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TMI Blog2008 (5) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... hing the return of income under sub-section (1) of Section 139 ofthe Act is directory? 3. Filing of paper books is dispensed with. 4. Since we have heard learned counsel for the parties in detail, we are disposing ofthe appeal on the existing papers. 5. At the outset, learned counsel for the Assessee has pointed out that Section lOB of the Act has undergone several changes. As on the relevant date, the provisions of Section lOB(l), 10B(3) and 10B(7) of the Act, which we are concerned with, read as foliows:- lOB. (1) Subject to the provisions of this section, any profits and gains derived by an assessee from a hundred per cent export-oriented undertaking (hereinafter in this section referred to as the undertaking) to which this section applies shall not be included in the total income of the assessee. xxxx xxxx (3) The profits and gains referred to in sub-section (1) shall not be included in the total income of the assessee in respect of any five consecutive assessment year, falling within a period of eight years beginning with the assessment year relevant to the previous year in which the undertaking begins to manufacture or produce articles or things, specified by the assessee at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of filing the declaration for withdrawing the claim for exemption before the due date of return was not mandatory but it was directory. In this regard, the Tribunal relied upon certain decisions rendered by other Benches of the Tribunal. 11. Learned counsel for the Revenue, in support of his case has relied upon Goetze (India) Ltd, vs. Commissioner of Income Tax [2006] 284 ITR 323 . This case is not directly on the point since what was decided therein by the Supreme Court was that a claim for exemption can be made either in the return as originally filed or by filing a revised return under Section 139(5) of the Act. In the event an Assesseee does not file a claim for exemption in the original return or the revised return, he cannot subsequently make a claim for deduction and the Assessing Officer can reject the claim for exemption. 12. This is not what has happened in the present case inasmuch as the Assessee has not made a claim for exemption but has made a claim for withdrawing an exemption which it would otherwise be entitled to claim in view of Section 10B(3) of the Act. Goetze (India) is not at all apposite. 13. Learned counsel for the Assessee has relied upon Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the furnishing of audited accounts by a chartered accountant along with the return of income for the relevant assessment year. 18. While interpreting the above provision, the Calcutta High Court came to the following conclusion:- It is now well-settled that a procedural provision, ordinarily, should not be construed as mandatory, if the defect in the act done in pursuance of it can be cured by permitting the appropriate rectification to be carried out at a subsequent stage. Procedural laws are, devised and enacted for the purpose of advancing justice. It does not mean that the procedural laws should be brushed aside by the court. It depends on the facts and circumstances of a particular case as to whether a breach in the observance of any procedural law, if not excused or overlooked, would cause real and substantial injustice to the parties. 19. Learned counsel for the Assessee also drew our attention to the decision of the Punjab and Haryana High Court in Commissioner of Income Tax vs. Gupta Fabs [2005] 274ITR 620 and Commissioner of Income Tax vs. Punjab Financial Corporation [2002] 254 ITR 6; and the decision of the Madhya Pradesh High Court in Commissioner of Income Tax Vs. Pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant. It does not impose an embargo on the power of the court to extend the time. Though the language of the proviso to Rule 1 Order 8 CPC is couched in negative form, it does not specify any penal consequences flowing from the non-compliance. The provision being in the domain of the procedural law, it has to be held directory and not mandatory. The power of the court to extend time for filing the written statement beyond the time schedule provided by Order 8 Rule 1 CPC is not completely taken away. 23. On a reading of all the decisions mentioned above, we find that the purpose of filing a declaration under Section 10B(7) of the Act is to enable the Assessee to bring to the knowledge of the Assessing Officer the desire of the Assessee to withdraw the claim for exemption. To that extent, therefore, the requirement of filing a declaration is of course mandatory because without such a declaration, the Assessing Officer cannot even consider the claim for withdrawal. However, the question which we are required to consider is whether the declaration is mandatorily required to be filed before the due date of filing the return. 24. We find from the decisions that we have discussed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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