DCIT, CIR-4, KOLKATA, Kolkata V. M/s Mackintosh Burn Ltd, Kolkata

ITA 790/KOL/2014

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9166 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Department
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2014
• Court: TRIBUNAL
• Department Lawyers: SAURABH KUMAR
• Keywords: Revised return
• Section: 143(3); 80IB; 139(5); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI M. BALAGANESH, AM & SHRI S. S. VISWAN ETHRA RAVI, JM] I.T.A NO.790/KOL/2014 ASSESSMENT YEAR: 2006-07 DEPUTY COMMISSIONER OF INCOME-TAX, VS. M/S. MACKI NTOSH BURN LTD. CIRCLE-4, KOLKATA. (PAN: AACCM2160J) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 06.03.2017 DATE OF PRONOUNCEMENT: 15.03.2017 FOR THE APPELLANT: SHRI SAURABH KUMAR, ADDL. CIT FOR THE RESPONDENT: SHRI ANUP SINHA, ADVOCATE ORDER PER SHRI M. BALAGANESH, AM: THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-IV, KOLKATA VIDE APPEAL NO. 213/CIT(A)-IV/2008-09 DATED 28.01.2014. ASSESSM ENT WAS FRAMED BY ACIT, CIRCLE- 4, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DATED 26 .12.2008. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER, THE LD. CIT(A) WAS JUSTIFIED IN GRANTING RELIEF TO THE ASSESSEE IN RES PECT OF DEDUCTION U/S. 80IA OF THE ACT THOUGH THE SAME WAS CLAIMED ONLY IN THE REVISED RET URN BY THE ASSESSEE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS ENGAGED IN THE BUSINESS OF CIVIL AND STRUCTURAL CONSTRUCTION WORK MAINLY ON BEHALF O F THE GOVT. OF WEST BENGAL. THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 29. 11.2006 DECLARING TAXABLE INCOME OF RS.15,27,86,009/-. THE DUE DATE OF FILING THE RETU RN OF INCOME U/S. 139(1) OF THE ACT WAS 30.11.2006. THE ASSESSEE FILED A REVISED RETURN ON 28.03.2008 DECLARING TAXABLE INCOME OF RS.5,83,98,641/- AFTER CLAIMING DEDUCTION U/S. 80IA OF THE ACT AMOUNTING TO RS.9,43,87,368/-. THE SAID DEDUCTION U/S. 80IA OF THE ACT WAS ADMITTEDLY NOT CLAIMED BY THE ASSESSEE IN THE ORIGINAL RETURN FILED ON 29.11. 2006. THE ASSESSEE STATED BEFORE THE AO THAT THE REASON FOR FILING REVISED RETURN WAS BASED ON THE ADVICE OF THE TAX CONSULTANT TO CLAIM DEDUCTION U/S. 80IA OF THE ACT WHICH THE ASSE SSEE WAS LEGITIMATELY ENTITLED TO. THE ASSESSEE IS A CIVIL CONSTRUCTION COMPANY, ENGAGED I N THE CONSTRUCTION AND DEVELOPMENT OF 2 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 INFRASTRUCTURE FACILITIES LIKE ROADS, BRIDGES, WATE R SUPPLY SYSTEM, ERECTION SYSTEM ETC. SUCH PROJECTS ARE OBTAINED DIRECTLY FROM THE STATE GOVT. OR OTHER STATUTORY BODIES AFTER SUCCESSFUL BIDDING THROUGH TENDERS. THE ASSESSEE E NTERED INTO AN AGREEMENT WITH THE STATE GOVT. AND OTHER AUTHORITIES AND UNDERTAKES TO COMPL ETE