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TMI Blog2019 (11) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... now Bench of the Tribunal while allowing the deduction under section 80IB of the Act to the assessee in the assessee s own case for assessment year 2011-12. Since the allowability of deduction under section 80IB of the Act has been considered by the Tribunal in the assessee's own case, on facts exactly similar, mutatis mutandis, to those present for the year under consideration, for assessment year 2011-12 and the Tribunal has decided the issue in favour of the assessee, vide order dated 30/10/2018, following the view taken by the Lucknow Bench of the Tribunal in the assessee's own case (supra), we confirm the order of the ld. CIT(A), cancelling the rectification order passed by the Assessing Officer under section 154 of the Act. Accordingly, all the grounds taken by the Department in its appeal are rejected. - ITA No.183/LKW/2019 - - - Dated:- 8-11-2019 - Shri. A. D. Jain, Vice President And Shri T. S. Kapoor, Accountant Member For the Appellant : Shri S. K. Madhuk, D.R. For the Respondent : Shri P. K. Kapoor, C.A. ORDER PER A. D. JAIN, V.P.: This is Revenue s appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional bench of the Supreme Court in case of Commissioner of Customs Mumbai Vs M/s Dilip Kurhar Company in civil appeal no 3327 of 2007. 5. That the order of the Ld. CIT (A) being erroneous on facts of the case and liable to be set aside and that the order of AO may be restored. 2. The brief facts of the case are that in this case the assessment was completed under section 143(3) of the Act on 31/3/2015 at a total income of ₹ 10,05,45,770/-, making various disallowances/additions and also allowing deduction under section 80IB of the Act. Later on, according to the Assessing Officer, the deduction allowed under section 80IB of the Act was in contravention to the provisions of section 80AC of the Act, therefore, he rectified his order dated 31/3/2015 by passing an order under section 143(3)/154 of the Act, dated 8/9/2016, thereby disallowing the deduction under section 80IB of the Act at ₹ 8,21,48,868/-. 3. Aggrieved by the order of rectification passed by the Assessing Officer under section 143(3)/154 of the Act, dated 8/9/2016, the assessee preferred an appeal before the ld. CIT(A), who allowed the appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the ld. CIT(A), following the judgment of the Hon'ble Kerala High Court in Chirakkal Services Co-operative Bank vs. CIT (supra) and also the decision of the Lucknow Bench of the ITAT in ITA No.589/LKW/2016 in the assessee s own case for the preceding assessment year, i.e., 2011-12, has decided the issue on facts exactly similar in favour of the assessee. Therefore, no interference is called for in the order of the ld. CIT(A), who has rightly cancelled the rectification order, dated 8/9/2016, passed by the Assessing Officer under section 143(3)/154 of the Act. 6. Heard. We find that the assessment, in the case of the assessee, for the year under consideration, was completed under section 143(3) of the Act on 31/3/2015 at a total income of ₹ 10,05,45,770/-, making various disallowances/additions and also allowing deduction under section 80IB of the Act, and later on, he rectified his earlier order dated 31/3/2015, by passing an order under section 143(3)/154 of the Act, dated 8/9/2016, disallowing the deduction under section 80IB of the Act. The ld. CIT(A), vide his order, dated 12/12/2018, passed under section 250(6) of the Act, cancelled the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act of 2006 with effect from 1.4.2006. This clearly evidences the legislative intendiment that the inhibition contained in subsection 5 of section 80A would operate by itself. In cases where returns have been filed, the question of exemptions or deductions referable to section SOP would definitely have to be considered and granted if eligible. 20. Here, questions would arise as to whether belated returns filed beyond the period stipulated under section 139(1) or section 139(4) as well as following sections 142(1) and 148 proceedings could be considered for exemption. If those returns are eligible to be accepted in terms of law, going by the provisions of the statute and the governing binding precedents, it goes without saying that the claim for exemption will also stand effectuated as a claim duly made as part of the returns so filed, for due consideration. 21. When a notice under section 142(1) is issued, the person may furnish the return and while doing so, could also make claim for deduction referable to section SOP. Not much different is the situation when pre-assessment enquiry is carried forward by issuance of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim deduction as the provisions of Section 80AC of the Act are directory in nature and provisions of Section 80IC of the Act being incentive provisions has to be interpreted in a manner so as to advance the objects of economic activities in the country and not to deny the claim merely on technical grounds. Therefore, in that case, for the return filed u/s 139(4), it is held that assessee would be eligible for claiming deduction u/s 80IC. The relevant observations from that decision are reproduced below: 54. The third issue four our consideration is whether in view of the provision of section 80AC, the assessee is entitled to deduction u/s 80IC on account of late filing of return. Section 80AC reads as under: Deduction not to be allowed unless return furnished. 