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TMI Blog2020 (6) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 80IAB of the Income Tax Act, 1961. Though the delay has not been properly explained, issue as to whether the petitioner was otherwise entitled to benefit of the deduction, but for failure to file such return would require examination independently.There is a genuine hardship as the petitioner failed to file return on time to avail the benefit of the deduction. By condoning the delay, the 2nd respondent would be merely allowing the Assessing Officer to examine the petitioner s claim for the benefit of deduction under Section 80IAB of the Act, on merits and nothing more. By permitting the Assessing Officer to scrutinize the Income Tax Return filed belatedly by the petition, the 2nd respondent is not really asking the Assessing Officer to straight away allow the benefit of deduction under 80IAB of the Act. Set aside the impugned order and direct the 1st respondent Deputy Commissioner of Income Tax to examine the claim of the petitioner on merits as to whether the petitioner was otherwise entitled to the benefit of deduction under Section 80IAB. - W.P.No.21829 of 2016 and W.M.P.No.18688 of 2016 - - - Dated:- 30-1-2020 - HONOURABLE MR. JUSTICE C. SARAVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction under Section 80IAB of the Income Tax Act, 1961, if the petitioner was otherwise entitled to such deductions. 10. The 2nd respondent has rejected explanation offered by the petitioner that its Chartered Accountant had given a wrong advice and therefore the petitioner could not file the returns on time, on the ground that the petitioner has not produced any document to substantiate. 11. Before the 2nd respondent, the petitioner relied on the decision of the Division Bench of the Bombay High Court in Bombay Mercantile Cooperative Bank Ltd vs. Central Board of Direct Taxes, (332) ITR 87 wherein, the court observed that the power to appoint a statutory Auditor was with the Central Registrar and the said Authority appointed a Chartered Accountant to be the statutory Auditor in place of the Department locked Auditors. This change was made in respect of all the societies and therefore the assessee could not be blamed for delay in carrying out its audit as it was beyond its control. 12. Heard and seen Mr.R.V.Easwar learned Senior Counsel, duly assisted by Mr.Rubal Bansal for Mr.P.Senthilkumar learned counsel for the petitioner and Mr.T.Promod Kumar Chopda, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and laymen, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given, must be treated as sufficient cause when an application under Section 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers. 7. We have clarified the legal position regarding the propriety and reasonableness of companies and other persons relying upon legal opinion in the matter of computation of limitation since it is a problem which may arise frequently. If Legal Adviser's opinions are to be subjected by company managers to further legal scrutiny of their own, an impossible situation may arise. Indeed Government, a large litigant in this country, may find its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner had availed the benefit of the said Section 80IAB of the Act for the Assessment Years 2009-10, 2010-11 and 2011-12 and orders were passed for these Assessment Years on 16.12.2011, 18.3.2013 and on 29.3.2014 respectively allowing the deduction under the aforesaid provision, to the petitioner. 16. Per contra, the learned counsel for the respondents submits that the petitioner was not been diligent in filing the return within the time limit. Therefore, the order passed by the 2nd respondent Central Board of Direct Taxes cannot be quashed. He further submits that the petitioner has been negligent in not filing the return in time and has not filed any documents to substantiate that such an advice was issued by the Chartered Accountant asking the petitioner not to file the return in time on 30.09.2012 for the Assessment Year 2012-13 and on 31.12.2013 for the Assessment Year 2013-14. 17. He further submits that delay in filing the return for a period of 14 and 5 months for the Assessment Years 2012-13 2013-14 respectively, cannot be taken lightly. He therefore submits that the 2nd respondent has correctly rejected the application filed by the petitioner for condoning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avail the benefit of deduction under Section 80IAB of the Income Tax Act, 1961, an assessee also has to comply with the requirements of provisions of Sub-Section (5) and Sub-Section (7) to (12) of Section 80IAB of the Act. 24. As per Sub-Section (7), the deduction is not admissible unless the accounts of the undertaking for the previous year relevant to the Assessment Year for which the deduction is claimed have been audited by an accountant as defined in Explanation below Sub-Section (2) of Section 288 and the assessee furnishes along with the return of income, the report of such audit in the prescribed form duty signed and verified by such accountant. 25. As the Assessing Officers are not empowered under the Act to condone the delay in filing the returns, therefore, power has been vested with the 2nd respondent Board under Section 119(2)(b) of the Income Tax Act, 1961, to condone such delay. 26. Power is invested with the 2nd respondent under Section 119(2) of the Income Tax Act, 1961, to pass appropriate orders by directing the Income Tax Authority other than Commissioner of Income Tax (Appeals), to admit an application or claim for exemption, deduction, refund or any ..... 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