THE PROJECTS IN TIME WITHIN THE TENDERED AMOUNT. THE ASSESSEE STATED THAT THOUGH I T IS ENTITLED TO THE BENEFITS OF DEDUCTION U/S. 80IA OF THE ACT, IT DID NOT CLAIM SUCH DEDUCTI ON IN ANY OF THE EARLIER YEARS AS IT WAS NOT ADVISED PROPERLY. BASED ON THE ADVICE OF THE T AX CONSULTANT THE ASSESSEE OBTAINED THE CHARTERED ACCOUNTANTS CERTIFICATE IN FORM NO. 10CC B FOR CLAIMING DEDUCTION U/S. 80IA OF THE ACT ON 24.03.2008 AND FILED THE REVISED RETU RN ON 28.03.2008 CLAIMING DEDUCTION U/S. 80IA OF THE ACT. THE AO APPLIED THE PROVISION S OF SECTION 80IA(7) OF THE ACT AND DENIED THE BENEFIT OF DEDUCTION U/S. 80IA OF THE AC T ON THE GROUND THAT THE AUDIT REPORT IN FORM NO. 10CCB SHOULD HAVE BEEN OBTAINED AND FILED ALONG WITH THE RETURN OF INCOME. THE LD. CIT(A) BY INTERPRETING THE PROVISIONS OF SE CTION 80A AND 80AC OF THE ACT ALLOWED THE CLAIM OF DEDUCTION OF THE ASSESSEE BY H OLDING THAT IN ORDER TO CLAIM SUCH DEDUCTION; (A) THE RETURN OF INCOME HAS TO BE FURNI SHED WITHIN THE DUE DATE OF FURNISHING THE RETURN AS SPECIFIED IN SECTION 139(1) OF THE AC T; (B) THE ACCOUNTS OF THE UNDERTAKING HAVE TO BE AUDITED BY AN ACCOUNTANT AS DEFINED IN T HE ACT AND (C) THE CLAIM HAS TO BE MADE IN THE RETURN OF INCOME FOR THE RELEVANT ASSESSMENT YEAR. THE LD. CIT(A) HAD CATEGORICALLY HELD THAT THERE IS NO MENTION IN THE ACT THAT THE CLAIM OF DEDUCTION U/S. 80IA OF THE ACT HAD TO BE MADE IN THE ORIGINAL RETURN OF INCOME AND THE AUDIT REPORT HAD TO BE SIGNED BEFORE THE DATE OF ORIGINAL RETURN AND HENCE , THE DISALLOWANCE OF SECTION 80IA OF THE ACT BY THE AO IS NOT TENABLE. HE FURTHER HELD THAT THE ASSESSEE HAD FULFILLED ALL THE CONDITIONS STATED IN THE STATUTE IN ORDER TO AVAIL THE BENEFIT U/S. 80IA OF THE ACT. THE LD. CIT(A) FURTHER OBSERVED THAT SECTION 139(5) OF THE ACT PROVIDES THAT IF ANY PERSON HAVING FURNISHED ANY RETURN U/S. 139(1) OF THE ACT DISCOVE RS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIM E BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE C OMPLETION OF ASSESSMENT, WHICHEVER IS EARLIER. THE LD. CIT(A) ALSO RELIED ON THE DECISIO N OF HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT REPORTED IN (2006) 284 ITR 323 (SC) WHEREIN IT WAS HELD THAT ANY DEDUCTION/ALLOWANCE WHICH WAS NOT CLAIMED IN TH E ORIGINAL RETURN CAN ONLY BE CLAIMED BY WAY OF A REVISED RETURN TO BE FILED WITHIN THE T IME ALLOWED U/S. 139(5) OF THE ACT. THE LD. CIT(A) BY PLACING RELIANCE ON THE DECISION OF T HE HONBLE JURISDICTIONAL HIGH COURT IN 3 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 THE CASE OF CIT VS. UNIVERSAL TRADING CO. REPORTED IN (1978) 114 ITR 412 (CAL) HELD THAT IF NOTHING IS SPECIFICALLY STATED IN THE STATUTE T HEN ORIGINAL RETURN WOULD