DWARKADAS G. PANCHMATIYA, MUMBAI V. ACIT 25(1), MUMBAI

ITA 4727/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88093 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 20-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 16-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVARAM; NEELAM C JADHAV
• Keywords: Revised return
• Section: 143(3); 234B; 80IB; 139

Judgement Text

4727/MUM/12 , IN THE INCOME TAX APPELLATE TRIBUNAL D B ENCH, MUMBAI , , , BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER ./ I.T.A. NO.4727/MUM/2012 ( / ASSESSMENT YEAR : 2008-09) SHRI DWARAKADAS G. PANCHMATIYA M/S. SHYAM DEVELOPERS B-1401, NAMAN TOWERS, NEAR SHOPPERS STOP, KANDIVALI (W) MUMBAI-400 067. / VS. ACIT - 25(1) C-11, 2 ND FLOOR, R.NO.202 PRATYKSHAKAR BHAVAN BANDRA KURLA COMPLEX BANDRA (E) MUMBAI-52. ./ ./PAN/GIR NO. : AHFPP 9598 N ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : DR. K. SHIVARAM AND MS. NEELAM C. JADHAV / RESPONDENT BY : SHRI L UV KUMAR DR !' # $ / DATE OF HEARING : 20 /01/2015 %&' $ / DATE OF PRONOUNCEMENT : 30 /01/2015 ( / O R D E R PER BENCH : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 29/05.2012 OF CIT(A) FOR THE ASSESSMENT YEAR 2007-08. THE ASSESSE E HAS RAISED THE FOLLOWING GROUNDS:- GROUND NO.1 : ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, LD. CIT(A)-35 ERRED IN HOLDING THAT THE APPEL LANT HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 80AC WHILE CLAIMING THE DEDUCTION OF RS.1,02,38,221/- U/S. 80IB. GROUND NO.2 : ON THE FACTS AND IN THE CIRCUMSTANCE S OF THE CASE AND IN LAW, LD. CIT(A)-35 ERRED IN NOT GRANTING THE BENEF IT OF LIBERAL 2 ITA NO.4727MUM/12 INTERPRETATION TO APPELLANT FOR VENIAL BREACH OF DE LAY BY ONE DAY ON FILING ITR-V FOR ASSESSMENT YEAR UNDER APPEAL WHILE AVAILI NG THE DEDUCTIONS UNDER CHAPTER VI A WHICH ARE OF BENEVOLENT NATURE. 2. THE RELEVANT FACTS GIVING RISE TO THE DISPUTE AR E THAT THE ASSESSEE IS A PROPRIETOR OF M/S. SHAYAM DEVELOPERS AND IS ENGAGED IN THE BUSIN ESS OF DEVELOPMENT OF REAL ESTATE AND CONSTRUCTION OF BUILDING. THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-09 WAS FILED THROUGH ELECTRONIC FILING ON 30/09/2008 W HICH WAS THE DUE DATE OF FILING OF RETURN OF INCOME U/S. 139(1). IN THE RETURN THE ASS ESSEE CLAIMED DEDUCTION U/S. 80IB(10) AT RS.1,02,38,221/- AND DECLARED TOTAL INC OME OF RS.69,89,936/-. THE ASSESSEE VERIFIED THE FORM ITR-V AND PHYSICALLY FIL ED THE SAME ON 16/10/2008. THE AO HAS DENIED THE CLAIM OF DEDUCTION U/S. 80IB(10) ON THE GROUND THAT THE ASSESSEE HAS NOT COMPLIED WITH THE PROVISIONS OF SECTION 80AC OF THE ACT BECAUSE THE PHYSICAL RETURN WAS NOT FILED WITHIN THE TIME PERIOD AS PER THE CBD T NOTIFICATION NO.SO1281(E) DATED 27/07/2007. THE INCOME RETURNED DULY VERIFIED SHOUL D HAVE BEEN PHYSICALLY SUBMITTED WITHIN A PERIOD OF 15 DAYS FROM THE DATE OF FILING OF E-RETURN, BUT THE ASSESSEE SUBMITTED THE SAME ONLY ON 16/10/2008 WHICH IS BEYO ND THE TIME PERIOD PERMITTED AS PER THE SCHEME OF THE E-RETURN FILING. THE ASSESSEE CHALLENGED THE ACTION OF THE AO BEFORE THE CIT(A) AND CONTENDED THAT WHEN THE ASSES SEE FILED ITS RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED U/S. 139(1) THEN THE PROVISIONS OF SECTION 80AC ARE COMPLIED AND THEREFORE, THE CLAIM OF DEDUCTION U/S. 80IB(10) CANNOT BE DENIED ON THE GROUND THAT THE PAPER RETURN WAS FILED ON 16 TH DAY AFTER THE E-RETURN WAS FILED AND THERE WAS ONLY A ONE DAY DELAY IN FILING THE PHYSIC AL RETURN. IT WAS FURTHER CONTENDED THAT THE ASSESSEE DOES NOT FALL IN THE CATEGORY OF ELIGIBLE PERSON FOR SUBMITTING THE DULY VERIFIED FORM ITR-V AS PER THE CBDT NOTIFICATION DA TED 27/07/2007. THE CIT(A) DID NOT AGREE WITH THE SUBMISSIONS OF THE ASSESSEE AND HELD THAT THE E-RETURN FILED BY THE ASSESSEE WILL BE TREATED AS A RETURN FILED ON THE DATE IF A VERIFIED PHYSICAL RETURN IS FILED WITHIN 15 DAYS FROM THE DATE OF FILING THE E-RETURN . ACCORDINGLY, THE CIT(A) HAS CONFIRMED THE ACTION OF THE AO IN DENYING THE DEDUC TION U/S. 80IB(10). 