court to search for the loop holes in the Section or to add words into Section or subtract the words into Section while interpreting fiscal statute. The true nature of provision has to be understood from the very provision itself without any addition or deletion. The Hon ble Apex Court in the case of THE MEMBER SECRETARY, ANDHRA PRADESH STATE BOARD OF PREVENTION AND CONTROL OF WATER POLLUTION VS. ANDHRA PRADESH RAYONS LTD. AND OTHERS reported in AIR 1989 SC 611 has observed as under: 6. It has to be borne in mind that this Act with which we are concerned is as Act imposing liability for cess. The Act is fiscal in nature. The Act must, therefore, be strictly construed in order to find out whether a liability is fastened on a particular industry. The subject is not to be taxed wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar relevant to the assessment year earned from such housing project. Said return of income was filed on 30.03.2011. The embargo placed under the Act to disallow or to disallow the deduction can be noticed from Section 80AC. It reads as under: 80AC. Wherein 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 deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139.] 12. A plain reading of above provision would clearly indicate that deduction claimed under Section 80IA would not be allowed to an assessee if return of income for such assessment year is not filed on or before the due dates as specified under Sub-Section (1) of Section 139 of the Act. Section 139(1) of the Act reads as under: 139. [(1) Every person, if his total income or the total income of any other person in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siding in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who [during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or] at any time during the previous year fulfils any one of the following conditions, namely :-- (i) is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or (ii) is the owner of the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or (iii) [***] (iv) has incurred expenditure for himself or any other person on travel to any foreign country; or (v) is the holder of a credit card, not being an add-on card, issued by any bank or institution; or (vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more, shall furnish a return, of his income [during any previous year ending before the 1st day of April, 2005], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er law for the time being in fore; or (iii) a working partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force, the [30th day of September] of the assessment year; (aa) in the case of an assessee [who] is required to furnish a report referred to in section 92E, the 30th day of November of the assessment year;] (b) in the case of a person other than a company, referred to in the first proviso to this sub-section, the 31st day of October of the assessment year; (c) in the case of any other assessee, the 31st day of July of the assessment year. Explanation 3 For the purposes of this sub-section, the expression travel to any foreign country does not include travel to the neighbouring countries or to such places of pilgrimage as the Board may specify in this behalf by notification in the Official Gazette.] [(1A) Without prejudice to the provisions of sub-section (1), any person, being an individual who is in receipt of income chargeable under the head Salaries may, at his option, furnish a return of his income for any previous year to his emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to deal with contention raised by learned counsel for petitioner namely that Section 139(4) of the Act would enable the assessee to file return of income beyond the period prescribed under Section 139(1) namely if it is not filed within the time allowed either under Sub-Section (1) of Section 139 or Sub-Section (1) of Section 142 and as such, SubSection (4) has to be read conjointly along with SubSection (1) of Section 139 of the Act. Though this argument at the first blush looks attractive, it cannot be accepted for reasons more than one. 14. Exemption provision has to be read strictly. A reading of Section 80AC would clearly indicate that when return of income is filed by an assessee under Section 139(1) and deduction is claimed under provision of Chapter VIA, such deduction would be disallowed under Section 80AC particularly in respect of deduction admissible under Section 80IA, 80IAB, 80IB, 80IC, 80ID or Section 80IE, unless such return of income is filed on or before due date specified under Sub-Section (1) of Section 139 of the Act. This embargo placed under Section 80A of the Act came to be inserted by Finance Act, 2006 with effect from 01.04.2006. Under Chapter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e xxxxxxxxx can be brought to charge. 15. In view of this finding recorded by the Full Bench of this Court petitioner is attempting to take an umbrage under it to contend that even in respect of Section 139 occurring elsewhere in the Income Tax Act it has to be held as imbedded with the provision of Section 139(4) also. While examining a provision under fiscal statute and that too exemption provision, the words found in that Section alone is to be looked into or examined and no other provision of the Act can be imported to be read along with said provision since Parliament has consciously omitted to include SubSection (4) of Section 139 of the Act by not inserting the said provision in Section 80AC, 10A or 10 B etc. In that view of the matter, this Court is of the considered view contention raised by Sri.S.Sriranga, learned counsel appearing for petitioner cannot be accepted and same stands rejected. 16. Yet another contention which has been raised is that petitioner / assessee pursuant to liberty granted by this Court had filed an application for seeking condonation of delay in filing the return of income and as such, Board ought to have condoned the delay by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und claim closely and come to a conclusion that the applicant s claim is bound to succeed.. This would amount to prejudging the case on the merits. All that the authority has to see is that on the face of it the person applying for refund after condonation of delay has a case which needs consideration and which is not bound to fail by virtue of some apparent defect. At this stage, the authority is not expected to go deep into the niceties of law. While determining whether a refund claim is correct and genuine, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence. 17. By relying upon the dicta laid down in above referred case Sri.Sriranga, learned counsel appearing for petitioner would contend that filing of return of income in the instant case being on 30.03.2011 was on account of report of auditor in Form No.10CCB having not been received by petitioner - assessee. He has also contended that return of income ought to have been accompanied with said report as contemplated under Rule 18 of Rules and as such return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of receipt of completion certificate i.e., 30.12.2008. In that view of the matter, finding recorded by Board at paragraph 7.1 and 7.2 of impugned order which is already extracted supra cannot be held as suffering from any illegality calling for interference at the hands of this Court. 19. That apart it requires to be noticed that law of limitation cannot be jettisoned on the ground of purported report ought to have been received by petitioner and as such, there has been delay in filing the return of income. Hon ble Apex Court in the case of LANKA VENKATESWARLU (DEAD) BY LRS vs. STATE OF ANDHRA PRADESH AND OTHERS reported in 2011 4 SCC 363 has held that concepts such as liberal approach , justice oriented approach , substantial justice , cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there in no justification for delay. 20. Keeping these contours in mind when facts on hand are examined it would indicate that provision of Section 80AC read along with Section 119(2)(b) and contentions urged in the facts and circumstances of the case it would clearly indicate that petitioner had all the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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