INCLUDE REVISED RETURN OF INCOME. IN THE INSTANT CASE, SINCE ONLY RETURN OF INCOME HAS BEEN STATED IN THE STATUTE AND AS SUCH THE RETURN OF INCOME AS MENTION ED IN SECTION 80IA OF THE ACT WOULD MEAN REVISED RETURN OF INCOME. THE LD. CIT(A) ALS O PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH OF DELHI ITAT IN THE CASE OF LAXMI RICE MILLS VS. ITO, REPORTED IN (1982) 2 ITD 39 WHEREIN THE TRIBUNAL HELD THAT IF A SSESSEE CAN OFFER VALID EXPLANATION FOR THE DELAY IN GETTING THE ACCOUNTS AUDITED THEN THE DEDUCTION U/S. 80J WHICH IS PARI MATERIA WITH SECTION 80IA OF THE ACT SHOULD BE ALLOWED. BA SED ON THE AFORESAID OBSERVATIONS, THE LD. CIT(A) GRANTED DEDUCTION U/S. 80IA OF THE ACT T O THE ASSESSEE. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GRO UNDS: I)THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN LAW, THE LD. CIT(A) HAS ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE WITHOUT CONSI DERING THE FACT THAT SECTION 80IA(7) MANDATES THAT DEDUCTION UNDER SUB-SECTION (1) FROM PROFITS AND GAINS DERIVED FROM AN UNDERTAKING SHALL NOT BE ADMISSIBLE UNLESS THE ACCO UNTS OF THE UNDERTAKING FOR THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT FOR WHICH THE DEDUC TION IS CLAIMED HAVE BEEN AUDITED BY AN ACCOUNTANT, AS DEFINED IN THE EXPLANATION BELOW SUB -SECTION (2)OF SECTION 288, AND THE ASSESSEE FURNISHES, ALONG WITH ITS RETURN OF INCOME , THE REPORT OF SUCH AUDIT IN THE PRESCRIBED FORM DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT. II) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ALSO IN LAW, THE LD. CIT(A) HAS ERRED IN IGNORING THE PROVISIONS OF SECTION 44AB WHICH CL EARLY STATES THAT EVERY PERSON SHALL HAVE ITS ACCOUNTS OF SUCH PREVIOUS YEAR, AUDITED BY AN A CCOUNTANT BEFORE THE SPECIFIED DATE AND FURNISH BY THAT DATE THE REPORT OF SUCH AUDIT IN TH E PRESCRIBED FORM DULY SIGNED AND VERIFIED BY SUCH ACCOUNTANT AND SETTING FORTH SUCH PARTICULA RS AS MAY BE PRESCRIBED. AND THAT SPECIFIED DATE HAS BEEN DEFINED IN SECTION 139(1) AS THE DUE DATE WHICH IS 30 TH DAY OF NOVEMBER OF THE ASSESSMENT YEAR. 4. THE LD. DR VEHEMENTLY RELIED ON THE ORDER OF THE AO. IN RESPONSE TO THIS, THE LD. AR REITERATED THE FACTS AND THE SUBMISSIONS MADE BE FORE THE LD. CIT(A) AND INFORMED THE LIST OF DATES AND SEQUENCE OF EVENTS WHICH WOULD BE RELEVANT FOR THE SAID APPEAL. HE ARGUED THAT ADMITTEDLY ACCOUNTS OF THE ASSESSEE HAV E BEEN DULY AUDITED BY THE ACCOUNTANT AS DEFINED IN SECTION 288 OF THE ACT AND ACCOUNTS O F THE ELIGIBLE UNDERTAKING HAVE BEEN KEPT SEPARATE AND DISTINCT BY THE ASSESSEE. HE ARG UED THAT THE PROVISIONS OF SECTION 80IA(7) OF THE ACT WOULD APPLY ONLY WHEN AUDIT REPO RT IN THE PRESCRIBED FORM IS NOT FILED ALONG