3 ITA NO.4727MUM/12 2.1 BEFORE US THE LD. AR OF THE ASSESSEE HAS SUBM ITTED THAT THE AUTHORITIES BELOW HAVE ERRED IN HOLDING THAT THE ASSESSEE IS NOT ENTI TLED TO DEDUCTION U/S. 80IB OF THE ACT FOR WANT OF COMPLIANCE OF PROVISIONS OF SECTION 80A C OF THE INCOME TAX ACT. HE HAS CONTENDED THAT THE REQUIREMENT OF SECTION 80AC IS T O FILE THE RETURN ON OR BEFORE DUE DATE AS PRESCRIBED U/S. 139(1). THE ASSESSEE HAS CO MPLIED WITH THE REQUIREMENT OF SECTION 80AC BY FILING THE E-RETURN ON 30/09/2008. FURNISHING OF THE PHYSICAL RETURN IS A REQUIREMENT OF THE RULES AND NOTIFICATIONS OF THE CBDT AND IS NOT THE REQUIREMENT OF SUBSTANTIVE PROVISION OF THE ACT . THE REQUIREMENT OF FILING THE PHYSICAL RETURN WITHIN 15 DAYS OF FILING THE ELECTRONIC RETURN IS DIRECTOR Y IN NATURE AND THEREFORE, PHYSICAL RETURN FILED BELATEDLY BY ONE DAY WOULD NOT DIS-ENT ITLE THE ASSESSEE FOR CLAIM U/S. 80IB. HE HAS FURTHER CONTENDED THAT FURNISHING OF THE PH YSICAL PAPER IS DIFFERENT FROM THE FILING OF THE RETURN. ONCE THE ASSESSEE HAS FILED E -RETURN AND CLAIMED DEDUCTION U/S. 80IB IN THE RETURN THEN THE CLAIM CANNOT BE DENIED ON THE GROUND THAT THE ASSESSEE HAS FURNISHED PHYSICAL ITR ON 16/10/2008. HE HAS FURTHE R SUBMITTED THAT ALL THE DETAILS AND DATA OF THE RETURN OF THE ASSESSEE WERE TRANSMITTED ELECTRONICALLY TO THE DEPARTMENT SERVER ON THE DATE WHEN THE ASSESSEE FILED THE E-RE TURN AND, THEREFORE, FOR ALL PURPOSES THE RETURN WAS AVAILABLE WITH THE DEPARTMENT. HE HA S REFERRED TO THE DECISION OF DELHI BENCHES OF THE TRIBUNAL IN THE CASE OF HANSA DALAKOTI VS. ACIT (50 SOT 511) AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT THE CLAIM OF THE ASSESSEE U/S. 80IC CANNOT BE DENIED SIMPLY FOR THE REASON THAT THE RETURN OF THE INCOME WAS NOT FILED WITHIN THE DUE DATE AS PRESCRIBED U/S. 139(1) WHERE THE ASSESSEE H AS SUBMITTED NECESSARY DOCUMENTS WITH THE DEPARTMENT BEFORE DUE DATE OF FILING OF RE TURN AND DEFAULT OF THE ASSESSEE WAS ONLY TECHNICAL DEFAULT. THE LD. AR HAS SUBMITTED TH AT IN THE CASE OF THE ASSESSEE THE DEFAULT OF THE ASSESSEE OF ONE DAY DELAY IN FURNISH ING PHYSICAL RETURN IS ONLY TECHNICAL DEFAULT WHEN THE ASSESSEE HAS ALREADY COMPLIED WITH THE PROVISIONS OF SECTION 139(1) BY FILING E-RETURN WITHIN DUE DATE OF FILING THE RE TURN. HE HAS ALSO RELIED UPON THE DECISION OF THIS TRIBUNAL DATED 31/01/2014 IN THE C ASE OF ITO VS. M/S. YASH DEVELOPERS IN ITA NO.3644/MUM/2012 FOR ASSESSMENT YEAR 2008-09 . 4 ITA NO.4727MUM/12 2.2 THE LD. AR HAS RELIED UPON THE DECISION OF TH IS TRIBUNAL IN CASE OF EMERSON NETWORK POWER INDIA PVT. LTD. VS. ACIT (112 TTJ 67) AND SUBMITTED THAT THE TRIBUNAL HAS HELD THAT THE AO WAS OBLIGED TO GIVE DUE RELIEF TO THE ASSESSEE OR ENTERTAIN HIS CLAIM IF ADMISSIBLE AS PER LAW EVENTHOUGH THE ASSES SEE HAS NOT FILED REVISED RETURN. ALTERNATIVELY, THE LD. AR HAS SUBMITTED THAT CIRCUL AR OR NOTIFICATION OR DIRECTION CANNOT OVERRULE OR CURTAIL THE STATUTE. HE HAS SUBMITTED T HAT THE REQUIREMENT OF FURNISHING THE PHYSICAL RETURN WITHIN A PERIOD OF 15 DAYS IS PROVI DED UNDER THE RULES/NOTIFICATION OF CBDT WHICH CANNOT WHITTLE DOWN THE ACT OR STATUTE. THEREFORE THE CLAIM OF DEDUCTION CANNOT BE DENIED ON THE GROUND OF NON-COMPLIANCE OF RULE WHEN THE PROVISIONS OF THE ACT ARE DULY COMPLIED WITH. IN SUPPORT OF HIS CONTE NTION HE HAS RELIED UPON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF STATE OF MA DHYA PRADESH AND ANR. VS. G.S. DALL AND FLOUR MILLS (187 ITR 478)(SC). HE HAS ALSO REL IED UPON THE FOLLOWING THE DECISIONS :- 1. E.K.K. & CO. VS. ACIT (2013) 144 ITD 636 (COCHIN)(TR IB.) (AY : 2009-10); 2. CIT VS. S. CHENNIAPPA MUDALIAR (1969) 74 ITR 41(SC) (48); 3. CIT VS. NAGPUR HOTEL OWNERS ASSOCIATION (1994) 209 ITR 441 (BOM.)