TMI Blog2018 (4) TMI 434X X X X Extracts X X X X X X X X Extracts X X X X ..... ision of Hon’ble Calcutta High Court in the case of M/s Shelcon Properties (P)Ltd. (2015 (3) TMI 579 - CALCUTTA HIGH COURT). We are therefore of the view that there is no mistake apparent on the face of the record of the Tribunal. - M.A.No.209/Kol/2017 in I.T.A No. 191/Kol/2014 - - - Dated:- 1-3-2018 - Hon ble Sri N.V.Vasudevan, JM And Shri M.Balaganesh, AM For the Appellant : Shri Anand Sen, Advocate For the Respondent : Shri S.Das Gupta, Addl. CIT, Sr.DR ORDER Per N.V.Vasudevan, JM This is a Miscellaneous application filed by the Assessee u/s.254(2) of the Income Tax Act, 1961 (Act) praying for rectification of certain apparent errors in the order of the Tribunal dated 22.9.2017 passed in the aforesaid appeal. 2. The Assessee is a company engaged in the business of brewery and bottling plant. The assessee claimed deduction u/s 80IE of the Income Tax Act, 1961 (Act) on income derived from bottling charges. The AO was of the view that income derived from bottling charges is not eligible for deduction u/s 80IE of the Act as the condition precedent for claiming such deduction was that the assessee was required to manufacture or produce of an article or thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifty per cent of the profit as is debited to the profit and loss account of the previous year in respect of which the deduction is to be allowed and credited to a reserve account (to be called the Special Economic Zone Re-investment Allowance Reserve Account ) to be created and utilised for the purposes of the business of the assessee in the manner laid down in sub-section (1B) : Provided that no deduction under this section shall be allowed to an assessee who does not furnish a return of his income on or before the due date specified under sub-section (1) of section 139. 7. The Special Bench, held that as per proviso to Sec.10A(1A) of the Act, the assessee was required to file the ROI within the prescribed time as per the provisions of Section 139(1) of the Act and the proviso to sect 10A(1A) was nothing but a consequence of failure of the assessee to file the ROI within the due date prescribed u/s 139(1). For such a failure of the assessee to file his ROI within the due date prescribed u/s 139(1), disallowance of deduction u/s.10A of the Act was not the only consequence. Another consequence of such failure was prescribed in sect 234A also as per which, the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lcutta High Court in the case of CIT Vs. Shelcon Properties (P) Ltd., G.A.No.3069 of 2013, ITAT No.162 of 2013 order dated 16.1.2014 held that provisions of Sec.80AC of the Act are mandatory. The learned counsel however made submission that the question whether return filed within the time limit prescribed u/s.139(4) of the Act should be construed as compliance with the condition of filing return on or before due date u/s.139(1) of the Act by treating the provisions of Sec.139(4) as proviso to Sec.139(1) of the Act, was not considered by the Hon ble Calcutta High Court in the aforesaid decision. But this argument does not hold water in view of the decision of the Special Bench which has considered this question and held in the negative by relying on the decision of the Hon ble Supreme Court in the case of Prakash Nath Khanna (supra). 12. In view of the above discussion and considering the facts and circumstances of the case, we do not find any error or illegality in the orders of authorities below. In view of the above conclusion we are of the view that the question that the assessee satisfies the requirement of claiming deduction u/s 80 IE of the Act does not require any exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in the case of Honda SielPower Proudcts Ltd. 295 ITR 466 (SC) wherein it was held by the Hon ble Supreme Court that the purpose behind enactment of sec.254(2) of the Act is to ensure that no party appearing before the Tribunal should suffer on account of any mistake committed by the Tribunal and that prejudice should not be caused to the parties. According to him the assssee is prejudiced by the action of the tribunal in not making a reference to the decision of the Hon ble Delhi ITAT in the case of M/s Fiberfill Engineers (supra) of the Hon ble Delhi High Court in the case of M/s. Unitech Ltd. (supra) and decisions of Hon ble Supreme Court in the case of StrawBoard Manufacturing Ltd. (supra) and Poddar Cements Ltd (supra), in its order. The Ld. Counsel for the assesee fairly admitted that the issue was also covered against the assessee by the decision of the Hon ble Calcutta High Court in the case of Shalcon Properties (P)Ltd (supra). However according to him the Hon ble Delhi High Court in the case of M/s. Unitech Ltd. (supra) has held that the question whether provisions of sec. 80AC is mandatory or not is left open. The revenue has filed appeal before the Hon ble Supreme Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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