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TMI Blog2022 (5) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia [ 2019 (6) TMI 484 - BOMBAY HIGH COURT] holds that such a failure on the assessee s part is indeed very fatal to its deduction claim. We adopt stricter interpretation in light of Commissioner of customs V/s Dilip Kumar (2018) 9 SCC 1(SC)[ 2018 (7) TMI 1826 - SUPREME COURT] to affirm CIT(A) s finding under challenge. Decided against assessee. - ITA No.3083/PUN/2017 - - - Dated:- 10-5-2022 - Shri S.S.Godara, JM And Shri Dr. Dipak P. Ripote, AM For the Assessee : Shri Kishor B. Phadke For the Revenue : Shri S. P. Walimbe ORDER PER S. S. GODARA, JM : 1. This assessee s appeal for A.Y. 2014-15 is directed against the CIT(A) - 8, Pune s order dated 27/10/2017 passed in case No. PN/CIT(A) -8/ACIT, Cir 10/741/2017-18/301 involving proceeding u/s. 143(3) of the Income Tax Act, 1961 ; in short the Act. Heard both the parties. Case file perused. 2. Coming to the assessee s sole substantive grievance raised herein that both the lower authorities erred in law and on facts in disallowing its deduction claim u/s 80IA of the I.T. Act amounting to Rs.14,96,121/-. Mr. Phadke took us to the CIT(A) s detailed discussion affirming the Assessing Officer s acti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant. The CBDT Circular relied upon by the appellant, is dated 11/04/1955, hence it is a very old Circular, and various cases have been decided since then, regarding the admissibility of claims which are otherwise not made in the ROI. One such case is that of Hon'ble Supreme Court in the case of Goetze India Ltd (Supra) wherein the Hon'ble Apex Court has clearly held that the AO is not empowered to entertain claims that are not made in the ROI or in the revised ROI. Hence the AO has rightly relied upon the case of Goetze India Ltd. in not admitting the claim of the appellant. Moreover, the CBDT Circular relied upon by the appellant is only advisory and advises the AOs to provide necessary guidance to the assessees for making eligible claims. The AO's are expected to bring to the notice of the assessees the correct law and procedures to help them make eligible claims. The Circular by no means expects the AO to go beyond the prescribed procedures and statutory provisions, to allow relief to the assessees, as and when claimed by them. As per the Circular, the AO could have, at best, guided the appellant to file a revised ROI to stake a the claim u/s. 80IB(4). But from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the course of the assessment proceedings, the ITO was obliged to entertain it and consider it on merits. However, the said judgment is dated 30/01/1987 and therefore cannot be considered in the light of the judgment of the Hon'ble Supreme Court in case of Goetze India Ltd. dated 24/03/2006. d) Steel Ingots V/s. CIT, 86 Taxman 440 (MP) The said case deals with admittance of additional ground on the point of law before the Tribunal. It was held that if a legal ground is raised before the Tribunal, the Tribunal is bound to admit the same. The case has nothing to do with admittance of a new claim made before the AO during assessment proceedings. The appellant has relied upon the ratio laid down in this case that The eventual destination of every litigation is justice, and as such technicality should not be permitted to prevail as speed breaker in the course of dispensation of justice . However, the said ratio will not be applicable to the AO in the light of the decision of Hon'ble Supreme Court in the case of Goetze India Ltd. (Supra). Moreover, the said judgment relied upon is dated 06/02/1996 which is much before the case of Goetze India (supra). e) CIT V/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO can be admitted at appellate stage, it also observed that the appellate authority can exercise its discretion in admitting the claim depending on the facts of each case. In para 15 of its order the Hon'ble Court observed that 15. It is indeed a question of exercise of discretion whether or not to allow an assessee to raise a claim which was not raised when the return was filed or the assessment order was made. As held by the Supreme Court there may be several factors justifying the raising of a new plea in appeal and each case must be considered on its own facts. 11. Hence the order of Hon'ble High Court in the case of Pruthvi Developers does not give a blanket direction that in each and every case the appellate authority shall admit the claim of the assessee raised for the first time. It gives discretion to the appellate authority to examine the claim of the appellant on the basis of facts and law and thereafter take a call whether it should be admitted or not. Accordingly the alternative plea of the appellant will be considered after examining the facts and law applicable to the case. 12. It is an undisputed fact that the claim for deduction u/s 80I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o to section 139(1), ensures that returns claiming deduction under chapter VIA, must be filed within the time specified u/s 139(1) of the Act. The intent here is, that the claim must be made within the specified time, for it to become eligible. If the claim is not made within the due date, by not including it in the ROI, then filing such ROI (without the claim), within the stipulated time, is of little relevance. Therefore, the focus of section 80AC is on ensuring a timely claim, by filing a timely return. The legislative intent behind introducing section 80AC and 4th proviso to section 139(1), simultaneously, w.e.f 01.04.2006, is to impose stringent guidelines on the assessees, claiming deduction u/s 80IA to 80IE, to file their ROI containing the claim, on or before the due date prescribed u/s 139(1), for the claim to become eligible. 