TMI Blog2020 (2) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantive benefits which were available and arrive at just tax to be paid. Benefits which are otherwise available to an assessee cannot be denied on the ground of technical failure of an assessee is such assessee is legitimately entitled to such substantive benefit. In this connection, it may be apt to refer to the following quotation of the Hon ble Supreme Court in the case of Commissioner of Sales Tax Vs. Auriya Chambers of Commerce [ 1986 (4) TMI 363 - SUPREME COURT] wherein the Hon ble Court held that procedures are handmaids of justice and not mistress of law. In this case, the 2 nd respondent has not given to benefit while reassessing the income of the petitioner while passing order on 29.12.2008. It is precisely for dealing with situations like this, powers have been vested with superior officers like the respondent under Section 264 of the Income Tax Act, 1961. Though, orders have to be passed subject to provisions of the Act, the intention of the legislative is not whittle down or deny benefit which are legitimately available to an assessee. Failure to file return within the period under Section 139 of the Income Tax Act, 1961 for the purpose of claiming benefi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80JJAA of the Income Tax Act, 1961. 7. During the interregnum, the impugned order dated 26.03.2008 was passed by the 1 st respondent under Section 264 of the Income Tax Act, 1961 rejecting the benefits of Section 80JJAA of the Act. In other words, the order dated 17.01.2007 passed under 154 of the Income Tax Act, 1961 allowing the deduction claimed by the petitioner under Section 80HCC of the Act has been disallowed. 8. Meanwhile, a notice dated 06.02.2008 was issued under Section 148 of the Act. The petitioner replied to the same on 02.12.2008, which was culminated in an order dated 29.12.2008. 9. Aggrieved by the order dated 29.12.2008, the petitioner preferred an appeal before the Commissioner of Income Tax (Appeals). The petitioner s appeal was dismissed for nonprosecution vide order dated 03.06.2009. 10. Under these circumstances, the petitioner preferred an appeal before the Income Tax Appellate Tribunal in ITA No. 1337/MDS/094 for the Assessment Year 2004-05. Separate appeal was filed in ITA No 1338/MDS/2009 for the Assessment Year 2006- 07. 11. The Tribunal by its common order dated 13.11.2009 set aside the order of the Commissioner of Income Tax (Appeal) dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r has relied on the following decisions of the Court:- i. Commissioner of Income Tax-1 vs. M/s.AKS Alloys P.Ltd.,(2012) 18 taxman.com25 (Madras). ii. Commissioner of Income Tax, Mahrashtra vs. M/s.G.M.Knitting Industries P.Ltd., (2016) 71 Taxmann.com 35(SC). iii. Commissioner of Income Tax vs. Punjab Financial Corporation, (2002) 121 Taxmann 656 (Punjab Haryana) (FB). 19. In the 1 st mentioned case, the court held that non filing of form/certificate along with the return was not mandatory. It was further submitted that similar view was taken in the 2 nd mentioned case. 20. As far as non-filing of the returns for the Assessment Year 2004-05 is concerned, the time-limit prescribed for revising the return under Section 139(1) in terms of Section 139(5) would not eclipse the powers vested with the 1 st respondent under Section 264 of the Act to act fairly. In this connection, reference has been made to the decision of this Court in Sri. Selva Muthu Kumar Vs. Commissioner of Income Tax, [2017 ] 394 ITR 247 a Division Bench of this Court held as follows:- 13. The relief provided in terms of Section 139(5) is specific to the correction of a wrong statement or an omissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, wherein it has been observed that since the petitioner had failed to file return before the expiry of one year from the end of the relevant assessment year, the benefit of deduction under Section 80 JJAA of the Income Tax Act, 1961 cannot be allowed. 25. The 1 st respondent has observed that as per sub-Section 2 to Section 80JJAA of the Income Tax Act, 1961, deduction cannot be allowed unless the assessee furnishes certificate along with the return of income, the report of the accountant, as defined in the explanation below such sub-section (2) of Section 288 giving such particulars and the report as may be prescribed. Secondly, it is stated that the revised return was filed beyond the period of limitation prescribed under Section 139(5) of the Income Tax Act, 1961. 26. In this case, the assessment which was completed on 29.12.2006 for the Assessment Year 2004-05 reopened with issue of the notice under Section 148 of the Income Tax Act, 1961. Thus, the original assessment which was completed on 29.12.2006 as modified by an order dated 17.1.2007 and was put to jeopardy by the respondent. Once notice under Section 148 of the Income Tax Act, 1961 is invoked, the 2 nd respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming benefit of deduction under Section 80 AAJJ of the Income Tax Act, 1961, in my view is a more procedural formality. In my view, denial of substantive benefit cannot be justified since the assessment itself was reopened by the 2 nd respondent and the assessment already made on 29.12.2006 was put to jeopardy. 32. If an assessee is entitled to benefit, technical failure on the part of an assessee to claim the benefit in time, should not come in the grant of substantial benefit/benefits that was/were otherwise available under the Income Tax Act, 1961 but for such technical failure. 33. I am therefore of the view that the petitioner would be entitled to the benefit of Section 80JJAA of the Income Tax Act, 1961. The 1 st respondent ought to have allowed the application filed by the petitioner under Section 264 of the Income Tax Act, 1961. 34. In the light of the discussion, I am of the view that the petitioner is entitled to partial relief at this stage. Accordingly, the impugned order is set aside by condoning the delay in filing the return. The 2 nd respondent is therefore directed to pass appropriate orders on merits in accordance with law, ignoring the delay on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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