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 20 April, 2006 or any subsequent of assessment year, any deduction is admissible under section 80IA or section 80IAB or section 80IB or section 80IC [ or section 80ID or section 80IE], no such deduction shall be allowed to him u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the period stipulated under subsection (1) or (4) of section 139; and, which are returns filed after the period with reference to sections 142(1) and 148 of the IT Act, deduction cannot be disallowed on the ground that return was not filed within the stipulated period prescribed under section 139(1). Their Lordships in that case compared the provisions of 80A(5) with the provisions contained in Section 80AC and have reached a conclusion that in a case where return is filed even u/s 148, the claim of the assessee for deduction has to be considered and allowed. Reference in this regard can be made- to the relevant observations regarding questions of law and the decision rendered thereon in the said case, which are as under: (B) Whether the Tribunal is justified in denying the exemption under section 80P of the Income Tax Act, 1961, the mere ground of belated filing of return by the assessee? (C) Whether a return filed by the assessee beyond the period stipulated under section 139(l)/(4) or section 142(1)/148 can be held as non est in law and invalid for the purpose of deciding exemption under section SOP of the Income Tax Act, 1961? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80AC are directory in nature and if the return is filed by the assessee under either of the Sections 139(1), 139(4), 24 142(1) and 148, then the assessee would be entitled to claim deduction. 11. Further, we find that Hon'ble Calcutta High Court in the case of Shelcon Properties (P) Ltd., (supra) has held that the benefit under section 80IB(1) of the Income Tax Act, 1961 can only be availed in those cases where the return had been filed within the period. When the provision, is that the benefit cannot be claimed if the return has not been filed on or before the prescribed date, it is a mandatory direction, which prescribes the consequence of omission to file the return on time. The benefit can only be availed of by the assessee, if he has filed his return of income on time. 12. Thus, from the contrary decisions quoted above, it is observed that the issue whether deduction is allowable to the assessee u/s. 80IB of the Act where the return is not filed within the time prescribed u/s. 139(1) of the Act is highly debatable. Where the issue is highly debatable, the same cannot be rectified by the Assessing Officer by passing an order u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds Ltd. v. ACIT) and the decision dated 30th January 2015 of the ITAT Mumbai Bench in ITA No. 4727/Mum/2012 (Dwarkadas Panchmatiya v. ACIT). 8. Mr Salil Aggarwal, learned counsel for the Assessee, on the other hand, has placed reliance on the decisions of this Court in CIT v. Integrated Databases (I) Ltd. (2009) 178 Taxman 432 (De!) and CIT v. Centimeters Electricals (P) Ltd. (2009) 178 Taxman422 (Del). He also placed reliance on the decision dated 26th June 2013 of the Andhra Pradesh High Court in ITTA No. 114 of 2013 (CIT v. Sri S Venkataiah), the decisions dated 29th April 2013 of the ITAT Madras in ITA No. 1214/Mds/2012 (ACIT v. Precot Meridian Ltd.) and 4th February 2013 in ITA No. 1219-1223/Mds/2012 (ACIT v. V.N. Devadoss), the decisions of the ITAT Delhi dated 30th July 2010 in ACIT v. Dhir Global Industrial (P) Ltd. 133 TTJ (Del) 580 and dated 25th January 2012 in ITA No. 3352/Del/2011(Hansa Dalakoti v. ACIT), the decision of the Bangalore ITAT dated 12th April 2103 in M/s Vanshee Builders Developers P. Ltd. v. CIT 63 SOT 30 and the decision of the Kolkata ITAT dated 19th April 2013 in ITA No. 1586/Kol/2012 (M/s Properties (P) Ltd. v. JOT). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has been upheld by the ld. CIT(A) and the Tribunal vide its order dated 30/10/2018, relying on various case laws, cancelled the rectification order passed under section 154 of the Act and allowed the appeal of the assessee, holding that the Assessing Officer had no jurisdiction to pass order under section 154 of the Act. 8. The main grievance of the ld. D.R. with regard to the allowability of deduction under section 80IB of the Act, subject to filing of return within the time prescribed under section 139(1) of the Act, has been considered by the Hon'ble Kerala High Court in the case of Chirakkal Services Co-operative Bank vs. CIT (supra), and allowed deduction claimed by the assessee, albeit under section 80P of the Act, on which judgment reliance has been placed by the Lucknow Bench of the Tribunal while allowing the deduction under section 80IB of the Act to the assessee in the assessee s own case for assessment year 2011-12. 9. Since the allowability of deduction under section 80IB of the Act has been considered by the Tribunal in the assessee's own case, on facts exactly similar, mutatis mutandis, to those present for the year u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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