(HC); 4. CIT VS. GWALIOR RAYON SILK MANUFACTURING CO. LTD. (1992) 196 ITR 149 (SC)(156) 5. M/S. SAFFIRE GARMENTS VS. ITO (2013) 140 ITD 6 (SB) (RAJ.)(TRIB.) 2.3 ON THE OTHER HAND THE LD. DR HAS SUBMITTED THAT THE REQUIREMENT OF FILING THE PHYSICAL RETURN IN THE FORM ITR-V IS AS PER THE MA IN SCHEME OF ELECTRONIC FURNISHING OF RETURN OF INCOME SCHEME, 2007. THEREFORE, THE RETUR N OF INCOME WOULD NOT BE TREATED AS FILED WITHOUT THE DULY VERIFIED FORM ITR-V AND IS SUBMITTED WITHIN A PERIOD OF 15 DAYS FROM THE ISSUE OF PROVISIONAL RECEIPT FOR E-RE TURN. IN THE ABSENCE OF FILING FORM ITR-V WITHIN 15 DAYS FROM THE DATE OF ISSUE OF PROV ISIONAL RECEIPT IT WILL NOT BE TREATED AS RETURN OF INCOME FILED. THE LD. DR HAS REFERRED TO THE PROVISIONS OF SECTION 139(1) AND SUBMITTED THAT RETURN OF INCOME IS REQUIRED TO BE FILED IN THE PRESCRIBED FORM AND VERIFIED IN PRESCRIBED MANNER. THE PRESCRIBED FORM AND THE MANNER OF ITS VERIFICATION IS PROVIDED UNDER THE SCHEME AS WELL AS UNDER THE INCO ME TAX RULES. IT IS THE REQUIREMENT OF SEC. 139(1) THAT THE RETURN SHOULD B E FILED IN THE PRESCRIBED FORM AND 5 ITA NO.4727MUM/12 VERIFIED IN PRESCRIBED MANNER. THEREFORE, THERE IS NO CONTRADICTION BETWEEN THE PROVISIONS OF THE ACT AND RULES. HE HAS RELIED UPON THE ORDERS OF AUTHORITIES BELOW AS WELL AS THE DECISION OF THE SPECIAL BENCH OF THE TR IBUNAL IN THE CASE OF M/S. SAFFIRE GARMENTS VS. ITO (2013) 140 ITD 6 (SB)(RAJKOT)(TRIB UNAL). 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS PERUSED THE MATERIAL ON RECORD. THE FILING OF RETURN BEFORE THE DUE DATE SP ECIFIED UNDER SECTION 139(1) IS A MANDATORY CONDITION FOR AVAILING THE DEDUCTION INTE RALIA UNDER SECTION 80IB AS REQUIRED UNDER SECTION 80AC OF THE ACT. FOR READY REFERENCE WE QUOTE SECTION 80AC AS UNDER :- 80AC. DEDUCTION NOT TO BE ALLOWED UNLESS RETURN FU RNISHED. - 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 ASSE SSMENT 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 YEA R ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139. 3.1 THE LANGUAGE OF SECTION 80AC IS CLEAR AND UNAMB IGUOUS THAT ANY DEDUCTION ADMISSIBLE, INTERALIA, UNDER SECTION 80IB, SHALL NO T BE ALLOWED TO THE ASSESSEE UNLESS HE FURNISHES A RETURN OF HIS INCOME ON OR BEFORE THE D UE DATE SPECIFIED UNDER S/S.(1) OF SECTION 139 OF THE INCOME TAX ACT. THE SPECIAL BENC H OF THE TRIBUNAL IN THE CASE OF M/S. SAFFIRE GARMENTS VS. ITO (SUPRA), HAS CONSIDERED AN IDENTICAL ISSUE ABOUT THE FURNISHING OF RETURN OF INCOME ON OR BEFORE THE DUE DATE SPECI FIED UNDER SECTION 139(1) AS MANDATORY OR MERELY DIRECTORY FOR THE PURPOSE OF DE DUCTION UNDER SECTION 10A. A SIMILAR CONDITION HAS BEEN PROVIDED IN THE PROVISO TO SECTION 10A(1A) THAT NO DEDUCTION UNDER SECTION 10A SHALL BE ALLOWED TO AN ASSESSEE W HO DOES NOT FURNISH A RETURN OF INCOME WITHIN TIME LIMIT PRESCRIBED UNDER SECTION 1 39(1). THE SPECIAL BENCH HAS HELD IN PARA 11 TO 13 AS UNDER :- 11. THE 1ST QUESTION RAISED BEFORE US IS THIS AS T O WHETHER THIS PROVISO TO SECTION 10A(1A) OF THE INCOME TAX ACT, 1961, IS MAN DATORY OR MERELY DIRECTORY. IN ORDER TO DECIDE THIS ISSUE, WE FEEL T HAT WE HAVE TO CONSIDER 6 ITA NO.4727MUM/12 THE WHOLE SCHEME OF THE ACT. THE ASSESSEE IS REQUIR ED TO FILE THE RETURN OF INCOME WITHIN THE PRESCRIBED TIME AS PER THE PROVIS IONS OF SECTION 139(1). THIS PROVISION OF SECTION 139(1) IS APPLICABLE TO A LL COMPANIES AND FIRMS IRRESPECTIVE OF THE FACT AS TO WHETHER THEY ARE EAR NING TAXABLE INCOME OR NOT FOR THE CURRENT YEAR I.E. FROM 01.04.2006. IN R ESPECT OF OTHER PERSONS SUCH AS INDIVIDUAL, HUF, AOP OR