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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 ..... e on 31.03.2007 for AY 2006-2007 declaring an income of Rs. 2,33,74,215/-. On 31.03.2008, the assessee filed a revised return declaring income of Rs. 11,86,511/- and also claiming deduction of Rs. 2,25,43,724/- under Section 80IB(10) of the Act. 2(ii) The Assessing Officer (AO in short) in his assessment order dated 16.12.2009 under Section 143(3) of the Act declined the deduction claimed by the assessee under Section 80 IB(10) of the Act 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 asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon. It is simply not there. No views, interpretation, derivation can be taken or given on such legally non-existing document. However, learned ITAT also held that the CIT ought to have considered the claim of assessee in exercise of its appellate jurisdiction under Section 250 of the Act. If the assessee is otherwise entitled to deduction under Section 80IB(10), but due to its ignorance or for some other reason could 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 hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd in this behalf by notification in the Official Gazette, and who 4 during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or at any time during the previous year fulfils any one of the following conditions, namely:- (i) is in occupation of an immovable property exceeding a specified floor area, 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 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... motor vehicle" shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988). Explanation 2.-In this sub-section, "due date" means,- (a) where the assessee other than an assessee referred to in clause (aa) is- (i) a company ***; or (ii) 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 plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch housing project shall be deemed to have been approved on the date on which the building plan of such housing project is first approved by the local authority; (ii) the date of completion of construction of the housing project 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return at any time before the end of the relevant assessment year or before the completion of the assessment, whichever is earlier." 4(iv)(a) Consequences of non filing of return in time as per Section 139(1) vis-à-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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... med under Section 80IB were disallowed relying upon Section 80AC on the ground that return of income had not been filed within the time limit specified under Section 139(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 defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sequent year was a hypothetical. Petitioner was required and CBDT was justified in asking the petitioner to establish the reason propounded. In the absence 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. (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax) was a case where a re-assessment notice was issued to the assessee on the ground 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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