TMI Blog2016 (12) TMI 1790X X X X Extracts X X X X X X X X Extracts X X X X ..... t Member By Assessee: Shri A.K. Tulsyan, FCA By Revenue: Shri G. Mallickarjuna, CIT-DR ORDER Waseem Ahmed, Both appeal by the Revenue are against the order of Commissioner of Income Tax (Appeals)-III, Kolkata dated 29.11.2012. Assessments were framed by ACIT, CC-XXIII, Kolkata u/s 153A r.w.s.143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 30.12.2010 for assessment years 2008-09 2009-10 respectively. Shri G.Mallikarjuna, Ld. Departmental Representative appeared on behalf of Revenue and Shri A.K.Tulsyan, Ld. Authorized Representative appeared on behalf of assessee. 2. Both appeals are heard together and are being disposed of by way of common order for the sake of convenience. 3. As the issues raised in both the appeals are almost identical, therefore for the sake of convenience, we are adjudicating both the appeals by single common order. First we would like to reproduce the grounds of appeal in ITA No.342/Kol/2013 for A.Y. 2008-09.:- The following grounds of appeal are approved for filing appeal to ITAT, Kolkata against the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the appellant in filing return of income in time. 4. That on the facts and circumstances of the case, Ld. CIT(A) erred both in facts as well as in law in allowing assessee s appeal by observing that Ld. DGIT (investigation), East, Kolkata has given finding that the app s claim of deduction us. 80IA 80IB of the Act fulfills all the requirements of those sections except filing of return within the due date which is based on incorrect representation before the Ld. DGIT (investigation), East, Kolkata by the appellant. 4.1 That on the facts and circumstances of the case, Ld. CIT(A) erred grossly both in facts as well as in law in allowing assessee s appeal stating that there was no reason for him to re-examine the factual aspect of appellant s claim of deduction under those sections which is in fact never examined and deductions were summarily disallowed by the AO on the ground of filing return of income belatedly. 4. Inter-connected sole issue raised by Revenue in all the ground of appeal is that Ld. CIT(A) erred in allowing deduction u/s 80IA and 80IB of the Act in contravention of the provision of Sec. 80IC of the Act. The necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing return of income is not mandatory but it is directory in nature. Therefore, the deduction should be allowed to assessee. After considering the submissions of assessee and facts and circumstances of the case the ld. CIT(A) deleted the addition made by AO by observing as under:- In that case the Tribunal also observed that the CIT(A) should have considered the factual aspects of the merits of assessee s claim of exemption u/s. 10B(1) since the AO had not examined the same. In has not made any discussion about the merit of the appellant s claim u/s. 80IA and 80B. It is observed that deduction us. 80IB had been allowed to the appellant in early year. As regards claim of deduction u/s. 80IA, the year under appeal was the first year of appellant s claim of deduction under that section. However, it is observed that the Learned Director General of Income Tax (Investigation), East, Kolkata on page 19 of his order dated 06/07/2012 u/s. 119 of the Act on appellant s petition seeking waiver of interest u/s. 234A, 234B and 234C of the Act has given finding that the appellant s claim of deduction u/s. 80IA 80IB of the Act fulfills all the requirements of those sections exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand the ld. AR filed a paper book which is running from pages 1 to 77 and submitted that there was some dispute with regard to the partition of the family property, so the delay occurred which was beyond the control of the assessee. For the dispute the demerger petition was pending before the Hon ble High Court which was not settled till the date of filing the return of income as specified under section 139(1) of the Act. The ld. AR relied in the order of Hon ble ITAT of Hyderabad in the case of ITO Vs. S. Venkataiah reported in 52 SOT 0437 vide order dated 31st May 2012 which was subsequently confirmed by the Hon ble High Court of Andhra Pradesh in ITTA No. 114 of 2013. The ld. DR relied in the order of the ld. CIT(A). 9. We have given a thoughtful consideration to the rival contentions. The undisputed fact is that the return of income for the year under consideration was not furnished on or before the due date as per the provisions of section 139(1) of Act. In our considered opinion, provisions of section 80AC of the Act squarely apply on the facts of the case in hand, section 80AC reads as under:- 80AC. Where in computing the total income of an assessee o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of section 139(1) is applicable to all companies and firms irrespective of the fact as to whether they are earning taxable income or not for the current year i.e. from 1-4-2006. In respect of other persons such as individual, HUF, AOP or BOI and artificial Juridical person, the requirement is that if such a person is having taxable income before giving effect to the provisions of section 10A, then also, he is required to file return of income before the due date even if this person is not having taxable income after giving effect to the provisions of sectionn10A. [Para 11]. A.Y. 2008-09 Consequences of failure to file return within due date it is found that the provisions of the proviso to section 10A(IA) is nothing but a consequence of failure of the assessee to file the return of income within the due date prescribed under section 139(1). For such a failure of the assessee to file his return of income within the due date prescribed under section 139(1), this is not the only consequence. One consequence of such failure is prescribed in section 234A also as per which, the assessee is liable to pay interest on the tax payable by him after reducing advance tax and TDS/TCS ..... X X X X Extracts X X X X X X X X Extracts X X X X
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