WITH THE RETURN OF INCOME. IN THE INSTANT CA SE, IN THE ORIGINAL RETURN OF INCOME THE DEDUCTION U/S. 80IA PER SE WAS NOT CLAIMED BY THE A SSESSEE. HENCE, THERE WAS NO NEED FOR THE ASSESSEE TO OBTAIN AUDIT REPORT IN FORM 10CCB A ND FILE IT ALONG WITH THE ORIGINAL RETURN OF INCOME. HE STATED THAT LATER BASED ON THE ADVIC E OF THE TAX CONSULTANT THE AUDIT REPORT 4 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 WAS OBTAINED ON 24.03.2008 AND REVISED RETURN FILED ON 28.03.2008 WHEREIN DEDUCTION U/S. 80IA OF THE ACT WAS CLAIMED BY THE ASSESSEE. IN TH IS SCENARIO, THE PROVISION OF SECTION 80IA(7) OF THE ACT CANNOT BE MADE APPLICABLE TO THE ASSESSEE. NO DEDUCTION U/S. 80IA OF THE ACT IS APPLICABLE UNLESS A PERSON FURNISHES ITS RETURN OF INCOME ON OR BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME U/S. 139(1) OF THE ACT. IN THE INSTANT CASE, THE ASSESSEE ADMITTEDLY HAD FILED THE RETURN OF INCOME BEFORE TH E DUE DATE SPECIFIED U/S. 139(1) OF THE ACT. ADMITTEDLY, THE ACCOUNTS OF THE ELIGIBLE UNDE RTAKING HAD BEEN DULY AUDITED BY AN ACCOUNTANT MUCH BEFORE THE DUE DATE OF FILING RETUR N OF INCOME U/S. 139(1) OF THE ACT. IT IS ONLY THAT THE AUDIT CERTIFICATE IN FORM NO. 10CCB W AS OBTAINED AFTER THE FILING OF ORIGINAL RETURN OF INCOME AND THE SAME WAS FILED ALONG WITH THE REVISED RETURN OF INCOME WHICH IS FILED WITHIN THE DATE SPECIFIED U/S. 139(5) OF THE ACT. HENCE, HE ARGUED THAT THE AO OUGHT TO HAVE TAKEN COGNIZANCE OF THE VALID REVISED RETUR N THAT WAS VERY MUCH AVAILABLE BEFORE HIM WHILE FRAMING ASSESSMENT. IN THIS REGARD, HE P LACED RELIANCE ON THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF DHAMPUR SUGAR MILLS. LTD. VS. CIT (1973) 90 ITR 236 (ALL), WHEREIN THE QUESTION RAISED BEFOR E THE HONBLE ALLAHABAD HIGH COURT WAS WHETHER, ORIGINAL RETURN WOULD CONTINUE TO FORM THE BASIS FOR THE PURPOSE OF ASSESSMENT EVEN AFTER IT WAS SUBSTITUTED BY A REVIS ED RETURN. THE HONBLE HIGH COURT HELD THAT WHEN AN ASSESSMENT HAS TO BE MADE THE ASSESSEE IS GIVEN A RIGHT TO FILE A CORRECT AND COMPLETE RETURN IF HE DISCOVERS AN ERROR OR OMISSIO N IN THE RETURN FILED EARLIER. THE ASSESSMENT CAN BE COMPLETED ONLY ON THE BASIS OF TH E CORRECT AND COMPLETE RETURN. THE EARLIER RETURN, AFTER A REVISED RETURN HAS BEEN FIL ED, CANNOT FORM THE BASIS OF ASSESSMENT ALTHOUGH IT MAY BE USED TO INDICATE THE CONDUCT OF THE ASSESSEE. HENCE, FOR THE PURPOSE OF ASSESSMENT OF INCOME, THE EFFECTIVE RETURN MUST BE THE REVISED RETURN FILED BY THE ASSESSEE ULTIMATELY. THERE IS A DISTINCTION BETWEEN A REVISED RETURN AND A CORRECTION OF THE RETURN. IF THE ASSESSEE FILES SOME APPLICATION FOR CORRECTING A RE TURN ALREADY FILED OR MAKING AMENDS THEREIN, IT WOULD NOT MEAN THAT