BOI AND ARTIFICIAL JUDICIAL PERSON, THE REQUIREMENT IS THIS THAT IF SUCH A PERSON IS HAVING TAXABLE INCOME BEFORE GIVING EFFECT TO THE PROVISIONS OF SECTION 10A, THE N ALSO, HE IS REQUIRED TO FILE RETURN OF INCOME BEFORE THE DUE DATE EVEN IF T HIS PERSON IS NOT HAVING TAXABLE INCOME AFTER GIVING EFFECT TO THE PROVISION S OF SECTION 10A. WE FIND THAT THE PROVISIONS OF THE PROVISO TO SECTION 10A(1A) IS NOTHING BUT A CONSEQUENCE OF FAILURE OF THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE INCOME TA X ACT, 1961. FOR SUCH A FAILURE OF THE ASSESSEE TO FILE HIS RETURN OF INC OME WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE INCOME TAX ACT, 1961, THIS IS NOT THE ONLY CONSEQUENCE. ONE CONSEQUENCE OF SUCH FAILURE IS PRE SCRIBED IN SECTION 234A OF THE INCOME TAX ACT, 1961 ALSO AS PER WHICH, THE ASSESSEE IS LIABLE TO PAY INTEREST ON THE TAX PAYABLE BY HIM AFTER RED UCING ADVANCE TAX AND TDS/TCS IF ANY PAID BY HIM APART FROM SOME OTHER RE DUCTIONS. SUCH INTEREST IS PAYABLE FROM THE DATE IMMEDIATELY FOLLO WING THE DUE DATE FOR FILING RETURN OF INCOME AND IS PAYABLE UP TO THE DA TE ON WHICH SUCH RETURN OF INCOME WAS FURNISHED BY THE ASSESSEE AND IF THE ASSESSEE HAS NOT FURNISHED ANY RETURN OF INCOME THEN THE INTEREST IS PAYABLE TILL THE DATE OF COMPLETION OF THE ASSESSMENT U/S 144. IN OUR CONSID ERED OPINION, THIS IS ALSO ONE OF THE CONSEQUENCES OF NOT FILING RETURN O F INCOME BY THE ASSESSEE WITHIN THE DUE DATE. ONE MAY RAISE THIS AR GUMENT THAT INTEREST U/S 234A IS PAYABLE ONLY IF THE ASSESSEE HAS NOT PA ID HIS ADVANCE TAX AND, THEREFORE, THIS IS INTEREST FOR THE FAILURE OF THE ASSESSEE TO PAY ADVANCE TAX AS PER THE REQUIREMENT OF THE ACT AND NOT FOR THE D ELAY IN FILING RETURN OF INCOME. BUT IN OUR CONSIDERED OPINION, THIS IS NOT SO. FOR THE FAILURE OF THE ASSESSEE TO PAY ADVANCE TAX AS PER THE REQUIREMENT O THE ACT, INTEREST IS CHARGEABLE U/S 234B OF THE INCOME TAX ACT, 1961 IF SUCH ADVANCE TAX PAID BY THE ASSESSEE IS LESS THAN 90% OF THE ASSESSED TA X. SUCH INTEREST U/S 234B IS PAYABLE FROM THE FIRST DAY OF APRIL OF THE RELEVANT ASSESSMENT YEAR TILL THE DATE OF DETERMINATION OF THE TOTAL INCOME EITHER U/S 143(1) OR U/S 143(3) OF THE ACT. THE INTEREST U/S 234A IS PAYABLE FROM A DATE AFTER THE DUE DATE FOR FILING THE RETURN OF INCOME AND IS PAY ABLE UP TO THE DATE ON WHICH THE RETURN OF INCOME IS FURNISHED BY THE ASSE SSEE AND IF NO RETURN IS FURNISHED BY THE ASSESSEE AT ALL THEN ONLY, THE INT EREST IS PAYABLE TILL THE DATE OF COMPLETION OF THE ASSESSMENT U/S 144 OF THE ACT. UNDER THIS FACTUAL AND LEGAL POSITION, WE HAVE NO HESITATION I N HOLDING THAT THE INTEREST PAYABLE BY THE ASSESSEE U/S 234A IS FOR HI S FAILURE TO FILE THE RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE INCOME TAX ACT, 1961. THIS IS BY NOW A SETTLED POSITION OF LAW THAT CHARGING OF 7 ITA NO.4727MUM/12 INTEREST UNDER VARIOUS SECTIONS INCLUDING U/S 234A OF THE INCOME TAX ACT, 1961, IS MANDATORY. WHEN ONE OF THE CONSEQUENCES FO R NOT FILING RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE INCOME TAX ACT, 1961 IS MANDATORY THEN, OTHER CONSEQUENCE OF THE SA ME FAILURE OF THE ASSESSEE CANNOT BE DIRECTORY AND THE SAME IS ALSO M ANDATORY. IN OUR CONSIDERED OPINION AND IN VIEW OF OUR ABOVE DISCUSS ION, THE PROVISIONS OF THE PROVISO TO SECTION 10A(1A) IS MANDATORY AND NOT DIRECTORY AND, THEREFORE, QUESTION (A) REFERRED TO US IS ANSWERED IN NEGATIVE AND IT IS HELD THAT THIS PROVISO TO SECTION 10A(1A) OF THE IN COME TAX ACT, 1961 IS MANDATORY. 