TMI Blog2015 (5) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... lf. Likewise, it being considered as filed on the date of furnishing the physical return is again per the said scheme. That is, the relaxation extends only to the deeming of the date of the filing the return and not to its form and, further, does not extend beyond 15 days. It would thus be only correct to say that the benefit of the scheme extends to the physical filing of the return within an extended period of 15 days. There is, accordingly, no question of any flexibility or extending the scope or ambit of the deeming; it itself contemplating the assessee being not able to file the return within the extended period, the consequences for which are specified. The enlargement in scope, as being sought to be canvassed, is thus uncalled for and inconsistent with the terms of the law, the rules and the scheme, which are observed to be in consistence and harmony. The absence of a digital signature, so that the e-return is not verified, stands already emphasized. The requirement of law, i.e., per section 80AC r/w ss. 139(1) and 139 (1B) are, therefore, not satisfied in the instant case. - Decided against assessee. - I.T.A. NO. 4727/Mum/2012 - - - Dated:- 30-1-2015 - SHRI SANJAY ARO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16th day after the e-Return was filed and there was only a one day delay in filing the physical return. It was further contended that the assessee does not fall in the category of eligible person for submitting the duly verified Form ITR-V as per the CBDT notification dated 27/07/2007. The CIT(A) did not agree with the submissions of the assessee and held that the e-Return filed by the assessee will be treated as a return filed on the date if a verified physical return is filed within 15 days from the date of filing the e-Return. Accordingly, the CIT(A) has confirmed the action of the AO in denying the deduction u/s. 80IB(10). 2.1 Before us the ld. AR of the assessee has submitted that the authorities below have erred in holding that the assessee is not entitled to deduction u/s. 80IB of the Act for want of compliance of provisions of section 80AC of the Income tax Act. He has contended that the requirement of section 80AC is to file the return on or before due date as prescribed u/s. 139(1). The assessee has complied with the requirement of Section 80AC by filing the e-Return on 30/09/2008. Furnishing of the physical return is a requirement of the Rules and notifications of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rules/notification of CBDT which cannot whittle down the Act or statute. Therefore the claim of deduction cannot be denied on the ground of non-compliance of rule when the provisions of the Act are duly complied with. In support of his contention he has relied upon the decision of Hon'ble Supreme Court in the case of State of Madhya Pradesh and Anr. vs. G.S. Dall and Flour Mills (187 ITR 478)(SC). He has also relied upon the following the decisions :- 1. E.K.K. Co. vs. ACIT (2013) 144 ITD 636 (cochin)(Trib.) (AY : 2009-10); 2. CIT vs. S. Chenniappa Mudaliar (1969) 74 ITR 41(SC)(48); 3. CIT vs. Nagpur Hotel Owners Association (1994) 209 ITR 441 (bom.)(HC); 4. CIT vs. Gwalior Rayon silk Manufacturing Co. Ltd. (1992) 196 ITR 149 (SC)(156) 5. M/s. Saffire Garments vs. ITO (2013) 140 ITD 6 (SB) (Raj.)(Trib.) 2.3 On the other hand the ld. DR has submitted that the requirement of filing the physical return in the Form ITR-V is as per the main scheme of electronic furnishing of return of income scheme, 2007. Therefore, the return of income would not be treated as filed without the duly verified Form ITR-V and is submitted within a period of 15 days from the issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition has been provided in the proviso to section 10A(1A) that no deduction under section 10A shall be allowed to an assessee who does not furnish a return of income within time limit prescribed under section 139(1). The Special Bench has held in para 11 to 13 as under :- 11. The 1st question raised before us is this as to whether this proviso to Section 10A(1A) of the Income tax Act, 1961, is mandatory or merely directory. In order to decide this issue, we feel that we have to consider the whole scheme of the Act. The assessee is required to file the return of income within the prescribed time as per the provisions of Section 139(1). This provision of Section 139(1) is applicable to all companies and firms irrespective of the fact as to whether they are earning taxable income or not for the current year i.e. from 01.04.2006. In respect of other persons such as individual, HUF, AOP or BOI and Artificial Judicial Person, the requirement is this that if such a person is having taxable income before giving effect to the provisions of Section 10A, then also, he is required to file return of income before the due date even if this person is not having taxable income after giving e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income within the due date prescribed u/s 139(1) of the Income tax Act, 1961. This is by now a settled position of law that charging of interest under various sections including u/s 234A of the Income tax Act, 1961, is mandatory. When one of the consequences for not filing return of income within the due date prescribed u/s 139(1) of the Income tax Act, 1961 is mandatory then, other consequence of the same failure of the assessee cannot be directory and the same is also mandatory. In our considered opinion and in view of our above discussion, the provisions of the proviso to Section 10A(1A) is mandatory and not directory and, therefore, question (a) referred to us is answered in negative and it is held that this proviso to Section 10A(1A) of the Income tax Act, 1961 is mandatory. 