ITO 24(2)(4), MUMBAI V. YASHASHVI DEVELOPERS, MUMBAI

ITA 3645/MUM/2012

• Counselvise Citation: 364519914 RSA 2012
• Duration Of Justice: 2 year(s) 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 30-07-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ADAGIRI
• Assessee Lawyers: S C TIWARI; NATASHA MANGAT
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI R.C SHARMA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 3645/MUM/2012 ASSESSMENT YEAR: 2008-09 ITO 24(2)(4) R. NO. 605, 6 TH FLOOR, C/13, PRATAYASHKAR BHAVAN BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-51 VS. M/S. YASHASHVI DEVELOPERS, 101/3, KEDIA CHAMBERS, SV ROAD, MALAD (W), MUMBAI- 64 (APPELLANT) (RESPONDENT) PERMANENT ACCOUNT NO. :- AAAFY 2929 A ASSESSEE BY : SHRI S.C. TIWARI & NATASHA MANGAT REVENUE BY : SHRI B. YADAGIRI DATE OF HEARING : 30.07.2014 DATE OF PRONOUNCEMENT : 27.08.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST THE ORDER OF THE LD.CIT(A) -34, MUMBAI DATED 16.03.2012 FOR THE ASSE SSMENT YEAR 2008-09. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLO WING GROUNDS:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, WHETHER THE LD. CIT(A) WAS RIGHT IN ALLOWING THE ASSESSEES CLA IM OF DEDUCTION U/S 80IB(10) WHEN THE ASSESSEE HAS NOT FILED RETURN OF INCOME WITHIN THE TIME LIMIT U/S 139(1) AND WHEN SECTION 80AC SPECIFICALLY PROVIDES THAT NO DEDUCTION SHALL BE ALLOWED UNLESS RETURN IS FURNISH ED WITHIN TIME LIMITS OF SECTION. 139(1). ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A N IN LAW, WHETHER THE LD.CIT(A) WAS JUSTIFIED IN ALLOWING THE DEDUCTION U /S 80IB(10) PLACING RELIANCE MUMBAI ITAT DECISION IN CHICAGO PNEUMATIC INDIA LTD. (2007) 15SOT 252 & PUNJAB HIGH COURT DECISION IN JAGRUTI AGARWAL [339 ITR 610 (P&H)], WHEN THE FACTS OF THE ASE ARE DISTINGUISHABLE FROM THE ASSESSES CASE. ITA NO. 3645/MUM/2012 M/S. YASHASHVI DEVELOPERS, ASSESSMENT YEAR: 2008-09 2 3. BRIEFLY STATED, THE ASSESSEE FILED ITS RETURN OF INCOME ON 30.09.2009, WHEREAS THE DUE DATE FOR FILING THE RETURN WAS 30.09.2008 F OR THE YEAR UNDER CONSIDERATION. THE AO, FOLLOWING THE PROVISIONS OF SECTION 80AC, D ISALLOWED THE DEDUCTION OF RS.13,88,453/- CLAIMED BY THE ASSESSEE U/S 80IB(10) OF THE INCOME-TAX ACT. ON APPEAL, THE LD.CIT(A), BY HOLDING THAT THE ASSESSEE HAD FILED THE RETURN WITHIN THE EXTENDED TIME AVAILABLE U/S 139(4) OF THE ACT, DIRE CTED THE AO TO ALLOW THE CLAIM OF THE ASSESSEE U/S 80IB(10). AGGRIEVED BY THE IMPUGNE D ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. BEFORE US, THE LD.DR HAS VEHEMENTLY ARGUED THAT THE ORDER OF THE IMPUGNED LD.CIT(A) IS IN CONTRAVENTION OF THE PROVISIONS OF SECTION 80AC WHICH SPECIFICALLY PROVIDES NO DEDUCTION SHALL BE ALLOWED UNLESS THE R ETURN IS FILED WITHIN TIME LIMITS OF SECTION 139(1). ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED A COMPILATION CONSISTING OF VARIOUS DECISIONS INCLUDI NG THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. M/S. YASH DEVELOPERS IN ITA NO. 809/MUM/201 1, IN SUPPORT OF THE ASSESSEES CASE. 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MAT ERIAL ON RECORD ON RECORD. IT IS PERTINENT TO MENTION THAT THE ISSUE RAISED IN THE PRESENT APPEAL IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF SAFFIRE GARMENTS VS. ITO (2013) 140 ITD 6 (RAJKOT) (SB), WHEREIN IT HAS BEEN HELD THAT THE RESTRICTION PROVIDED BY WAY OF T HE PROVISO TO SECTION 10A(1A) IS MANDATORY AS THE MATTER GOVERNS FILING OF THE RETUR N OF INCOME WITHIN THE DUE DATE PROVIDED UNDER SECTION 139(1). THEREFORE, WE FIND T HAT THE SAID DECISION OF THE SPECIAL BENCH APPLIES NOT ONLY TO SECTION 10A, BUT ALSO TO SECTIONS 10B AND 80AC. IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE DECISION RENDERED BY THE SPECIAL BENCH OF THE TRIBUNAL, RAJKOT IN THE CA SE SAFFIRE GARMENTS (SUPRA) , WE HOLD THAT FILING OF RETURN UNDER SECTION 139(1) WIT HIN THE DUE DATE PRESCRIBED UNDER LAW IS A MANDATORY PROVISION. IF THE ASSESSEES WANT S TO CLAIM DEDUCTION UNDER SECTION 80IB(10), IT IS NECESSARY THAT THE ASSESSEE S MUST FILE THE RETURNS OF INCOME BEFORE THE DUE DATE PRESCRIBED UNDER SECTION 139(1) OF THE INCOME-TAX ACT, 1961. IT IS PERTINENT TO MENTION THAT THE SAID DECISION OF T HE SPECIAL BENCH HAS NOT BEEN CONSIDERED BY THE TRIBUNAL IN THE CASE OF ITO VS. M/S. YASH DEVELOPERS, WHICH HAS ITA NO. 3645/MUM/2012 M/S. YASHASHVI DEVELOPERS, ASSESSMENT YEAR: 2008-09 3 BEEN RELIED ON BY THE ASSESSEE. MOREOVER, LOSS RETU RN CAN BE FILED WITHIN TIME SPECIFIED U/139(4) AND THE DISPUTE, IN THE INSTANT CASE IS REGARDING FILING OF RETURN OF INCOME WITHIN THE TIME ALLOWED U/S 139(1) OF ACT, 1 961 AND NOT U/S 139(4) OF THE INCOME TAX ACT, 1961 AND HENCE, THE DECISIONS RELIED ON BY THE ASSESSEE ARE ALSO NOT APPLICABLE IN THE PRESENT CASE. IN VIEW OF THAT MA TTER, WE OVERTURN THE ORDER OF THE LD.CIT(A) AND HOLD THAT THE ASSESSEE IS NOT ENTITLE D TO CLAIM THE DEDUCTION U/S 80IB(10) DUE TO FILING OF THE RETURN NOT WITHIN THE TIME LIMIT PROVIDED U/S 139(1) IN CONTRAVENTION OF THE PROVISIONS OF 80AC. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF AUGUST, 2014 SD/- SD/- (R.C. SHARMA) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 27.08.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR G BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.