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TMI Blog2023 (12) TMI 1267X X X X Extracts X X X X X X X X Extracts X X X X ..... be put on Section 276-CC to the effect that a return filed under Section 139(4) would meet requirement of filing a return under Section 139(1), cannot be accepted. The time within which a return is to be furnished is indicated in Section 139(1) and not in 139(4). That being so, even if a return is filed in terms of Section 139(4), that would not dilute the infraction in not furnishing the return in due time as prescribed under Section 139(1). Otherwise, the use of words in due time would lose their relevance and it cannot be said that the said expression was used without any purpose. Therefore, a return of income filed under Section 139(4) cannot be said to be meeting the requirements of Section 139(1) in context of Section 80AC of the Act, which specifically insists upon filing of return by the due date prescribed under Section 139(1) for availing the admissible deductions. In the instant case, the assessee is a statutory organization created by the State for providing develop housing infrastructure. It took up a defence of late audit for belated filing of its return of income. The veracity of ground so put forth for late filing of return has not been disputed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct in its revised return. This was for the reason that the assessee had not filed the original return within the permissible period under Section 139 (1) of the Act. The AO held that return of income was filed by the assessee beyond the due date provided under Section 139(1). In view of provisions of Section 80 AC of the Act, the assessee was not entitled to claim deduction under Section 80IB(10) of the Act. Nevertheless, the merits of assessee s deduction claim was also examined by the AO project-wise and he found that none of the concerned 21 projects was eligible for deduction under Section 80IB(10) of the Act. However, on the basis of revised return, the AO further added administrative charges and transfer charges as revenue receipts of the assessee. This sum was added to the total income of the assessee. The net taxable income was accordingly computed. 2(iii) The Commissioner of Income Tax (Appeals) (CIT in short) passed a common order on 27.02.2012 under Section 250 (6) of the Act in the three appeals preferred by the assessee for the assessment years 2006- 2007, 2007-2008 and 2008-2009. The CIT held that the assessee could not have filed revised return since its origina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not claim the same in the return of income, but has raised its claim before the Appellate Authority, then the Appellate Authority should have looked into the same. The assessee cannot be burdened with taxes which it otherwise is not liable to pay under the law. A duty is cast upon the Income Tax Authorities to charge legitimate taxes from the tax payers. They are not there to punish the tax payers for their bonafide mistakes. Accordingly, for the assessment year 2006-2007,the deduction computed by the CIT on the merits of assessee s claim was confirmed and the appeal was accordingly allowed. 2(v) Feeling aggrieved against the order passed by the ITAT on 10.05.2019 in relation to assessment year 2006-2007, the revenue has preferred instant appeal. 3. We have heard learned counsel for the appellant as well as learned Senior counsel for the respondent. For the sake of convenience, points urged by the learned counsel for the parties are being considered and discussed hereinafter. 4. Consideration 4(i) The contention of the appellant is that the original return was filed by the assessee beyond the period prescribed under Section 139(1) of the Act. Hence, dedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or (ii) is the owner or 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, on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply: Provided also that every company or a firm shall furnish on or before the due date the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; 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 subsection, 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. Explanation 4. For the purposes of this section beneficial owner in respect of an asset means an individual who has provided, directly or indirectly, consideration fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall be taken to be the date on which the completion certificate in respect of such housing project is issued by the local authority; (b) the project is on the size of a plot of land which has a minimum area of one acre: Provided that nothing contained in clause (a) or clause (b) shall apply to a housing project carried out in accordance with a scheme framed by the Central Government or a State Government for reconstruction or redevelopment of existing buildings in areas declared to be slum areas under any law for the time being in force and such scheme is notified by the Board in this behalf; (c) the residential unit has a maximum built-up area of one thousand square feet where such residential unit is situated within the city of Delhi or Mumbai or within twenty-five kilometres from the municipal limits of these cities and one thousand and five hundred square feet at any other place; (d) the built-up area of the shops and other commercial establishments included in the housing project does not exceed three per cent of the aggregate builtup area of the housing project or five thousand square feet, whichever is higher; (e) not more than one residential ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in time as per Section 139(1) vis- -vis resultant action under Section 276-CC was under consideration before the Hon ble Apex Court in (2004) 9 SCC 686 Prakash Nath Khanna and another