12. WE NOW EXAMINE AND DISCUSS OTHER CONSEQUENCES ALSO FOR THE FAILURE OF THE ASSESSEE TO FILE THE RETURN OF INCOME WITHIN THE DUE DATE AS REQUIRED U/S 139(1) OF THE INCOME TAX ACT, 1961. ON E OF SUCH CONSEQUENCE IS THE PROVISIONS OF SECTION 276CC AS P ER WHICH IF THE ASSESSEE FAILS TO FILE THE RETURN OF INCOME WITHIN THE DUE DATE PRESCRIBED UNDER SUB-SECTION (1) OF SECTION 139 OF THE ACT THE N HE SHALL BE PUNISHABLE FOR RIGOROUS IMPRISONMENT ALONG WITH FIN E AND THE QUANTUM OF SUCH IMPRISONMENT AND FINE IS DEPENDENT ON THE AMOU NT OF TAX WHICH WOULD HAVE BEEN EVADED IF THE FAILURE HAD NOT BEEN DETECTED. THIS ISSUE WAS EXAMINED BY HONBLE APEX COURT IN THE CASE OF P RAKASH NATH KHANNA (SUPRA) AS CITED BY THE LEARNED DR AND IT WAS HELD BY THE HONBLE APEX COURT IN THAT CASE THAT EVEN IF THE RETURN OF INCOM E IS FILED IN TERMS OF SUB-SECTION (4) OF SECTION 139 AND IT DOES NOT DILU TE INFRACTION IN NOT FURNISHING RETURN IN DUE TIME AS PRESCRIBED U/S 139 (1) OF THE ACT. THIS JUDGEMENT ALSO SUPPORTS THE VIEW TAKEN BY US WHILE ANSWERING QUESTION NO.1 AS PER ABOVE PARAS. WHEN EVEN FOR THE PURPOSE OF PROSECUTION ALSO, IT WAS HELD BY THE HONBLE APEX COURT THAT EVEN IF THE RETURN OF INCOME FURNISHED BY THE ASSESSEE WITHIN THE TIME ALLOWED U /S 139(4), IT DOES NOT DILUTE INFRACTION IN NOT FURNISHING THE RETURN IN D UE TIME AS PRESCRIBED UNDER SUB-SECTION(1) OF SECTION 139, THEN IT CANNOT BE ACCEPTED THAT SUCH FURNISHING OF RETURN OF INCOME WITHIN TIME ALLOWED U/S 139(4) WILL DILUTE THE PROVISIONS CONTAINED IN THE PROVISO TO SECTION 10A(1A) OF THE INCOME TAX ACT, 1961. 13. REGARDING VARIOUS SUBMISSIONS OF THE LD. A.R. A ND VARIOUS JUDGEMENTS ON WHICH RELIANCE HAS BEEN PLACED BY THE LD. A.R., WE WOULD LIKE TO OBSERVE THAT THESE SUBMISSIONS DO NOT HAVE MERIT IN VIEW OF OUR ABOVE DISCUSSION. THE FIRST SUBMISSION IS THIS THAT THE P ROVISION OF SECTION 139(4) ARE CONSIDERED AS PROVISO TO SECTION 139(1) AND IF THE ASSESSEE HAS FILED RETURN OF INCOME U/S 139(4), THE SAME SHOULD BE CON SIDERED AS RETURN FILED U/S 139(1) OF THE INCOME TAX ACT, 1961. ON TH IS ASPECT, WE HAVE ALREADY SEEN THE JUDGEMENT OF HONBLE APEX COURT CI TED BY THE LD. D.R. HAVING BEEN RENDERED IN THE CASE OF PRAKASH NATH KH ANNA (SUPRA), WHERE IT WAS HELD BY HONBLE APEX COURT THAT THE FILING O F RETURN OF INCOME WITHIN THE TIME ALLOWED U/S 139(4) OF THE INCOME TAX ACT, 1961 CANNOT DILUTE THE 8 ITA NO.4727MUM/12 INFRACTION IN NOT FURNISHING RETURN IN DUE TIME AS PRESCRIBED U/S 139(1) OF THE INCOME TAX ACT, 1961. IN VIEW OF THIS JUDGEMENT OF HONBLE APEX COURT IN THIS REGARD, THE JUDGMENTS CITED BY THE LD . A.R. I.E. CIT VS JAGARITI AGRAWAL (SUPRA) AND TRUSTEES OF TULSIDAS G OPALJI CHARITABLE & CHALESHWAR TEMPLE TRUST (SUPRA) ARE OF NO RELEVANCE BECAUSE THESE JUDGEMENTS ARE OF TWO DIFFERENT HIGH COURTS BUT THI S ASPECT OF THE MATTER IS COVERED AGAINST THE ASSESSEE BY THE JUDGEMENT OF HONBLE APEX COURT CITED BY THE LD. D.R. 3.2 IN VIEW OF THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL IN THE CASE OF M/S. SAFFIRE GARMENTS (SUPRA), WE HOLD THAT THE PROVISIO NS UNDER SECTION 80AC REQUIRING THE ASSESSEE TO FURNISH THE RETURN OF INCOME BEFORE DUE DATE SPECIFIED UNDER SECTION 139(1) IS MANDATORY AND NOT DIRECTORY. 3.3 NOW THE QUESTION ARISES WHETHER THE E-RETURN FI LED BY THE ASSESSEE ON 30/09/2008 AND PHYSICAL FORM ITR-V VERIFIED AND SUB MITTED ON 16/10/2008 WOULD CONSTITUTE A VALID RETURN FILED BY THE ASSESSEE ON 30/09/2008 WHICH IS THE DUE DATE OF FURNISHING THE RETURN OF INCOME AS PER SECTION 139( 1). THE LD. COUNSEL FOR THE ASSESSEE HAS GIVEN MUCH STRESS ON THE POINT THAT THE FILING OF E-RETURN WITHIN THE DUE DATE OF FILING THE RETURN OF INCOME ITSELF IS A COMPLIANCE OF SECTION 80AC AND SUBSEQUENT TECHNICAL DEFAULT OF DELAY OF FILING ACKNOWLEDGMENT OF RETURN WILL NOT AFFECT THE CLAIM OF DEDUCTION UNDER SECTION 80IB. WE DO NOT AGREE WITH THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE AS THE PROVISIONS OF SECTION 139(1 ) STIPULATES FILING OF RETURN IN PRESCRIBED FORM AND VERIFIED IN PRESCRIBED MANNER. WE QUOTE SECTION 139(1) AS UNDER :- 139. 