12. We now examine and discuss other consequences also for the failure of the assessee to file the return of income within the due date as required u/s 139(1) of the Income tax Act, 1961. One of such consequence is the provisions of Section 276CC as per which if the assessee fails to file the return of income within the due date prescribed under sub-section (1) of Section 139 of the Act then he shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered against the assessee by the judgement of Hon ble Apex Court cited by the Ld. D.R. 3.2 In view of the decision of the Special Bench of the Tribunal in the case of M/s. Saffire Garments (supra), we hold that the provisions under section 80AC requiring the assessee to furnish the return of income before due date specified under section 139(1) is mandatory and not directory. 3.3 Now the question arises whether the e-Return filed by the assessee on 30/09/2008 and physical Form ITR-V verified and submitted on 16/10/2008 would constitute a valid return filed by the assessee on 30/09/2008 which is the due date of furnishing the return of income as per section 139(1). The ld. Counsel for the assessee has given much stress on the point that the filing of e-Return within the due date of filing the return of income itself is a compliance of section 80AC and subsequent technical default of delay of filing acknowledgment of return will not affect the claim of deduction under section 80IB. We do not agree with the contention of the ld. Counsel for the assessee as the provisions of section 139(1) stipulates filing of return in prescribed form and verified in prescribed manner. We quot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f filing of physical return is neither diluted not taken away under the filing of e-Return scheme 2007. However, if the assessee takes the first step of filing the e-Return within the time prescribed for due date of filing the return under section 139(1) then the physical return in the Form ITR-V duly verified can be filed within 15 days thereafter and the date of filing of return will be deemed as the date on which the e-Return was filed and provisional receipt is issued. Sub-para-3 of para-3 of this scheme deals with the situation when the duly verified Form ITR-V is not submitted within 15 days, then the date of submitting Form ITR-V shall be deemed to be the date of filing the return. In the case of the assessee the Form ITR-V was submitted by the assessee after 15 days from the date of filing the e-Return. Therefore, it falls under sub para-3 of para- 3 of this scheme and the date of filing of the return will be deemed when Form ITR-V was submitted by the assessee. Since the assessee submitted Form ITR-V on 16/10/2008 which shall be deemed to be the date of filing the return consequently the return filed by the assessee cannot be regarded as filed within the due date specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent, if the delay was instead for, say, two days or five days or fifteen days? The issue is whether or not the return of income stands filed by the specified date; the answer to which would be either yes or no , so that the length of the delay is by itself of no consequence. No wonder, no reason/s explaining the said delay was advanced at any stage. Further, that the time limit prescribed in sections 10A and 10B, or the analogous provision of section 80AC, for the filing of return of income for the relevant year, i.e., if the benefit under the relevant provisions is to be allowed, is mandatory and not directory, stands abundantly clarified by the larger bench of the Tribunal in Saffire Garments vs. ITO [2013] 140 ITD 6 (Rajkot) (SB), with reference to a host of decisions, including by the apex court in Prakash Nath Khanna vs. CIT [2004] 266 ITR 1 (SC). There is no equity about tax, and the language of the statute, where clear and unambiguous, as in the instant case, is to be read as it is, i.e., by giving a fair look and meaning to the language. If the legislative intent is not to be gathered from the plain and clear words employed by the statute, where-from, one may ask, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o file the return within the extended period, the consequences for which are specified. The enlargement in scope, as being sought to be canvassed, is thus uncalled for and inconsistent with the terms of the law, the rules and the scheme, which are observed to be in consistence and harmony. The absence of a digital signature, so that the e-return is not verified, stands already emphasized. 3.5.2 The requirement of law, i.e., per section 80AC r/w ss. 139(1) and 139 (1B) are, therefore, not satisfied in the instant case. 3.6 The decision relied upon by the ld. AR will not help the case of the assessee in view of the decision of the Special bench of the Tribunal n the case of Saffire Garments (supra) , and further in view of the judgment of Hon'ble Supreme Court in the case of Prakash Nath Khanna and Another vs. CIT and Anr. (266 ITR 1) which has been considered and relied upon by the Special Bench. In view of the above discussion as well as in the facts and circumstances of the case we do not find any error or illegality in the orders of authorities below. 4. In the result appeal of the assessee is dismissed. Order pronounced in the open court on 30/01/2015 - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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