TMI Blog2016 (9) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim of the assessee is hit by the provisions of section 80AC of the Act. Therefore, we confirm the order of the CIT(Appeals) in this regard. - Decided against assessee. - ITA No.137/Bang/2013 - - - Dated:- 29-7-2016 - SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER For The Appellant by : Shri S. Venkatesan, CA For The Respondent by : Shri K.R. Narayana, Jt. CIT(DR) ORDER Per Sunil Kumar Yadav, Judicial Member This is an appeal preferred by the assessee against the order of the CIT(Appeals)-III, Bangalore dated 19.10.2012 for the assessment year 2009-10 inter alia on the following grounds:- 1. The orders of the authorities below in so far as they are against the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venture consisting of appellant or other alone is liable for assessment either as AOP or BOI having regard to the ratio of the decision of the Hon'ble Supreme Court in the case of MEERA CO., reported in 224 ITR 635 and such income is chargeable in its hands and not in the hands of the appellant, such share of income attributable to appellant after the grant of deduction u/s.80OB of the Act, is entitled to rebate in view of provisions to section 86 of the Act and at any rate there is no liability to tax. 5. Without prejudice to the right to seek waiver with the Hon'ble CCIT/DG, the appellant denies itself liable to be charged to interest u/s. 234-A, 234-B and 234-C of the Act, which under the facts and in the circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT [Appeals]. 4. The request for admission of additional grounds is strongly opposed by the ld. DR with the submission that the appellant right from the stage of filing of the return of income till the appeal before the CIT(Appeals), had admitted that it is involved in the business of development of housing projects, accordingly it has claimed deduction u/s. 80IB(10) of the Act. But now through this additional ground, the assessee has tried to claim that the income is assessable as capital gain, not as business income, for which detailed investigation is called for and such type of additional ground cannot be admitted in the light of the judgment of the Hon ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT, 229 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee submitted that this provision is directory and not mandatory and if the assessee has filed return u/s. 139(4) claiming deduction u/s. 80IB of the act, the deduction should be allowed, if the assessee meets the other requirements of law. 9. Having carefully examined the orders of authorities below and documents placed on record, we find that the assessee has filed return of income claiming deduction u/s. 80IB of the Act which was disallowed by the AO on the ground that the return was not filed before the due date prescribed u/s. 139(1) of the Act in the light of provisions of section 80AC of the Act. 10. It is also evident from the assessment order that the assessee is engaged in the business of real estate developers an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence:- 06. The Special Bench examined the whole scheme of the Act. The Special Bench found that One consequence of failure to file return of income on or before the due date u/s.139(1) of the Act was levy of interest u/s.234A of the Act as per which, the assessee is liable to pay interest on the tax payable by him after reducing advance tax and TDS/TCS if any paid by him apart from some other reductions and such interest is payable from the date immediately following the due date for filing return of income and is payable up to the date on which such return of income was furnished by the assessee. Payment of interest u/s.234A of the Act was a consequence for failure to file return of before the due date u/s. 139(1) and the same is manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Assessee however reiterated his submission that provisions of Sec.80AC have to be construed as directory and that the provisions of Sec.80IB(10) of the Act are beneficial provisions and need to be interpreted liberally to further the object of the section. 09. We are of the view that in the light of the aforesaid decision of the Special Bench in the case of Saffire Garments (supra) and Avasarala Technologies Ltd.(supra), the plea raised on behalf of the Assessee cannot be accepted. Accordingly, we hold that provisions of Sec.80AC of the Act were mandatory and not directory, thus deduction U/S 80-IB(10) of the Act could not be allowed to an assessee who fails to furnish a return of income on or before the due date specified u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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