HE HAS FILED A REVI SED RETURN. IT WILL STILL RETAIN THE CHARACTER OF AN ORIGINAL RETURN, BUT ONCE A REVISED RETURN IS FILED, THE ORIGINAL RETURN MUST BE TAKEN TO HAVE BEEN WITHDRAWN AND TO HAVE BEEN SU BSTITUTED BY A FRESH RETURN FOR THE PURPOSE OF ASSESSMENT. A RETURN WHICH HAS BEEN S UBSTITUTED BY A REVISED RETURN IS, FOR ALL PRACTICAL PURPOSES, THE RETURN OF INCOME AS THE ASSESSMENT HAS TO BE COMPLETED ON THE BASIS OF THE REVISED RETURN. 5 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 5. HE ALSO PLACED RELIANCE ON THE DECISION OF THE C OORDINATE BENCH OF CHENNAI TRIBUNAL IN THE CASE OF ACIT VS. PRECOT MERIDIAN LT D. IN ITA NO. 1214/MDS/2012 DATED 29.04.2013 WHICH IS SQUARELY APPLICABLE TO THE FACT S OF THE INSTANT CASE, WHEREIN THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 80IA OF TH E ACT IN THE REVISED RETURN AND NOT IN ORIGINAL RETURN. THE AO DISALLOWED THE SAID CLAIM. THE HON'BLE ITAT HELD THAT, A PLAIN READING OF SECTION 80AC MAKES IT CLEAR THA T FROM THE ASSESSMENT YEAR 2006-07, DEDUCTION CLAIMED UNDER SECTION 80IA/80-IB/80-IC/80 -ID/80-IE SHALL NOT BE ALLOWED UNLESS THE ASSESSEE FURNISHES A RETURN ON OR BEFORE DUE DA TE SPECIFIED UNDER SUB-SECTION (1) OF SECTION 139. NOWHERE IN THE SECTION IT WAS PROVIDED THAT UNLESS THE ASSESSEE MAKES A CLAIM IN ITS RETURN FILED UNDER SECTION 139(1), THE SAID CLAIM IS ALLOWABLE. THE SECTION DOES NOT SPEAK OF A CLAIM TO BE MADE IN THE RETURN FILED UND ER SECTION 139(1). THE SECTION SPEAKS OF FILING A RETURN WITHIN THE TIME SPECIFIED UNDER SEC TION 139(1) AND NOTHING ELSE. HERE THE ASSESSEE FILED A RETURN UNDER SECTION 139(1) WITHIN DUE DATE SPECIFIED BUT NO CLAIM WAS MADE UNDER SECTION 80LA IN SUCH RETURN. HOWEVER, A REVIS ED RETURN WAS FILED UNDER SECTION 139(5) ON 30.3.2010 CLAIMING DEDUCTION UNDER SECTION 80LA AT RS. 37,27,928/-. THE SECTION SAYS UNLESS THE ASSESSEE FILES A RETURN UNDER SECTION 13 9(1) WITHIN THE DUE DATE, DEDUCTION UNDER SECTION 80IA/80-IB/80-IC/80-ID/80-IE SHALL NOT BE A LLOWED AND AT THE SAME TIME SECTION 139(5) PROVIDES FOR FILING A REVISED RETURN, WHEN T HE ASSESSEE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT MADE IN THE RETURN ALREADY FILED UN DER SUB-SECTION (1) OF SECTION 139 OR RETURN FILED UNDER SUB- SECTION (1) OF SECTION 142. THIS REVISED RETURN CAN BE FILED AT ANY TIME BEFORE EXPIRY OF ONE YEAR FROM THE END OF THE RELEV ANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF ASSESSMENT, WHICHEVER IS EARLIER. IN VIEW OF OUR ABOVE OBSERVATIONS, THE SUBMISSION O F THE DEPARTMENTAL REPRESENTATIVE THAT SINCE THE ASSESSEE HAD NOT MADE ANY CLAIM IN ITS OR IGINAL RETURN FILED UNDER SECTION 139(1), NO DEDUCTION IS ALLOWABLE UNDER SECTION 80LA OF THE ACT, IN VIEW OF THE PROVISIONS OF SECTION 80AC, HAS NO FORCE.' 