Sri Kailash Modi, Tinsukia V. Income Tax Officer, Ward-1, Tinsukia

ITA 296/GTY/2018

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9031 (ITAT-GUWAHATI)
• Duration Of Justice: 4 year(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2022
• Assessment Year: 2016-2017
• Appeal Filed On: 24-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Reasonable cause
• Section: 139; 143(3); 143(1); 80IC; 139(1); 80IC; 119

Judgement Text

आयकर अपील य अ धकरण, ‘GAUHATI पीठ , कोलकाता आभासी मा यम से IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH VIRTUAL HEARING AT KOLKATA सम : ी राजपाल यादव, उपा य , एवं ी मनीष बोरड, लेखा सद य Before: SHRI RAJPAL YADAV, VICE PRESIDENT (KZ) and SHRI MANISH BORAD, ACCOUNTANT MEMBER आयकर अपील सं.य/ ITA No.296/GAU/2018 नधा रण वष / Assessment Year:2016-17 Sri Kailash Modi Behind UCO Bank,Modi House, Makum Road, Tinsukia-786125, Assam बनाम / V/s. ITO, Ward-1, Tinsukia, 786125,Assam. PAN: ACVPM 8844M अपीलाथ /Appellant .. यथ /Respondent अपीलाथ क ओर से/By Appellant Shri Sanjay Modi, FCA. Ld.AR यथ क ओर से/By Respondent Shri N.T Sherpa, JCIT, Ld.SR- DR स ु नवाई क तार ख/Date of Hearing 06-09-2022 घोषणा क तार ख/Date of Pronouncement 3 -11-2022 आदेश /O R D E R PER MANISH BORAD, AM. The present appeal has been preferred by the assessee against the order dated 22-08-2018 of the Ld. Commissioner of Income-tax (Appeals), [hereinafter referred to as ‘CIT(A)’], Dibrugarh [hereinafter referred to as ‘CIT(A)’] for the assessment year 2016-17. ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 2 2. The assessee has raised the following grounds:- 1. For that the order passed by the learned Commissioner of Income Tax (Appeals) [CIT(A)] is bad in law, facts and procedure. 2. For that on the facts and circumstances of the case. the order of the Id. CIT(A) being contrary to the decision of the Hon'ble Apex Court in the case of CIT v. Vegetable Products Ltd. (1972) 88 ITR 192 (SC), the same is bad in law and unsustainable. 3. For that on the facts and circumstances of the case, the Id. CIT(A) was not justified in confirming disallowance of statutorily allowable deduction under section Ba-lE of the Act of Rs. 7q16,054/- made by the Id. AO in an intimation passed under section 143(1) of the Act without allowing any opportunity of being heard to the appellant. 4. For that without prejudice to ground nos. 2 and 3 above, alternatively, statutorily allowable credit under section 115JD of the Act in respect of taxes paid in earlier years as Alternate Minimum Tax ought to have been allowed to the appellant. 5. For that the impugned order of the Id. CIT(A) being passed in gross violation of the principles of natural justice and without allowing any opportunity of being heard in respect of decisions relied upon by him in the impugned order, the same is bad in law. 6. For that the appellant denies its liability of being charged off of interest under section 234G of the Act at Rs. 23,923/-. For that the aforesaid charge of interest being not in accordance with the law, the same may kindly be deleted in its entirety. 7. For that your appellant craves leave of your honours to take additional ground or grounds and/or to modify any ground(s) of appeal at or before the time of hearing. 3. Brief facts of the case as culled out from records are that the assessee, who is an individual, furnished a belated return for the AY 2016-17 on 09-03-2017(due date u/s. 139(1) of the Act 17-10-2016) declaring total income at Rs.4,99,180/- arrived at after claiming deduction u/s. 80 IE of the Act at Rs.74,16,056/-. The case was processed u/s. 143(3) of the Act and deduction u/s. 80IE of the Act was denied on the ground that the assessee has not filed return of income before the due date prescribed u/s. 139(1) of the Act. ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 3 4. Aggrieved, the assessee preferred appeal before the ld. CIT(A) challenging the said disallowance made under processing 143(3) of the Act by the CPC, Bangalore, but failed to find any relief. 5. Aggrieved, now the assessee is now in appeal before this Tribunal. 6. The Ld. Counsel for the assessee stated that case of the assessee is squarely covered by various decisions, wherein such deduction has been allowed even when return was filed belated. Reference was made to the paper book containing 21 pages as well as copy of decisions filed before this tribunal on earlier dates. 7. Per contra, the Ld. Departmental Representative vehemently argued supporting the orders of the lower authorities. 8. We have heard the rival contentions and perused the material placed before us. The sole grievance of the assessee is that the ld. CIT(A) erred in not allowing deduction u/s. 80IE of the Act for the sole reason that the return of income filed by the assessee was belated. We find that both the lower authorities have denied the claim of assessee applying the provisions of section 80AC of the Act, which reads as follow:- “80AC: Deduction not to be allowed unless return furnished. Where in computing the total income of an assessee of the previous year relevant to the assessment year commencing on the 1 st day of April, 2006 or any subsequent assessment year, any deduction is admissible under section 80-IA or section 80-IAB or section 80- IB or section 80-IC or section 80-ID or section 80-IE;, no such deduction shall be allowed to him unless he furnishes a return of his income for such assessment year on or before the due date specified under sub-section (1) of section 139 “. 