54 [(1) EVERY PERSON 55 , (A) BEING A COMPANY 56 [OR A FIRM]; OR (B) BEING A PERSON OTHER THAN A COMPANY 56 [OR A FIRM], IF HIS TOTAL INCOME OR THE TOTAL INCOME OF ANY OTHER PERSON IN RESPECT OF WHICH HE I S ASSESSABLE UNDER THIS ACT DURING THE PREVIOUS YEAR EXCEEDED THE MAXIMUM AMOUNT WHICH IS NOT CHARGEABLE TO INCOME- TAX, SHALL, ON OR BEFORE THE DUE DATE, FURNISH A RETURN OF HIS INCOME OR THE INCOME OF SUCH OTHER PERSON DURING THE PREVIOUS YEAR, IN THE PRESC RIBED 57 FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PART ICULARS AS MAY BE PRESCRIBED. 9 ITA NO.4727MUM/12 3.3.1 THEREFORE, THE RETURN OF INCOME TO BE FILED I N PRESCRIBED FORM AS PER RULES AND IN THE CASE OF THE ASSESSEE AS PER THE SCHEME OF ELECT RONIC FURNISHING OF RETURN OF INCOME SCHEME 2007. THE ASSESSEE CHOSE TO FILE THE ELECTRO NIC RETURN UNDER THE SAID SCHEME OF 2007. THEREFORE, THE RETURN OF INCOME WILL BE TREAT ED TO BE FILED IN COMPLIANCE OF SECTION 139(1) ONLY WHEN IT IS FILED AS PER THE FOR M SPECIFIED UNDER THE E-RETURN SCHEME 2007 AND VERIFIED IN THE MANNER PRESCRIBED THEREUND ER. AS PER THE SCHEME THE E- RETURN FILED BY THE ASSESSEE ITSELF IS NOT CONSIDERED AS RETURN OF INCOME FILED BUT THE ASSESSEE IS REQUIRED TO SUBMIT THE DULY VERIFIED FO RM ITR-V TO THE AO NOT LATER THAN 15 DAYS FROM THE ISSUE OF PROVISIONAL RECEIPT FOR THE ELECTRONIC DATA RECEIVED BY E-RETURN ADMINISTRATOR AS REQUIRED BY SUB-PARA 2 AND 3 OF PA RA 3 OF THE SCHEME AS UNDER :- (2) THE ELIGIBLE PERSON SHALL SUBMIT THE DULY VE RIFIED FORM ITR-V TO THE ASSESSING OFFICER NOT LATER THAN FIFTEEN DAYS FROM THE ISSUE OF THE PROVISIONAL RECEIPT FOR THE ELECTRONIC DATA RECEIVE D BY THE E-RETURN ADMINISTRATOR AND THE DATE ON WHICH SUCH RECEIPT IS ISSUED SHALL BE DEEMED TO BE THE DATE OF FILING THE RETURN. (3) WHERE FORM ITR-V IS NOT SUBMITTED WITHIN THE TIME PRESCRIBED IN SUB-PARAGRAPH (2), THE DATE OF SUBMITTING FORM ITR- V SHALL BE DEEMED TO BE THE DATE OF FILING THE RETURN. 3.4 THUS, IT IS CLEAR THAT UNDER THE SCHEME THE RET URN OF INCOME IS CONSIDERED TO BE FILED ONLY WHEN THE ASSESSEE SUBMITS THE DULY VERIF IED FORM ITR-V TO THE AO. UNDER THIS SCHEME A FURTHER TIME IS GIVEN TO THE ASSESSEE NOT EXCEEDING 15 DAYS TO SUBMIT DULY VERIFIED FORM-ITR-V, IF THE ASSESSEE FILES ITS E-RETURN WITHIN THE DUE DATE OF FILING THE RETURN OF INCOME AS PER SECTION 139(1). THUS TH E REQUIREMENT OF FILING OF PHYSICAL RETURN IS NEITHER DILUTED NOT TAKEN AWAY UNDER THE FILING OF E-RETURN SCHEME 2007. HOWEVER, IF THE ASSESSEE TAKES THE FIRST STEP OF FI LING THE E-RETURN WITHIN THE TIME PRESCRIBED FOR DUE DATE OF FILING THE RETURN UNDER SECTION 139(1) THEN THE PHYSICAL RETURN IN THE FORM ITR-V DULY VERIFIED CAN BE FILED WITHIN 15 DAYS THEREAFTER AND THE DATE OF FILING OF RETURN WILL BE DEEMED AS THE DATE ON WHICH THE E-RETURN WAS FILED AND PROVISIONAL RECEIPT IS ISSUED. SUB-PARA-3 OF PARA-3 OF THIS SCHEME DEALS WITH THE SITUATION WHEN THE DULY VERIFIED FORM ITR-V IS NOT SUBMITTED WITHIN 15 DAYS, THEN THE DATE OF SUBMITTING FORM ITR-V SHALL BE DEEMED TO BE THE DATE OF FILING THE RETURN. IN THE CASE OF THE ASSESSEE THE FORM ITR-V WAS SUBMITT ED BY THE ASSESSEE AFTER 15 DAYS 10 ITA NO.4727MUM/12 FROM THE DATE OF FILING THE E-RETURN. THEREFORE, IT FALLS UNDER SUB PARA-3 OF PARA- 3 OF THIS SCHEME AND THE DATE OF FILING OF THE RETURN WI LL BE DEEMED WHEN FORM ITR-V WAS SUBMITTED BY THE ASSESSEE. SINCE THE ASSESSEE SUBMI TTED FORM ITR-V ON 16/10/2008 WHICH SHALL BE DEEMED TO BE THE DATE OF FILING THE RETURN CONSEQUENTLY THE RETURN FILED BY THE ASSESSEE CANNOT BE REGARDED AS FILED WITHIN THE DUE DATE SPECIFIED UNDER S/S.