6. SIMILAR VIEW WAS TAKEN BY THE COORDINATE BENCH O F MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. KAMDHENU BUILDERS & DEVELOPERS IN ITA NO. 7010/MUM/2010 DATED 27.01.2016. HE FURTHER PLACED RELIANCE ON THE COOR DINATE BENCH DECISION OF AHMEDABAD TRIBUNAL IN THE CASE OF PARMESHWAR COLD STORAGE PVT . LTD. VS. ACIT REPORTED IN (2011) 16 TAXMMAN.COM 88 (AHD), WHEREIN IT WAS HELD AS UNDER: THIS SECTION (SECTION 80AC) DOES NOT REQUIRE THAT T HE CLAIM UNDER SECTION 80IB SHOULD BE MADE ONLY THROUGH THE ORIGINAL RETU5RN IN TIME. IT ONLY PRESCRIBES THE CONDITION THAT THE ORIGINAL RETURN FILED SHOULD BE IN TIME FOR ENABLIN G THE ASSESSEE TO MAKE A CLAIM. IN OTHER WORDS, IT IS NOT A REQUIREMENT TO MAKE THE CLAIM IN THE ORIGINAL RETURN ITSELF, WHICH IS TO BE FILED WITHIN THE TIME. WE MAY FURTHER EXPLAIN THAT FOR CLAIMING DEDUCTION UNDER SECTION 80IB, THE ONLY CONDITION IS THAT THE ORIGINAL RETUR N SHOULD BE FILED IN TIME, BUT THE CLAIM NEED NOT NECESSARILY BE MADE IN THE ORIGINAL RETURN, IT CAN BE MADE SUBSEQUENT THERETO ALSO. 7. FINALLY, HE PLACED RELIANCE ON THE DECISION OF H ONBLE SUPREME COURT IN THE CASE OF CIT VS. MAHALAXMI SUGAR MILLS CO. LTD. REPORTED IN (1986) 160 ITR 920 (SC) WHEREIN IT WAS HELD THAT 6 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 IN THE SECOND PLACE THERE IS A DUTY CAST ON THE IT O TO APPLY THE RELEVANT PROVISIONS OF THE ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF THE ASSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAX LIABILITY. MERELY BECAUSE THE AS SESSEE FAILS TO CLAIM THE BENEFIT OF A SET OFF CANNOT RELIEVE THE ITO OF HIS DUTY TO APPLY SECTION 24 IN AN APPROPRIATE CASE. 8. HE FURTHER STATED THAT THE BENEFICIAL PROVISION SHOULD BE INTERPRETED IN FAVOUR OF THE ASSESSEE IF ALL THE CONDITIONS ELIGIBLE TO CLAIM TH E SAME WERE FULFILLED BY THE ASSESSEE SUBSTANTIALLY AND THE SAME SHOULD NOT BE DENIED MER ELY ON TECHNICAL GROUNDS, AND THAT THE PROVISIONS WHICH IS INTENDED FOR PROMOTING GROWTH H AS TO BE INTERPRETED LIBERALLY AND DOES NOT GET FRUSTRATED. 9. WITH REGARD TO SECOND GROUND RAISED BY THE REV ENUE, HE FURTHER ARGUED THAT TAX AUDIT REPORT U/S. 44AB OF THE ACT HAS BEEN SIGNED P RIOR TO THE DATE OF FILING THE ORIGINAL RETURN OF INCOME. HE STATED THAT THE TAX AUDIT REP ORT WAS SIGNED ON 16 TH OCTOBER, 2006, ORIGINAL RETURN OF INCOME WAS FILED ON 29.11.2006 A ND THE DUE DATE U/S. 139(1) OF THE ACT IS 30.11.2006. ACCORDINGLY, HE ARGUED THAT THE GRO UND TAKEN BY THE REVENUE IN THIS REGARD IS FACTUALLY INCORRECT. 10. