TMI Blog2018 (8) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... returns were filed beyond the time limit for sub section 139(4). Even otherwise, we find that the Hon’ble Apex Court in the case of Malabar Industrial Co. Ltd. vs. CIT [2000 (2) TMI 10 - SUPREME COURT] has expounded that when there are two views possible and the Assessing Officer has adopted one of the views with which the Commissioner of Income Tax does not agree, the same will not give rise to granting the Commissioner of Income Tax the power to exercise jurisdiction u/s. 263 of the Income Tax Act, 1961. Here we find that in view of the above said decision, if the Assessing Officer has formed a view that the assessee deserves deduction u/s. 80IB, having complied with the overall provisions of section 139, it cannot be said that the Commissioner of Income Tax can legally assume jurisdiction u/s. 263 if he does not agree with the view of the Assessing Officer. Thus we quash the direction of the Commissioner of Income Tax to examine the allowability of deduction u/s. 80IB for both the years. Assessee has claimed double deduction on account of partners salary - Held that:- Commissioner of Income Tax has overlooked the submission of the assessee that it is entitled to deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the delay is condoned. 5. In the order passed under section 263 in this case, the ld. Commissioner of Income Tax observed that the assessee has filed a return of income for the assessment year 2011- 12 belatedly on 25.12.2011 which was due to be filed on 30.09.2011. For assessment year 2012-13, the belated return was filed on 16.03.2013 which was due to be filed on 30.09.2012. In these returns, the assessee has claimed 80-IB deductions at ₹ 1,57,04,685/- and ₹ 51,57,714/- respectively for the two assessment years. The ld. Commissioner of Income Tax noted that the assessment was completed by the Assessing Officer by accepting the assessee s claim of deduction u/s. 80-IB. The ld. Commissioner of Income Tax referred to the provisions of section 80AC for the proposition that the deduction u/s. 80IB shall not be granted unless the return is furnished on due date specified u/s. 139(1) of the Act. Hence, the ld. Commissioner of Income Tax directed to the Assessing Officer to examine the limited issue, i.e., relating to allowance of deduction u/s. 80-IB of the Act after giving sufficient opportunity of being heard. 6. For assessment year 2011-12, the Commissioner of Incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the ld. Commissioner of Income Tax to exercise the jurisdiction u/s. 263 of the Act. He submitted that there are several case laws from the tribunal as well as the Hon'ble Bombay High Court in which it 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 Ltd. [1993] 203 ITR 108 (Bom-HC) 7 CIT vs. Arvind Jewellers [2003] 259 ITR 502 (Guj-HC) 8 CIT vs. Max India Ltd. [2004] 268 ITR 128 (P H) 9 Smt. Lila Choudhary vs. CIT [2007] 289 ITR 226 (Gauhati) 10 CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of section 22A of the Act to enable the assessee to carry forward the losses. The Supreme Court did not approve this interpretation and held that section 22(1) must be read with sub section 22(3) for the purpose of determining the time within which the return has to be submitted. It was observed that section 22(3) was merely a proviso to section 22(1). On the aforesaid reasoning, it was held that a return of income, profits or gains or of a business must be considered as having been made within the time prescribed if it is made within the time specified in section 22(3). In other words, if section 22(3) is complied with, section 22(1) must also be held to have been complied with. If compliance has been made with the latter provision, the requirement of section 22(2A) would stand satisfied. 7. The provisions of sections 22(1), 22(2) and 22(3) are identical to the provisions of sub-sections (1), (2) and (4) of section 139. On a careful comparison of the two sets of provisions, it is evident that there is no difference between the two. The ratio of the decision of the Supreme Court in Kulu Valley Transport Co. (P.) Ltd's case (supra), therefore, squarely appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner 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 ₹ 1.55 crores. However, the Commissioner of Income Tax noted that on enquiry from assessing officer in this regard the assessee had stated that assessee comes under the ambit of exemption /deduction under section 80IB. Still assessee had offered ₹ 65 lacs for taxation after submitting that assessee was allowed to pay ₹ 90 lacs as salary to partner. This was accepted by the assessing officer. Now, the Commissioner of Income Tax has exercised his jurisdiction over this act of the assessing officer, by noting that assessee has already claimed remuneration to partner. In this regard, we note that Commissioner of Income Tax has overlooked the submission of the assessee that it is entitled to deduction u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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