(1) OF SECTION 139 OF THE INCOME TAX ACT. IT IS PERTIN ENT TO NOTE THAT THIS ASPECT HAS BEEN REITERATED IN SUB-PARA-5 OF PARA-9 OF THE SCHEME A S UNDER :- 5. THE DATE OF ISSUE OF THE PROVISIONAL RECEIPT SH ALL BE DEEMED TO BE THE DATE OF FILING OF RETURN OF INCOME IF THE FORM ITR-V HAS BEEN FILED WITH THE AO WITHIN FIFTEEN DAYS FROM THE DATE OF IS SUE OF THE PROVISIONAL RECEIPT. IF THE FORM ITR-V IS FILED AFTER FIFTEEN D AYS FROM THE DATE OF UPHOLDING THE DATE THEN THE DATE OF FILING THE FORM ITR-V WILL BE THE DATE OF FILING THE RETURN OF INCOME. 3.4.1 IT IS PERTINENT TO NOTE THAT UNDER RULE-12(3 ) OF I.R. RULES THE RETURN OF INCOME MAY BE FURNISHED IN ANY OF THE MANNERS PRESCRIBED T HEREUNDER. THE ASSESSEE CHOOSE TO FILE THE RETURN ELECTRONICALLY AND THEREAFTER SUBMI TTING THE VERIFICATION OF THE RETURN IN FORM ITR-V. IT IS CLEAR FROM THE RULE-12 OF I.T. RU LES AS WELL AS ELECTRONIC FURNISHING OF RETURN OF INCOME SCHEME 2007, THAT THE PROVISION ST IPULATED THEREUNDER ARE NOT DEROGATORY TO THE MAIN PROVISION OF THE ACT UNDER S ECTION 139(1), RATHER THE RULES AND SCHEME IS IN FURTHERANCE OF THE STATUTES AND PROVIS IONS AND PROVIDE THE PROCEDURE TO MAKE THE MAIN PROVISION WORKABLE. THEREFORE, THE RU LE 12 OF THE I.T. RULE AND SCHEME UNDER WHICH THE ELECTRONIC RETURN FILED BY THE ASSE SSEE DO NOT IN ANY MANNER OVERRIDE THE MAIN PROVISIONS UNDER SECTION 139(1). THERE IS NO QUARREL ON THE POINT THAT THE RULES CANNOT OVERRIDE OR WHITTLE DOWN THE PROVISION S OF THE ACT. HOWEVER, IN THE CASE IN HAND, THE QUESTION OF OVERRIDING OF SECTION 139(1) BY THE RULE-12 OF THE I.T. RULES OR E- RETURN SCHEME, 2007 DOES NOT ARISE AS DISCUSSED ABO VE. 3.5 THERE IS NO DISPUTE AS REGARDS THE DATE OF FIL ING E-RETURN AND DATE OF FILING THE FORM ITR-V. THEREFORE, THE RETURN OF INCOME OF THE ASSESSEE SHALL BE DEEMED TO BE FILED ON 16/10/2008 WHEN THE FORM ITR-V DULY VERIFI ED IS SUBMITTED BY THE ASSESSEE . WE HAVE ALREADY TAKEN A VIEW THAT THE CONDITIONS PR ESCRIBED UNDER SECTION 80AC ARE 11 ITA NO.4727MUM/12 MANDATORY FOR AVAILING THE DEDUCTION UNDER SECTION 80IB. WHEN THE ASSESSEE WAS FOUND TO HAVE NOT FURNISHED HIS RETURN OF INCOME BEFORE D UE DATE SPECIFIED UNDER SECTION 139(1) THEN THE DEDUCTION UNDER SECTION 80-IB SHALL NOT BE ALLOWED TO THE ASSESSEE. THE EMPHASIS ON THE DELAY BY ONE DAY , AND AN APPEAL THEREBY TO ONES SENSE OF EQUITY, IS MISPLACED. COULD OUR DECISION, FOR EXAMPLE, BE IN ANY DIFFEREN T, IF THE DELAY WAS INSTEAD FOR, SAY, TWO DAYS OR FIVE DAYS OR FIFTEEN DAYS ? THE ISSUE IS WHETHER OR NOT THE RETURN OF INCOME STANDS FILED BY THE SPECIFIED DATE ; THE ANSWER TO WHICH WOULD BE EITHER YES OR NO, SO THAT THE LENGTH OF THE DELAY IS B Y ITSELF OF NO CONSEQUENCE. NO WONDER, NO REASON/S EXPLAINING THE SAID DELAY WAS ADVANCED AT ANY STAGE. FURTHER, THAT THE TIME LIMIT PRESCRIBED IN SECTIONS 10A AND 10B, OR THE AN ALOGOUS PROVISION OF SECTION 80AC, FOR THE FILING OF RETURN OF INCOME FOR THE RELEVANT YEA R, I.E., IF THE BENEFIT UNDER THE RELEVANT PROVISIONS IS TO BE ALLOWED, IS MANDATORY AND NOT D IRECTORY, STANDS ABUNDANTLY CLARIFIED BY THE LARGER BENCH OF THE TRIBUNAL IN SAFFIRE GARMENTS VS. ITO [2013] 140 ITD 6 (RAJKOT) (SB), WITH REFERENCE TO A HOST OF DECISION S, INCLUDING BY THE APEX COURT IN PRAKASH NATH KHANNA VS. CIT [2004] 266 ITR 1 (SC). THERE IS NO EQUITY ABOUT TAX , AND THE LANGUAGE OF THE STATUTE, WHERE CLEAR AND UNAMBI GUOUS, AS IN THE INSTANT CASE, IS TO BE READ AS IT IS, I.E., BY GIVING A FAIR LOOK AND M EANING TO THE LANGUAGE. IF THE LEGISLATIVE INTENT IS NOT TO BE GATHERED FROM THE PLAIN AND CLE AR WORDS EMPLOYED BY THE STATUTE, WHERE-FROM, ONE MAY ASK, IT IS TO BE ? THE CASE LAW IN THE MATTER IS LEGION, THOUGH WE MAY FOR READY REFERENCE CITE THE DECISION IN THE CA SE OF BRITANNIA INDUSTRIES LTD. VS. CIT [2005] 278 ITR 546 (SC) AND ANOTHER RECENT DECISION BY THE APEX COURT IN CIT VS. CALCUTTA KNITWEARS [2014] 362 ITR 673 (SC). 