15. In the light of the discussion above, what has to be seen is whether the relevant claim has been made within the stipulated time, by filing the ROI containing the said claim, u/s 139(1) of the Act. The answer in the present case is NO. The appellant has not made the claim within the stipulated time as it has failed to include the same in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Profit and loss account of the said industrial undertaking or enterprise for the year ended on that date which are in agreement with the books of account maintained at the head office at above address and branches at NA. We have obtained all the information and explanations which to the best of our knowledge and belief were necessary for the purpose of the audit, in our opinion, proper books of account have been kept by the head office and the branches of the industrial undertaking or enterprise aforesaid visited by us so far appears from our examination of books, and proper returns adequate for the purposes of audit have been received from branches not visited by us, subject to the comments given below:- (i) The company has divided its windmill income by dividing windmills into separate divisions on the basis of Geographical locations. (ii) The companies manger has opted Financial year 2009-10 as the Initial assessment year under section 80IB with respect to all windmill divisions, however section 80IA restricts the claim to 15 years from the date the respective project was commissioned, hence the last eligible year for claiming deduction U/s 80/A deduction with respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson in respect of which he is assessable under this Act during the previous year, without giving effect to the provisions of section 10A or section 10 B or section 10 BA or Chapter VI-A exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed.] --------------------------------------- 9. Inserted by the Finance Act, 2005 w.e. f. 1 -4-2006. 12. If section 80AC of Income-tax Act is read with conjunction with the above referred proviso to Sec. 139(1) of Income-tax Act, it becomes clear that for making claim u/s. 80IA of Income-tax Act w.e.f. A.Y. 2006-07, the appellant is required to file it's return of income not only u/s. 139(1) but claim the deduction u/s. 80/A(4) of Income-tax Act in the return too. The appellant claims that no where Sec.80AC of Income-tax Act stipulates that the claim of deduction should be made in the return filed u/ s. 139(1)of the Income-tax Act as section says that return of income s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of income containing claim us 80-IB is not furnished before the due date specified in Section 139(1). The language of Section 80AC in this behalf is quite dear. It is well settled principle of construction of statute that the statutory enactment must obviously be constitute according to the plain meaning and that the scope of legislation on the intention of legislation cannot be enlarged when the language of the provisions is plant and unambiguous. In our view the language of Section 80AC is quite plain and unambiguous as much as it is specifically provides for the consequences that would follow if the return of income containing claim for deduction u/ s80iB is not furnished before the due date specified in Section 139(1) of the Act. 14. It is quite apparent on bare perusal of Section 80AC that the provisions contained therein are mandatory. In as much as it is specifically provides for the consequences that would follow if the return of income is not furnished with in the time limit specified in Section 139(1) of the Act. It is well settled if the assessee wants to avail deduction u/s 80IB he has to necessarily furnish his return of income containing such claim before the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consequences that would follow if that Act was not done before the specified time limit. Section 80AC, on the other hand, specifically provides for the consequences that would follow if the return of income is not furnished before the due date specified in Section 139(1) of the Act. Secondly fourth proviso to Section 139(1) specifically requires inter-aiia of Chapter VIA exceeds the maximum amount which is not chargeable to Income-tax. The fourth proviso has been inserted in the Income-tax Act, 1961 w.e.f. 1.4.2006 and is specified to the claim of deduct ion u/s 10A, 10B or Section l0BA by Chapter VIA. As stated earlier, the matter before the Hon'ble High Court was in the context of Section 54 and therefore there was no occasion to consider the applicability of 4th proviso to Section 139(1) in that case, in this view of the matter , the judgment of the Hon'ble High Court in Jagriti Aggarwal (supra) has hardly any bearing on the issue under appeal. For simple reasons the judgment re tied upon by the Id. Authorized representative for the assessee have no relevance to the issue under appeal before us. In view of the foregoing, the order passed by the Id. CIT(A) is confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assistance of from revenue side that legislature has not only prescribed filing of a return within the due date prescribed u/s. 139(1) as a pre condition for claiming section 80IA by way of inserting a special provision i.e. 80AC vide Finance Act 2007 w.e.f. 2008 but also Section 80A(5) further stipulates that chapter VI deduction is not to be allowed if the assessee fails to make a claim to this effect in its return of income. We therefore reject the assessee s arguments quoting Goetze India Ltd. Vs. CIT (2006) 284 ITO 323 SC and CIT V/s. Pruthvi Brokers Shareholders Pvt. Ltd (2012) 349 ITR 0336 (Bom.). We rather note that hon ble jurisdictional high court s decision in (2019) 107 taxmann.com 220 (Bom.) EBR Enterprises Vs. Union of India holds that such a failure on the assessee s part is indeed very fatal to its deduction claim. We adopt stricter interpretation in light of Commissioner of customs V/s Dilip Kumar (2018) 9 SCC 1(SC) (FB) to affirm CIT(A) s finding under challenge. The assessee fails in its sole grievance therefore. 4. This assessee s appeal is dismissed in above terms. Order pronounced in the Open Court on this 10th day of May, 2022. - - TaxTMI - TMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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