TMI Blog2022 (10) TMI 1236X X X X Extracts X X X X X X X X Extracts X X X X ..... nder consideration i.e. assessment year 2019-20. Whether the case of the assessee would fall within the purview of prima facie adjustment under section 143(1)(a)(ii) (an incorrect claim, if such incorrect claim is apparent from any information in the return)? - The case of the assessee would also not fall within the purview of prima facie adjustment u/s 143(1)(a)(ii) (an incorrect claim, if such incorrect claim is apparent from any information in the return). We also observe that the counsel for the assessee has filed copies of orders passed by Commissioner (Appeals), NFAC in many other cases of cooperative societies having similar issues, in which it has been held that section 143(1)(a)(ii) of the Act does not deal with disallowance of deduction for deed filing of return of income and also the said adjustment is not permissible under section 143(1)(a)(v) of the Act. We note that the instant case, there was a few-month delay in filing the return of income by the assessee for the assessment year 2019-20 and return of income was filed within due date permissible u/s 139(4) in which the claim for deduction u/s 80P of the Act was made. Therefore, we are of the view that claim of deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income on 30-11-2020 declaring total income of Rs. Nil and claimed deduction of Rs. 4,11,630/-under section 80P of the Act. Thereafter, the assessee received intimation under section 143(1)(a) of the Act making adjustment in the returned income and not granting deduction of Rs. 4,11,630/- under section 80P of the Act claimed in the return of income, since the return of income was not filed within the due date prescribed under section 139(1) of the Act. 4. The assessee filed appeal against the order of Ld. CIT(A), who dismissed assessee s appeal with the following observations: 5. DECISION: 5.1 All the grounds of appeal are related to the solitary issue of disallowance of deduction u/s 80P. I have carefully considered the facts of the case, findings of the AO in the 143(1) order, grounds of appeal as well as the statement of facts submitted by the appellant. 5.2 It is observed that the AO while processing the return u/s 143(1) has disallowed the assessee's claim of deduction u/s 80P since the return was filed after the due date as per sec. 139(1). The provisions of Section 8OAC prior to the amendment vide Finance Act 2018 w.e.f. 01.04.2018 provided that deduction only under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the aforesaid order passed by Ld. CIT(A) denying assessee s claim of exemption under section 80P of the Act, 6. Before us, the counsel for the assessee submitted that CPC made adjustment to income of the assessee by denying assessee s claim of deduction of Rs. 4,11,630/- under section 80P of the Act on the ground that the claim of assessee was incorrect under section 143(1)(a)(ii) of the Act since the return of income was not filed within the due date prescribed under section 139(1) of the Act. The counsel for the assessee submitted that the adjustment made by the CPC was beyond the scope of section 143(1)(a)(v) of the Act. The counsel for the assessee submitted that 143(1)(a)(v) of the Act was amended w.e.f. 01-04-2021 and hence any prima facie adjustment relating to denial of deduction when the return of income was not filed within due date, was not possible for the year under consideration. Further, incorrect claim u/s 143(1)(a)(ii) of the Act has been defined / explained by way of an Explanation to section 143(1) of the Act which does not state that the claim would be incorrect if return of income is not filed within the due date. Hence, the action of CPC is bad in law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the claim made in the return of income can be said to be incorrect for the purposes of this subsection: (a) an incorrect claim apparent from any information in the return shall mean a claim, on the basis of an entry, in the return, (i) of an item, which is inconsistent with another entry of the same or some other item in such return; (ii) in respect of which the information required to be furnished under this Act to substantiate such entry has not been so furnished; or (iii) in respect of a deduction, where such deduction exceeds specified statutory limit which may have been expressed as monetary amount or percentage or ratio or fraction 7.1 A joint reading of the above provisions makes it evident that the claim of deduction under section 80P of the Act cannot be allowed the assessee, if the assessee does not file its return of income within the due date stipulated under section 139(1) of the Act w.e.f. assessment year 2018-19 onwards. However, we also note that amendment has been introduced in section 143(1)(a)(v) of the Act to provide that the claim of deduction under section 80P of the Act can be denied to the assessee, in case the assessee does not file its return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Act. In the case of ASR Engg. Projects Ltd. [2019] 111 taxmann.com 49 (Hyderabad - Trib.), the ITAT held that to be eligible to make claim under section 80-IA or any other section of Chapter VI A, assessee should have filed return of income under section 139(1) and even if it did not make claim for deduction in original return and subsequently file revised return making such claim, its claim for deduction under section 80-IA is maintainable. Therefore, where assessee had filed return under section 139(1), it was entitled to claim deduction under section 80-IA even if such claim was not made in original return but subsequently in revised return filed in response to notice issued under section 153A. 7.4 We note that the instant case, there was a few-month delay in filing the return of income by the assessee for the assessment year 2019-20 and return of income was filed within due date permissible u/s 139(4) of the Act, in which the claim for deduction u/s 80P of the Act was made. Therefore, looking into the totality of facts, we are of the view that claim of deduction u/s 80P of the Act cannot be denied to the assessee only on the basis that the assessee did not file retur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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