TMI Blog2023 (3) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act - HELD THAT:- Subsequent amendments to Section 80AC by the Finance Act 2018 fortifies the view that we have taken for, it makes the claim for deduction under Section 80P conditional on filing a return within the due date prescribed u/s 139(1) - the pre-condition for claiming the deduction under Section 80P of the IT Act has now been made more stringent by reducing the time available to an assessee for making the claim. A reading of the provisions of Section 139(8) and (9) of the IT Act clearly reveals that even under those provisions, the restrictions placed with regard to the accrual of interest on amounts assessed on an assessee is with regard to the date of filing of a return within the time prescribed under the IT Act. Under Section 234A of the IT Act, however, although the provision suggests that even a return filed beyond the time prescribed under any of the provisions of the IT Act can have the effect of limiting the accrual of interest on the amounts assessed against an assessee, we have to see the said provision as permitting a filing of a belated return for the limited purpose of conferring a specific benefit of limiting the accrual of interest, on an assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 009-10 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 due date mentioned in the notice under Section 148, the Assessing Officer treated the same as invalid and proceeded to complete the assessment in terms of Section 144 of the IT Act after hearing the representative of the appellant and verifying the books of account and other details called for by the Department. While completing the assessment, the claim of the appellant for deduction under Section 80P was disallowed on the ground that the claim for deduction had not been made in a valid return filed by the appellant in terms of the IT Act. It was the stand of the Assessing Officer that in view of the provisions of Section 80A(5) of the IT Act, the claim for deduction could not be considered. 4. For the assessment year 2010-11 also, the appellant did not file any return of income voluntarily. A notice under Section 142 (1) of the IT Act was therefore issued to it on 3.2.2012 requiring it to furnish a return of income for the assessment year in question. The appellant howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 considering the issue/fact that both the assessing officer and the CIT (Appeals) has held that the appellant/assessee is not entitled to any deduction under section 80 P of the Act erroneously holding that the return filed by the appellant is non-est and invalid and hit by section 80 A (5) of the Act and therefore the appellant is not entitled to any deduction under section 80 P of the Act? 3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the appellant society cannot be considered as Co-operative Societies engaged in the collective disposal of labour of its members as contemplated under section 80P(2) (a) (vi) of the Act and therefore not eligible for deduction under section 80 P of the Act? Is not such a finding of the Tribunal illegal, arbitrary and perverse? 4. Whether the Tribunal is right in law and facts of the case in upholding the finding of the assessing officer/contention of the revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 counsel for the appellant/assessee, briefly stated are as follows: ● The return filed by the appellant/assessee on 5.7.2012 for the assessment years 2009-10 and 2010-11 respectively cannot be treated as non-est and invalid. The IT Act does not contemplate a return filed beyond the dates specified under Sections 139(1), 139(4), 142(1) or 148 of the IT Act as non-est or invalid returns. He refers to the provisions of Sections 139(8), 139(9) and Section 234A of the IT Act to demonstrate that under the said provisions, returns filed beyond the due date specified under Sections 139, 142 and 148 are accepted for the purposes of limiting the accrual of interest on the tax amounts assessed against an assessee. It is pointed out that Section 139(8) and Section 234A treat a return filed after the time specified under Sections 139, 142 or 148 as a valid return and interest is charged only from the specified date till the date of fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r)] 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) Ltd. v. CIT - [Civil Appeal No.1761 of 2006]. ● Reliance is placed on the judgment of the Supreme Court in The Mavilayi Service Co-operative Bank Ltd. and Others v. Commissioner of Income Tax, Calicut and Others - [431 ITR 1 (SC)] to contend that if there is any ambiguity while considering a claim for deduction under Section 80P of the IT Act, the revenue authorities have to read the statutory provisions in favour of the assessee. It is pointed out that in the instant case, the revenue authorities have relied on a technicality to deny the benefit of the claim for deduction under Section 80P(2)(a)(iii) of the IT Act to the assessee. 10. We have considered the rival submissions of Sri. S.Arun Raj, the learned counsel appearing for the appellant/assessee and Sri. Christopher Abraham, the learned Standing Counsel for the Income Tax Department. 11. On a consideration of the rival submissions and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 consider the findings of a Division Bench of this Court in The Chirakkal Service Co-operative Bank Ltd. [supra]. The findings therein, that appear to suggest that a claim for deduction under Section 80P can be entertained even if it is made in a return filed beyond the time permitted under the IT Act, ignores the perspective that sees the requirement of the claim for deduction being made in a valid return as a pre-condition for obtaining the benefit of the statutory deduction. The said findings also fly in the face of the express statutory provisions that requires the claim to be made in a return filed by the assessee, by which term is meant a valid return under the Act, and therefore have necessarily to be seen as per incuriam. We also find that the subsequent amendments to Section 80AC by the Finance Act 2018 fortifies the view that we have taken for, it makes the claim for deduction under Section 80P co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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