Vs. Commissioner of Income Tax and another. Assessee s submissions inter-alia were that :- The expression to furnish in due time figuring in Section 276-CC means to furnish within the time permissible under the Act ; The return furnished under Section 139(4) at any time before the assessment is made, has to be regarded as a return furnished under Section 139(1) ; This was so held by the Apex Court in 1970 (77) ITR 518 Comm. of Income Tax Punjab Vs. Kullu Valley Transport Co. Pvt. Ltd in context of Sections 22(1) 22 (3) of the Act which were pari-materia to Sections 139(1) 139(4). Hon ble Apex Court held Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in the statute is determinative factor of legislative intent. Provisions of Section 276-CC are in clear terms. There is no scope of uncertainty. The interpretation sought to be put on Section 276-CC to the effect that a return filed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd or anomalous results which could not have been intended by the legislature. An intention to produce an unreasonable result , said Danckwerts, L.J., in Artemiou v. Procopiou (1966 (1) QB 878) , is not to be imputed to a statute if there is some other construction available . Where to apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result , we must do some violence to the words and so achieve that obvious intention and produce a rational construction. (Per Lord Reid in Luke v. IRC {1963 AC 557} where at AC p. 577 he also observed: This is not a new problem, though our standard of drafting is such that it rarely emerges 17. ..In the present case as noted above, the provisions of Section 276-CC are in clear terms. There is no scope for trying to clear any doubt or ambiguity as urged by learned counsel for the appellants. Interpretation sought to be put on Section 276-CC to the effect that if a return is filed under sub-section (4) of section 139 it means that the requirements of sub-section (1) of Section 139 cannot be accepted for more reasons than one. 18. One of the significant terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1). The issue before the Delhi High Court pertained to order passed in the assessee s application under Section 119(2)(6) of the Act seeking extension of time for filing of return. The ground forwarded for late filing of the return was delay in audit. The Court considered the case for condonation of delay as under :- 9. The main issue raised by the assessee in this case is that the delay in audit has led to delay in filing of return which had led to his claim of 80IB(10) being disallowed and this had caused genuine hardship to him. It should be noted first that disallowance of any claim will normally lead to hardship. The Legislature has provided time limits for certain obligations under the Act and these time limits have to be observed to be able to claim certain deductions, allowances and avoid interest and penalty. This may be termed a hardship but it is hardship imposed by law in the interest of proper regulation of the Act. If these time limits were to be relaxed in a particular case, mere fact that a default occurred due to some reason is not enough to establish the claim of genuine hardship. 10. In determining whether genuine hardship is caused to the assessee one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of details of alleged illness and a single document to support the bland assertion, we are not inclined to hold that the impugned order suffers from perversity or error in decision making process in reaching the conclusion. Impugned order is not arbitrary or whimsical, to justify interference in exercise of our power of judicial review. The respondent authorities have taken all the arguments and materials into consideration. Procedural flaw is not alleged. 16. The findings recorded in the impugned order and the facts discussed above reveal :- (i) Return for the assessment year 2006-07, which was to be filed under Section 139 (1) of the Act on 31st October, 2006 was filed by the petitioner after five months on 30th March, 2007. (ii) The petitioner was denied benefit of deduction under Section 80IB in terms of Section 80AC of the Act. (iii) The order passed by the Tribunal confirming the findings of the Assessing Officer and the first appellate authority denying deduction under Section 80IB has attained finality. (iv) The petitioner had applied to extension of time for filing of return under Section 119 (2)(b) for the assessment year 2006-07 vide applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that it could not be granted deduction under Section 80 IC because of belated filing of return of income. However, it was noted that on merits, assessee s claim for deduction was justified. In the circumstances, the Delhi High Court held in favour of assessee that since entitlement of assessee to deduction had not been questioned by the department on merits, there was no justification for not viewing delay in filing the return to be bonafide. 4(iv)(d) In the instant case, the assessee is a statutory organization created by the State for providing develop housing infrastructure. It took up a defence of late audit for belated filing of its return of income. The veracity of ground so put forth for late filing of return has not been disputed by the appellant. The assessee deals with public money, the State exchequer. The Commissioner of Income Tax and the Income Tax Appellate Tribunal have concurrently held on facts after undertaking a lengthy pain staking exercise that the assessee was actually entitled to deductions under Section 80IB(10) of the Act. The specific amount of deduction admissible to it has also been computed. The ground put forth by the assessee for not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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