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TMI Blog2018 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... eal read as under: 1) As requested there is a condonation of delay of 195 days. The same may be condoned. Request application is enclosed. 2) The order of the A.O. was correct. The Hon'ble Pr. CIT wrongly set aside the order. The same is bad in law, illegal and invalid. The order passed by the Pr. CIT - 3 u/s. 263 may please be set aside. 3. At the outset, in this case it is noted that there is a delay of 196 days in filing the appeal. For the reasonable cause attributed for the delay it has been submitted that the partner looking after the affairs Shri Shailendra Kishore Jaiswal was indisposed. In this regard, a medical certificate has been submitted certifying that he was suffering from hypertension and bronchial asthma. 4. Upon c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1961 in the business premises of the assessee. That the assessee firm had declared additional income of Rs. 1,55,00,000/- for taxation for assessment year 2011-12. In this regard, he referred to the following response from the assessee to the query from the Assessing Officer : "the assessee has declared additional income of Rs. 1.55 lakh for the assessment year 2011-12 during the course of survey. As per the declaration, the assessee can give the remuneration out of additional income to its partners. During the year, assessee has given Rs. 90 lakh as remuneration to its three partners, Shailendra Jaiswal, Vijay Shelke, and Suresh Doifode each ofRs. 30 lakhs. The said remuneration duly reflected in the computation of income of partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was expounded that the extended time period prescribed u/s. 139(4) of the Act should also be taken into account in this regard for considering compliance of provision u/s. 139(1) of the Income Tax Act, 1961. In this regard, the ld. Counsel of the assessee placed reliance on the following case laws: 1 ITO vs. M/s. Uma Developers (in ITA No. 7718/Mum/2014 vide order dated 10.08.2016) 2 CIT vs. Kulu Valley Transport Co. P. Ltd. [1970] 77 ITR 518 (SC) 3 Trustees of Tulsidas Gopalji Charitable & Chaleshwar Temple Trust vs. CIT [1994] 207 ITR 368 (Bom) 4 ITO vs. Yash Developers [2014] 57 (II) ITCL 171 5 CIT vs. M/s. Unitech Ltd. (in ITA No. 239/2018 & CM No. 6678/2015 vide order dated 15.02.2015)(Delhi) 6 CIT vs. Gabrial India Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139 and the option contemplated by the Explanation to section 11(1) is exercised in writing along with such return, the requirements of the Explanation to section 11(1) would stand satisfied. 6. Similar controversy came up before the Supreme Court in CIT v . Kulu Valley Transport Co. (P.) Ltd. [1970] 77 ITR 518 . In that case, a dispute arose in regard to the right of an assessee to get the benefit of losses being set off and carried forward under section 24(2) of the Indian Income-tax Act, 1922 which provided that in order to get the benefit of section 24(2), the assessee must submit his loss return within the time specified by section 22(1) [corresponding to section 139(1) of 1961 Act]. Section 22(3) of the 1922 Act [correspondi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd's case (supra), therefore, squarely applies to the present case. Applying the ratio of the above decision, the option exercised by the assessee under the Explanation to section 11(1) before the time allowed under sub-section (4) of section 139 has to be held to have been exercised before the time allowed under subsection (1) or sub-section (2) of section 139 and in that event, the assessee would be entitled to the benefit of deduction under section 11. 8. In the result, we answer the question referred to us in the negative, i.e., in favour of the assessee and against the revenue. 12. From the above exposition from the Hon'ble jurisdictional High Court which duly has the mandate from the Hon'ble Apex Court, it transpires th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e jurisdiction u/s. 263 if he does not agree with the view of the Assessing Officer. 15. In the background of the aforesaid discussion and precedent, we quash the direction of the Commissioner of Income Tax to examine the allowability of deduction u/s. 80IB for both the years. 16. Now we come to the issue of the Commissioner of Income Tax 's direction that the assessee has claimed double deduction on account of partners salary. 17. In this regard, we note that the Commissioner of Income Tax has noted that there was a survey action in the case of the assessee firm, and for assessment 2011-12, the assessee had agreed to declare additional income of Rs. 1.55 crores. However, the Commissioner of Income Tax noted that on enquiry from assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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