3.5.1 THE SCHEME FOR FILING THE E-RETURN (I.E., ELE CTRONIC FURNISHING OF RETURN OF INCOME SCHEME, 2007) IS NOT MANDATORY FOR INDIVIDUALS FOR THE CURRENT YEAR, THOUGH MAY BE AVAILED OF OPTIONALLY BY THEM. THE E-RETURN UPLOADE D BY THE ASSESSEE-INDIVIDUAL DID NOT BEAR HIS DIGITAL SIGNATURE. THIS IS AGAIN VITAL. IT IS ONLY THE VERIFICATION OF A RETURN, WHEREBY THE ASSESSEE MAKES A DECLARATION UNDER A SE LF ADMINISTERED OATH, UNDER THIS SIGNATURE, THAT TRANSFORMS IT INTO A LEGAL DOCUMENT , TO WHICH THE LAW ACCORDS SANCTITY AND STATUS, CONVERTING THE INFORMATION BEING FURNIS HED INTO A RETURN (OF INCOME), I.E., 12 ITA NO.4727MUM/12 WHICH COULD BE RECOGNIZED AS SUCH UNDER THE ACT. TH E SAID SCHEME, BY VIRTUE OF THE ENABLING PROVISION OF SEC. 139(1B), BECOMES PART OF OR AN EXTENSION OF THE LAW. THE REQUIREMENT OF LAW THUS IS OF FILING A PHYSICAL RET URN, WHICH IS NOT DISPENSED WITH, BUT ONLY RELAXED UNDER THE CONDITION OF AN ASSESSEE CHO OSING TO FILE AN E-RETURN, PERHAPS WITH A VIEW TO ENCOURAGE THE SAME. THE ASSESSEE IN SUCH A CASE CAN, INSTEAD OF FILING THE PHYSICAL RETURN ALONG WITH OR BY THE DUE DATE S PECIFIED U/S.139(1), DO SO WITHIN A PERIOD OF 15 DAYS, AND WHERE SO DONE, THE SAME WOUL D BE DEEMED TO HAVE BEEN FILED ON THE DATE OF FILING THE E-RETURN. WHERE NOT SO, T HE DATE OF FILING THE RETURN WOULD BE THE ACTUAL DATE OF FILING THE PHYSICAL RETURN . WHERE THEN IS THE CONTROVERSY ? A PHYSICAL RETURN FILED WITHIN 15 DAYS OF AN E-FILING WOULD, B Y LEGAL FICTION, BE DEEMED TO HAVE BEEN FILED ON THE DATE OF THE FORMER. THE SAME IS O NLY PER THE SCHEME ITSELF. LIKEWISE, IT BEING CONSIDERED AS FILED ON THE DATE OF FURNISHING THE PHYSICAL RETURN IS AGAIN PER THE SAID SCHEME. THAT IS, THE RELAXATION EXTENDS ONLY T O THE DEEMING OF THE DATE OF THE FILING THE RETURN AND NOT TO ITS FORM AND, FURTHER, DOES NOT EXTEND BEYOND 15 DAYS. IT WOULD THUS BE ONLY CORRECT TO SAY THAT THE BENEFIT OF THE SCHEME EXTENDS TO THE PHYSICAL FILING OF THE RETURN WITHIN AN EXTENDED PERIOD OF 1 5 DAYS. THERE IS, ACCORDINGLY, NO QUESTION OF ANY FLEXIBILITY OR EXTENDING THE SCOPE OR AMBIT OF THE DEEMING; IT ITSELF CONTEMPLATING THE ASSESSEE BEING NOT ABLE TO FILE T HE RETURN WITHIN THE EXTENDED PERIOD, THE CONSEQUENCES FOR WHICH ARE SPECIFIED. THE ENLAR GEMENT IN SCOPE, AS BEING SOUGHT TO BE CANVASSED, IS THUS UNCALLED FOR AND INCONSIST ENT WITH THE TERMS OF THE LAW, THE RULES AND THE SCHEME, WHICH ARE OBSERVED TO BE IN C ONSISTENCE AND HARMONY. THE ABSENCE OF A DIGITAL SIGNATURE, SO THAT THE E-RETUR N IS NOT VERIFIED, STANDS ALREADY EMPHASIZED. 3.5.2 THE REQUIREMENT OF LAW, I.E., PER SECTION 80 AC R/W SS. 139(1) AND 139 (1B) ARE, THEREFORE, NOT SATISFIED IN THE INSTANT CASE. 3.6 THE DECISION RELIED UPON BY THE LD. AR WILL NOT HELP THE CASE OF THE ASSESSEE IN VIEW OF THE DECISION OF THE SPECIAL BENCH OF THE TR IBUNAL N THE CASE OF SAFFIRE GARMENTS (SUPRA) , AND FURTHER IN VIEW OF THE JUDGMENT OF HO N'BLE SUPREME COURT IN THE CASE OF 13 ITA NO.4727MUM/12 PRAKASH NATH KHANNA AND ANOTHER VS. CIT AND ANR. (2 66 ITR 1) WHICH HAS BEEN CONSIDERED AND RELIED UPON BY THE SPECIAL BENCH. IN VIEW OF THE ABOVE DISCUSSION AS WELL AS IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDERS OF AUTHORITIES BELOW. 4. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/2 015 ( %&' ! ) *' + 30/01/2015 ,# SD/- SD/- ( SANJAY ARORA ) ( VIJAY PAL RAO ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED 30/01/2015 . ' . ./ JV, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. , , !' / DR, ITAT, MUMBAI 6. #$ %' / GUARD FILE. & & & & / BY ORDER, & //TRUE COPY// ' ' ' ' / &( &( &( &( ) ) ) ) (DY./ASSTT. REGISTRAR) , !' / ITAT, MUMBAI.