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TMI Blog2023 (3) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... the financial and social welfare of toddy tappers/workers and for tapping and selling toddy within the jurisdiction of Nileshwar. During the financial year 2008-09, the appellant Society got license from the Excise Department for carrying out the activity for tapping, pooling and marketing of toddy within the Excise range of Nileshwar. 3. For the assessment year 2009-10, the appellant did not file any return of income. Believing that the appellant had income chargeable to tax that had escaped assessment, the Department issued a notice under Section 148 of the IT Act to the appellant on 6.2.2012 requiring the appellant to furnish a return of income within 30 days of receipt of the notice. The appellant failed to file the return of income in response to the notice under Section 148. A return was however filed by the appellant on 5.7.2012, which was much beyond the date for filing of return in terms of Section 139(4) of the IT Act. The return of income for the assessment year 2009-10 should have been filed on or before 31.3.2011 in terms of Section 139(4) of the IT Act. Since the return of income was filed after the expiry of the time allowed under Section 139(4) and much after the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not, but found that in view of the fact that the claim for deduction under Section 80P(2)(a)(vi) of the IT Act had already been decided against the assessee by the jurisdictional High Court in the decision reported in Peravoor Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham and others v. Commissioner of Income-Tax - [(2016) 380 ITR 34 (Ker)], there was no necessity to interfere with the order of the First Appellate Authority dismissing the appeals preferred by the appellant/assessee for the assessment years 2009-10 and 2010-11. 6. The appellant/assessee has preferred these IT Appeals raising the following substantial questions of law therein: 1. Whether the Tribunal is right in law and facts of the case in not considering the issue of rejection of claim under Section 80P by the Lower authorities as hit by Section 80 A (5) of the Act as the claim made in a belated return, which issue is now squarely covered in favour of the assessee by the decision of the Honourable Court in the case of Chirakkal Service Co-operative Bank Ltd. v. CIT and other connected cases reported in (2016) 384 ITR 490 (Ker). 2. Whether the Tribunal is right in law and facts of the case in not c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the assessment years 2009-10 and 2010-11 respectively. Re: Questions of law Nos. 1, 2, 5 and 6: 8. These questions of law are taken together since they pertain to the issue of whether the claim for deduction under Section 80P(2) (a)(iii) of the IT Act, that was made by the assessee in returns stated to be filed on 5.7.2012 for the assessment years 2009-10 and 2010-11 can be seen as validly made for the purposes of the IT Act. The authorities below hold the view that it cannot. They rely on the provisions of Section 80A(5) of the IT Act that make it obligatory on an assessee claiming deduction under Section 80P of the IT Act to make the claim in its return of income, to contend that the return of income referred to in Section 80A(5) must necessarily be one that is traceable to the provisions of the IT Act that mandate the filing of a return such as Section 139(1), Section 139(4), Section 142(1) or Section 148, and since in the case of the assessee herein, the claim was made in a return filed beyond the due date for filing returns under the aforesaid provisions, the return filed had to be seen as invalid and non-est. 9. Per contra, the contentions of Sri.Arun Raj, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed. The Section also does not stipulate any specific date by which such return should be filed. It follows therefore that so long as there is a return filed before the completion of assessment, the claim for deduction made thereunder can be entertained by the Assessing Officer. At any rate, since the provisions of Section 80A(5) were amended with effect from 1.4.2003 only with a view to prevent the assessees from claiming multiple deductions for the same profits under various Sections in Chapter VIA, the mere fact that the appellant had made the claim for deduction in a return filed beyond the time prescribed under Sections 139, 142 and 148, but well before the completion of assessment could not have been used by the Assessing Authority to deny the valid claim for deduction. Reliance is placed on the decision in The Chirakkal Service Cooperative Bank Ltd. v. The Commissioner of Income Tax - [(2016) 384 ITR 490 (Ker)] in support of the above contentions. Reliance is also placed on the judgment dated 12.3.2021 of the Bombay High Court in Sesa Goa Limited v. Additional Commissioner of Income Tax [Tax Appeal No.24 of 2011] and the judgment of the Supreme Court in Goetze (India) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a return recognised as such under the IT Act, and after 1.4.2018, only if that return is one filed within the time prescribed under Section 139(1) of the Act. As the return in these cases, for the assessment years 2009- 10 and 2010-11, were admittedly filed after the dates prescribed under Sections 139(1) and 139(4) or in the notices issued under Section 142(1) and Section 148, the returns were indeed non-est and could not have been acted upon by the Assessing Officer even though they were filed before the completion of the assessment. 12. There is yet another aspect of the matter. The requirement of making the claim for deduction in a return of income filed by the assessee can be seen as a statutory pre-condition for claiming the benefit of deduction under the IT Act. It is trite that a provision for deduction or exemption under a taxing Statute has to be strictly construed against the assessee and in favour of the Revenue. Thus viewed, a failure on the part of an assessee to comply with the precondition for obtaining the deduction cannot be condoned either by the statutory authorities or by the courts. 13. It is in the backdrop of the aforesaid discussion that we must consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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