TMI Blog2024 (3) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ore the AO. Hon ble Gujarat High Court in the case of Rachna Infrastructure Pvt. Ltd [ 2022 (3) TMI 256 - GUJARAT HIGH COURT] held that assessee was not eligible for deduction u/s 80IA as per Section 80A (5) of the Act as Assessee had not claimed the deduction in the Return of Income. Decided against assessee. - Shri S.S.Godara, Judicial Member And Dr. Dipak P. Ripote, Accountant Member For the Assessee : None For the Revenue : Shri Sourabh Nayak Addl.CIT(DR) ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the assessee against the order of Ld.Commissioner of Income Tax(Appeals)[NFAC], passed under section 250 of the Income Tax Act, 1961 dated 11.05.2023 emanating from assessment order dated 30.07.2019 passed under section 144 r.w.s 144A of the Income Tax Act, 1961. The assessee has raised the following grounds of appeal : 1. The assessee was in presumption that Co Operative Societies income is Exempt under 80P Generally maximum co operative societies are under this presumption. So that they have not Tiled Income Tax return The statutory audit for FY 2016 17 was carried out by the Society as required by the Co-Operative Department and there was no proper guidance wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e not similar to above. Also in order at Point no.10 the in case of ITO vs MSEB Employees Co-operative Credit Society Ltd (supra), the coordinate bench has held that even if the assessee has not claimed a deduction in 9 ITA 6029/Mum/2019 the return of income, the appellate authorities have power to allow deduction which is allowable under the provisions of the Act So we request Appellate Authority to Allow us to File Income Tax Return and Claim deduction under section 80P. 12. Secondly CIT(A) has while disallowing Appeal has placed reliance on the Case Medi Seva SahakariMandali Ltd.,... vs The Adit (Cpc), Bangalore,... on 31 October, 2022 - In this we observed that the Case is basically relates to AY 2019-20 and the Appellate Tribunal disallowed the deduction u/s 80P on the basis of section 80AC of income Tax Act 1961. But our case relates to AY 2017-18. Section 80AC was amended wef 01.04.2018 prospectively. Before 31.03.2018 Section 80AC was applicable to any deduction is admissible under section 80-IA or section 80-IAB or section 80-IB or section 80-IC or section 8Q-1D or section 80-IE only. The Current case of Society is for FY 2016-17 so we are in presumption that 80P is allowa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oted in the assessment order that it was observed from the Profit and Loss account of the assessee that Assessee had earned Net Profit of Rs. 70,22,686/- . The AO accordingly passed assessment order Assessing the Total Income of the assessee at Rs. 70,22,686/-. (i.e. as per the Net Profit Shown in the Profit and Loss account by the assessee). 5. Aggrieved by the Assessment Order, the Assessee filed Appeal before the Ld.Commissioner of Income Tax(Appeal).The main grievance of the assessee before the Ld.Commissioner of Income Tax appeal was that the AO had denied benefit of deduction under section 80P of the Act. The Ld.CIT(A) upheld the Assessment Order. 6. Aggrieved by the order of the Ld.CIT(A), the assessee has filed appeal before this ITAT. 6.1 The assessee has raised total 8 grounds but the issue is denial of benefit of deduction under section 80P of the Act. 7. We have perused the Assessment Order and Ld.CIT(A) s order, nowhere it is mentioned that Assessee had made a claim for deduction u/s 80P of the Act for a particular Income. Before us, the Assessee had not filed a single document to demonstrate that the Assessee had made claim for Deduction u/s 80P of the Act. It means t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for claim of deduction in relation to income under any of the provisions mentioned therein. Apart from the requirement of fulfilment of individual set of respective conditions for the purpose of claiming the concerned deduction, this plenary condition requires that the claim ought to have made in the return of income by the assessee and if the assessee fails to make such claim in the return of income, such deduction shall not allowed to him under the relevant provision. Admittedly, in the present case, the Petitioners had not raised any such claim in the return of income. In plain terms, the claim of the Petitioners under Section 80-IB (10) of the Act would be hit by Sub Section (5) of Section 80A of the act. .. . What Sub Section (5) of Section 80A of the Act mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income Tax Authority. This condition attaches to the claim of the assessee and has to be implemented by the Assessing Officer, CIT or the Appellate Tribunal as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 459 ITR 730 (Kerala) [14-03-2023], has held as under : Quote, 1. On a consideration of the rival submissions and on a perusal of the statutory provisions, we find that a reading of section 80A(5) and Section 80AC of the IT Act as they stood prior to 1-4- 2018, when the latter provision was amended by Finance Act 2018, would reveal that the statutory scheme under the IT Act was to admit only such claims for deduction under section 80P of the IT Act as were made by the assessee in a return of income filed by him. That return can be under sections 139(1), 139(4), 142(1) or section 148, and to be valid, had to be filed within the due date contemplated under those provisions. Under section 80A(5), the claim for deduction under section 80P could be made by an assessee in a return filed within the time prescribed for filing such returns under any of the above provisions. The amendment to Section 80AC with effect from 1- 4-2018, however, mandated that for an assessee to get a deduction under section 80P of the IT Act, he had to furnish a return of his income for such assessment year on or before the due date specified in section 139(1) of the IT Act. In other words, after 1-4-2018, even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 under section 139(1) of the IT Act. In other words, 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 .. In the light of the aforesaid discussion, we find that the above questions of law have to be answered in favour of the Revenue and against the assessee, and we do so. Thus, these I.T. Appeals are disposed by answering the substantial questions of law raised therein, in favour of the Revenue and against the assessee. Unquote. 7.8 The Hon ble Gujarat High Court in the case of Rachna Infrastructure Pvt. Ltd., Vs. Pr.CIT 138 taxmann.com 416 (Gujarat)[15-02-2022] held that assessee was not eligible for deduction u/s 80IA as per Section 80A (5) of the Act as Assessee had not claimed the deduction in the Return of Income. 7.9 Thus, the Law laid down by the Hon ble Jurisdictional High Court(supra) and Hon ble Kerala High Court is that Assessee has to claim Deduction Under Chapter VIA of the Act un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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