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TMI Blog2019 (10) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... kumar Singh ORDER PER SAKTIJIT DEY, J.M. Captioned appeal by the assessee is against order dated 15th January 2016, passed by the learned Commissioner of Income Tax (Appeals)-2, Aurangabad, for the assessment year 2012-13. 2. The grievance of the assessee in the present appeal is with regard to the disallowance of deduction claimed under section 80IB(10) of the Income-tax Act, 1961 (for short "the Act"). 3. Brief facts are, the assessee, a partnership firm, is engaged in the business of builders and developers. While pursuing such activity, the assessee had undertaken construction of a housing project at Akash Ganga Complex, Ghodbunder Road, Thane (West). For the assessment year under dispute, the assessee filed its return of income on 31st March 2013, declaring nil income after claiming deduction under section 80IB(10) of the Act. In the course of assessment proceedings, the Assessing Officer while examining assessee's claim of deduction under section 80IB(10) of the Act, having found that conditions of section 80AC of the Act have been violated, issued notice requiring the assessee to show cause as to why the deduction claimed under section 80IB(10) of the Act sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of deduction should not be disallowed due to technical lapse. In support of such contention, he relied upon the following decisions:- i) Tulsidas Gopalji Charitable & Chaleshwar Temple Trust v. CIT, [1994] 207 ITR 368 (Bom); ii) ITO v/s Yash Builders, ITA no.809/Mum./2011, 31.01.2014; and iii) Anand Shelters Developers and Builders Pvt .Ltd. v/s ACIT, ITA no.1606/Pun./2016, dated 20.10.2017. 6. The learned Departmental Representative strongly relying upon the observations of the Assessing Officer and learned Commissioner (Appeals), submitted, the provision of section 80AC of the Act is mandatory and not directory. If the assessee does not fulfill the condition of section 80AC of the Act, deduction claimed under section 80IB(10) of the Act cannot be allowed. The learned Departmental Representative submitted, the fact that the provision of section 80AC of the Act is mandatory has been upheld by the Hon'ble Calcutta High Court in CIT v/s Shelcon Properties Pvt. Ltd., 370 ITR 305 (Cal.). Further, he submitted, when the language used in the provision is plain, simple and unambiguous, it cannot be interpreted in a different manner to provide benefit to the assessee. He submitte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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." 9. As per the aforesaid provision, no deduction under certain provisions, including section 80IB of the Act, would be allowable to the assessee for any assessment year commencing on/or after first day of April 2006, unless, he furnishes return of income for such assessment year on/or before the due date specified under sub-section (1) of section 139 of the Act. Admittedly, in the facts of the present case, the assessee has not furnished its return of income for the impugned assessment year within the due date prescribed under section 139(1) of the Act. While the Departmental Authorities have rejected assessee's claim of deduction under section 80IB(10) of the Act due to non-fulfillment of the condition of section 80IC of the Act, it is the claim of the assessee that the condition imposed under section 80AC of the Act is directory and not mandatory. Therefore, if the assessee files the return of income within the time permitted under sub-section (4) and (5) of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statute. Strictly, one has to look to the language used. There is no room for researching intendment or drawing any presumption. Furthermore, nothing has to be read into nor anything to be employed other than essential inferences while considering a taxation statute. 11. After deliberating upon the ratio laid down in various decisions, the Hon'ble Supreme Court observed, while interpreting the taxing statute, if there is any ambiguity with regard to the charging provisions the benefit must necessarily go in favour of subject/assessee, but, in case of any ambiguity in exemption notification, benefit of doubt must go in favour of the Revenue and such exemption should be allowed to be availed only to those subjects / assessees who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and the person claiming the benefit of such notification must satisfy all the conditions precedent for availing exemption. The question whether a particular subject falls within the exemption clause has to be strictly construed. Once, the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n contained under the proviso to section 10A(1A) of the Act has held that the condition imposed requiring furnishing of return of income within the due date prescribed under section 139(1) of the Act for availing deduction is mandatory. It is relevant to observe, the Hon'ble Delhi High Court in CIT v/s Unitech Ltd., ITA no.236/2015, dated 5th October 2015, while considering somewhat a similar issue relating to interpretation of section 80AC, has observed that while the decisions of the Hon'ble Calcutta High Court in Shelcon Properties Pvt. Ltd. (supra) and of the Hon'ble Uttarakhand High Court in Umeshchandra Dalakot (supra) are directly on the issue and support the case of Revenue that section 80AC of the Act is mandatory, but, the Court observed that the decision of the Hon'ble Andhra Pradesh High Court in S. Venkataiah (supra) was one declining to frame a question of law thereby affirming the order of the Tribunal. Thus, ultimately the Hon'ble Delhi High Court left open the issue whether the provision of section 80AC of the Act is directory or mandatory. It is to be noted that the Tribunal, Pune Bench, primarily proceeded on the basis that if there are two conflicting views on a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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