9. On bare perusal of the above section 80AC of the Act, we find that there cannot be a second opinion that for claiming of deduction u/s. 80IE of the Act, the mandatory/statutory condition is that the return should be filed before the due date provided u/s. 139(1) of the Act. Undisputedly due date ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 4 for filing of return of income applicable to assessee for AY 2016-17 was 17- 10-2016, but the assessee filed his return belated on 09-03-2017. So the basic condition for the assessee to be eligible for claim of deduction u/s. 80IE remained unfulfilled. There may be reasonable cause on the part of the assessee for the delay in filing the return. But such delay cannot be condoned at the end of this Tribunal and specific provisions are provided under the Act under clause (b) and ( c ) of section 119(2) of the Act, which reads as under:- “Section 119(2)(c ): Instructions to subordinate authorities. 119. (1) (a) & ( b) *** *** *** (2) (a) ) *** *** *** (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship" in any case or class of cases, by general or special order, authorise 13[ any income-tax authority, not being a 14[···] Commissioner (Appeals)] to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law; (c) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases, by general or special order for reasons to be specified therein, relax any requirement contained in any of the provisions of Chapter IV or Chapter VI-A, where the assessee has failed to comply with any requirement specified in such provision for claiming deduction thereunder, subject to the following conditions, namely:— (i) the default in complying with such requirement was due to circumstances beyond the control of the assessee; and (ii) the assessee has complied with such requirement before the completion of assessment in relation to the previous year in which such deduction is claimed : Provided that the Central Government shall cause every order issued under this clause to be laid before each House of Parliament. ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 5 10. On going through the provisions of clause (b) and ( c) of sub-section (2) of section 119 of the Act, we find that the window is open for the assessee to approach the Board under the above stated provisions of said section and if such delay is condoned even if the return is filed belated, the assessee would be entitled to claim the deduction u/s. 80IE of the Act. However, before us no such order of the CBDT has been placed, which could show that such delay in filing the return has been condoned. The assessee should have moved an application to the Central Board of Direct Taxes ( short, the ‘Board’), which may if considering desirable or expedient so to do for avoiding genuine hardship in any case or clause of cases either may authorize any Income-tax authority not being the Commissioner (Appeals), to admit such application and deal with the same in accordance with law or itself pass a general or special order and if the assessee’s application is accepted in the manner provided above, then the deduction under Chapter IV/VIA may be allowed. 11. However, in the instant case the assessee has failed to bring forth any such communication or any order condoning such delay in filing return of income before the due date specified u/s. 139(1) of the Act. 12. As far as decisions referred by the Ld. Counsel for the assessee are concerned, we do not find it necessary to refer the same, since the provisions of the I.T. Act are very much clear and there cannot be two opinions for interpreting the provisions of section 80AC to the extent claiming that for deduction u/s. 80IE of the Act return of income is mandatorily required to be filed within the due date as prescribed u/s. 139(1) of the Act. Therefore, the decisions referred by the Ld. Counsel for the assessee cannot be of any help to the assessee in the instant appeal. ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 6 13. We, therefore, under the given facts and circumstances of the case are of the considered view are that since the assessee has filed belated return, the claim of deduction under section 80IC of the Act cannot be entertained/allowed as the assessee is directly hit by provisions of section 80AC of the Act. We, thus, fail to find any infirmity in the finding of the ld. CIT(A) denying assessee’s claim of deduction u/s. 80IC of the Act. However, if deemed fit, the assessee can still approach the Board for consideration of its case and if the Board finds merit in the reason of genuine hardship faced by the assessee in filing the return before due date u/s. 139(1) of the Act, the case of the assessee may be considered sympathetically. Further. if such permission is granted by the Board, then the ld. AO may allow claim of deduction of the assessee u/s.80IC of the Act in accordance with law. . We, therefore, fail to find any infirmity in the finding of ld. CIT(A). Thus, ground nos. 1 to 5 raised by the assessee are dismissed. Ground nos. 6 and 7 are consequential and general in nature, which needs no adjudication. 14. In the result, the appeal of the assessee is dismissed. Order pronounced in open court on 03-11-2022 आदेश ख ु ले यायपीठ म दनांक 03-11-2022 को उ घो षत। Sd/- Sd/- ( राजपाल यादव, उपा य ) ( मनीष बोरड, लेखा सद य) (RAJPAL YADAV) (MANISH BORAD) VICE PRESIDENT (KZ) ACCOUNTANT MEMBER Dated/ दनांकः- 03-11/2022 Kolkata/ कोलकाता **PP/Sr.PS आदेश क त ल प अ े षत / Copy of Order Forwarded to:- ITA No. 296/Gau/2018 AY 2016-17 Sri Kailash Modi Page 7 1. अपीलाथ /Appellant- Sri Kailash Modi, Behind UCO Bank,Modi House, Makum Road,Tinsukia-786125, Assam 2. यथ /Respondent-ITO, Ward-1, Tinsukia, 786125,Assam. 3. संबं धत आयकर आय ु त / Concerned CIT 4. आयकर आय ु त- अपील / CIT (A) 5. वभागीय त न ध, आयकर अपील य अ धकरण / DR, ITAT, Guwahati 6. गाड फाइल / Guard file. /True Copy/ By order/आदेश से, सहायक पंजीकार आयकर अपील य अ धकरण,कोलकाता ।