TMI Blog2017 (6) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee has not filed the return within the due date u/s 139(1)inspite the assessee has explained the reasons for not filing the return. Considering the facts and circumstances of this case and also respectfully following the decision in case of CIT Vs. M/s. S. Venkatesh [2013 (6) TMI 715 - ANDHRA PRADESH HIGH COURT] we are of the view that the assessee cannot be denied deduction u/s 80IB(11C) on technical issues when the assessee is otherwise entitled for deduction. - Decided in favour of assessee. - I.T.A.No.119/Vizag/2015 - - - Dated:- 28-3-2017 - SHRI V. DURGA RAO, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER For The Appellant : Shri G.V.N. Hari, AR For The Respondent : Shri T. Satyanandam, DR ORDER PER Shri Manjunatha, Accountant Member: This appeal filed by the assessee is directed against order of the Commissioner of Income-tax (Appeals), Visakhapatnam and it pertains to the Asst. Year 2011-12. 2. The brief facts of the case are that the assessee is a partnership firm, runs a 100 bed hospital in Kakinada. A survey u/s 133A was conducted in the business premises of the assessee on 20-10-2010. The assessee has not filed its return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IB, merely for non filing of return us/ 139(1) of the Act. The A.R. further submitted that the assessee has fulfilled all other conditions prescribed in the section, except filing return on or before the due date which is a procedural laps for which deduction cannot be denied. Section 80IB(11C) is incentive provision, which provides deduction for profits derived from eligible projects for encouragement of setting up Hospitals in certain areas which has to be interpreted in a manner so as to advance the economic activity of the reason and not to deny the benefit on technical grounds. The A.R. further submitted that the assessee has filed belated return u/s 139(4) and section 139(4) was nothing but an extension of s.139(1) and therefore, return filed u/s 139(4) should be deemed to be return filed within the due date specified u/s 139 of the Act. 5. The Ld. D.R. strongly supporting order of the CIT(A), submitted that it is mandatory for the tax payer to file return u/s 139(1) to claim deduction u/s 80IB and if such return is not filed on or before the due date, then deduction is not available u/s 80IB of the Act. The Ld. D.R. referring to the reasons given by the assessee for non f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 139(1). Therefore, we are of the view that deduction cannot be denied when the assessee explains the reasons for delay in filing the return. 8. Coming to the case laws relied upon by the assessee. The assessee relied upon the decision of ITAT, Hyderabad in the case of ITO vs. M/s Sri. S. Venkatesh, in ITA. No. 984/Hyd/2011, which was further upheld by the Hon ble A.P. High court in ITTA.No. 114 of 2013. The coordinate bench of ITAT, Hyderabad in the said case observed that the claim of the assessee cannot be denied on technicalities, when the assessee is legally otherwise entitled for deductions. The relevant portion of the order is extracted below: 13. We have heard both the parties and perused the material on record. In this case admittedly, the assessee filed the return of income on 23.12.2008. The due date for filing the return of income u/s. 139(1) of the Act for the assessment year under consideration in the case of the assessee is 31.10.2008. As such the return filed by the assessee is belated. In this the assessee claimed deduction u/s. 801C of the Act which was disallowed by the Assessing Officer as the return of the assessee was not filed within the time as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al and as held in various decisions referred to by the CIT(A) in the impugned order, that though filing of audit report in Form 10CCB is mandatory and pre-requisite for deduction under S. 801B, non-filing of the same along with the return of income is only a curable defect, and assessee's claim for deduction has to be considered on its merits as and when the defect is cured by filing Form 1OCCB. We are fortified in this behalf by the decision of the jurisdictional High Court in the case of Hemsons Industries (Supra), relied upon by the learned counsel for the assessee. It is contended by the Learned Departmental Representative that the assessee's claim for deduction under S. 801B can be entertained and examined on merits, when the audit report is filed before the completion of assessment, which has not been done in the present case, since the audit report was filed only during the course of reassessment proceedings initiated by the Assessing Officer, which cannot end up giving additional deductions/ benefits to the assessee. We do not find merit even in this contention of the learned Departmental Representative. In the case of Hemsoris Industries (Supra), before the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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