TMI Blog2024 (2) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... of return on time - as argued merely because return of income is not filed within the time limit prescribed u/s. 139(1) that by itself cannot be the reason for rejecting the claim of deduction u/s. 80IB(10) - HELD THAT:- In the present case, the assessee is claiming deduction u/s. 80IB(10) and the Income Tax Statute u/s. 80IB(10) is also uses the word shall and therefore the condition of filing the return of income within the due date is mandatory in nature. Though the decision of H.P. Housing and Urban Development [ 2023 (12) TMI 1267 - HIMACHAL PRADESH HIGH COURT ] states that the assessee is entitled to claim specifically the computed deductions despite late filing of belated return of income, in the present case, the statutory date for filing the return of income was that of 30-09-2007 and the search operations took place on 19-02-2005 and the details were available in the month of Nov, 2006 as stated by the assessee before the CIT(A) as well as before us. The reasoning given by the assessee that within a period of six months from the date of filing of return of income for assessment year 2006- 07, the assessee have filed return of income for assessment year 2007-08 will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore prayed that the order of the Ld. CIT(A) may be set aside and that of the order of the Assessing Officer be restored to the above extent. ITA No. 796/Ahd/2011 A.Y. 2007-08 filed by Assessee 1. The learned Commissioner of Income Tax(Appeals) has erred in confirming the action of the Assessing Officer in rejecting the books of accounts of the appellant u/s. 145 of the I.T. Act, 1961. 2. The Learned Commissioner of Income Tax (Appeals) has erred in confirming the disallowance of deduction of Rs. 13,68,61,112/- claimed by the appellant u/s. 801B(10) of the I.T. Act, 1961 being an amounts for the deductions claimed of Rs. 6,20,64,195/- in Swaminarayan Enterprise, Rs. 3,89,76,532/- in Ghanshyam Enterprise and Rs. 3,58,20,384/- in Neelkanth Enterprise as per Form No.10CCB certified by The Chartered Accountant. 3. The Learned Commissioner of Income Tax (Appeals) has erred in holding that there is non compliance of the provisions of section 80AC of the Act. He ought to have considered the fact that on account of the search the finalization of accounts of the earlier years were delayed on account of the late availability of the account books other material b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved on the assessee on 15-10-2009. Vide letter dated 26-10-2009, the assessee in compliance to notices issued u/s. 142(1) of the Act submitted hard copy of return of income for assessment year 2007-08. Statement of total income for cost forming the part of the statement of income, audit report u/s. 44AB of the Act and filed audit account with annexures, appendixes and enclosures were filed. The Assessing Officer observed that as provided u/s. 139(1) of the Act, the assessee was required to file his return of income by 30-09- 2007. The assessee has claimed deduction under chapter VIA of the Act specially under 80IB(10) amounting to Rs. 13,68,61,112/-. The Assessing Officer observed that the claim of deduction u/s. 80IB(10) of the Act has to further certain requirements which was specifically quoted from para 9 to 13 of the assessment order. The Assessing Officer further observed that in view of non-compliance of sub-section 80AC to his fulfillment of conditions led down in section 80IB(10), the submissions of Form No. 10CCB which is abinitio on account of grounds that the assessee has filed the return of income beyond the time allowed u/s. 139(1) of the Act as well as the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere with the finding of the CIT(A) on this issue. Hence, the appeal filed by the Revenue is dismissed. 8. As regards the assessee s appeal, the ld. Authorized Representative submitted that merely because return of income is not filed within the time limit prescribed u/s. 139(1) that by itself cannot be the reason for rejecting the claim of deduction u/s. 80IB(10) of the Act. The fact of the matter is that the return of income is filed u/s. 139 of the Act and is duly accompanied by the TAR and report for claim u/s. 80IB(10) of the Act. Though the word shall be used as u/s. 80IB(10) which denotes the condition has to be mandatorily followed in certain situations the term shall also includes hm. Provisions should not be so strictly constructed and the reason for not fling being bonafide and genuine should be considered. The Assessing Officer has completely mis-understood the contentions of the assessee. The search operations took place on 09-02-2005 during the course of search proceedings. The books of accounts and other documents and records were seized by the Department. After various applications, the details were made available only in the month of Nov, 2016. Thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g balances are adopted the process of the complete books of accounts commences. The ld. Authorized Representative relied upon the following decisions:- 1. Judgment of Hon'ble Gujarat High Court in case of Goodluck Automobiles Pvt. Ltd. 2. Judgment of Hon'ble Gujarat High Court in case of Pushpadhanwa Estate Owners Association 3. Order of Hon'ble Ahmedabad Tribunal in case of Rajhans Builders 41 SOT 331 4. Order of Hon'ble Ahmedabad Tribunal in case of Vallentine Cine Vision Ltd ITA #2497/Abd/2009 5. Order of Hon'ble Chennai Tribunal in case of Shri R Samiappan ITA#237/Mds/2009 6. Order of Hon'ble Vishakhapatnam Tribunal in case of Dr Gangina Suguna Rajahmundry ITA #173 174/Vizag/2011 7. Order of Hon'ble Chennai Tribunal in case of Sahul India Ltd ПА # 768 769/Kol/2011 8. HP Housing Urban Development Authority (HIMUDA) 157 taxmann.com 598 Himachal Pradesh 9. Fiberfill Engineers 85 taxmann.com 27 Delhi 10. Chirakkal Service C- Operative Bank Ltd. 68 taxmann.com 295 Kerala 11. Shreeji Developers 37 taxmann.com 272 Gujarat 9. The ld. Departmental Representative relied upon the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us. The reasoning given by the assessee that within a period of six months from the date of filing of return of income for assessment year 2006- 07, the assessee have filed return of income for assessment year 2007-08 will not help the assessee as the assessee was very well aware of mandatory date of filing the original return of income. The decision of Hon ble Apex Court has not been considered in the context of the mandatory filing and the compliance of the due date as given u/s. 80AC including that of decision of Hon ble Himachal Pradesh High Court as well as the order of the Tribunal passed in ITA 415/2020 order dated 16-06-2023. As regards, the decisions of Hon ble Gujarat High Court in case of Goodluck Automobile Pvt. Ltd. Pushpadhanwa Estate Owners Association, the said decisions were taken in the context of the facts emerging in those respective assessee s cases in present assessee s case facts remains that return was filed belatedly that is beyond due date despite availability of record after the search seizure in Nov, 2006. The plea of Assessee that within short time the assessee cannot file return will not come to rescue the assessee because the records were a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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