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. THE FACTS STATED HEREINABOVE REMAINED UNDISP UTED AND HENCE, THE SAME ARE NOT REITERATED FOR THE SAKE OF BREVITY. THE ANALYSIS T O THE IMPUGNED ISSUE BY THE LD. CIT(A) AND THE VARIOUS PROVISIONS OF THE ACT RELATING TO T HE IMPUGNED ISSUE TOGETHER WITH THE VARIOUS CASE LAWS RELIED ON BY THE LD. AR ARE NOT R EITERATED HEREIN FOR THE SAKE OF BREVITY. WE FOUND IT PERTINENT TO ANALYSE THE APPLICABILITY OF THE SPECIAL BENCH DECISION OF THE RAJKOT TRIBUNAL IN THE CASE OF SAFFIRE GARMENTS VS. ITO REPORTED IN (2012) 28 TAXMAN.COM 27 (RAJKOT S.B) DATED 30.11.2012 TO THE FACTS OF THE INSTANT CASE. WE FIND THAT THE HONBLE SPECIAL BENCH OBSERVED THAT THE PR OVISO TO SECTION 10A(1A) OF THE ACT STATES THAT NO DEDUCTION UNDER THIS SECTION SHALL B E ALLOWED TO AN ASSESSEE WHO DOES NOT FURNISH A RETURN OF HIS INCOME ON OR BEFORE THE DUE DATE SPECIFIED UNDER SECTION 139(1) OF THE ACT AND ACCORDINGLY, IT WAS HELD THAT THE ABOVE PROVISO IS MANDATORY AND NOT DIRECTORY. THE HONBLE SPECIAL BENCH DISTINGUISHED CATENA OF C ASES RELIED ON BY THE ASSESSEE AND HELD THAT THOSE DECISIONS WERE IN DIFFERENT CONTEXT , VIZ., FILING OF AUDIT REPORT, FORM NO. 10CCB ETC. AND HENCE, WERE NOT APPLICABLE TO THE AS SESSEE. WHILE DISTINGUISHING THE CASES, THE HONBLE SPECIAL BENCH OBSERVED THAT IN T HE INSTANT CASE THE ISSUE WAS FILING OF RETURN ITSELF AND NOT FILING OF DOCUMENTS ALONG WIT H THE RETURN. 7 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 11. IN THE INSTANT CASE BEFORE US, THE ASSESSEE HAD FILED THE ORIGINAL RETURN OF INCOME ON 29.11.2006 WHICH WAS BEFORE THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT I.E. 30.11.2006. THEREAFTER, THE ASSESSEE HAD FILED REVISED RETURN O N 28.03.2008 WHEREIN IT CLAIMED DEDUCTION U/S. 80IA OF THE ACT. SINCE THE ASSESSEE HAD FILED ITS RETURN OF INCOME BEFORE THE DUE DATE SPECIFIED U/S. 139(1) OF THE ACT FOR THE R ELEVANT YEAR, THE QUESTION OF DENYING THE BENEFIT U/S. 80IA OF THE ACT DOES NOT ARISE. HENCE , THE DECISION OF THE HONBLE SPECIAL BENCH CANNOT BE MADE APPLICABLE TO THE FACTS OF THE INSTANT CASE BEFORE US. ON THE CONTRARY, WE FIND THAT THE SAID DECISION IS TO BE I NTERPRETED IN FAVOUR OF THE ASSESSEE SINCE THE ASSESSEE HAD FILED ITS RETURN BEFORE THE DUE DA TE AND AS SUCH, IS ELIGIBLE FOR DEDUCTION. IT IS NOT THE CASE THAT THE ASSESSEE BEFORE THE HON BLE SPECIAL BENCH HAD FILED ITS ORIGINAL RETURN BEFORE THE DUE DATE OF FILING THE RETURN FOR THE RELEVANT YEAR AND CLAIMED DEDUCTION U/S. 10A OF THE ACT IN ITS REVISED RETURN. THE CAS E BEFORE THE HONBLE SPECIAL BENCH WAS THAT THE ASSESSEE HAD FILED THE RETURN ITSELF AFTER THE DUE DATE OF FILING THE RETURN AND HENCE, THE HONBLE SPECIAL BENCH DECIDED THE ISSUE AGAINST THE ASSESSEE, WHICH IS NOT THE CASE OF THE ASSESSEE BEFORE US. WE FIND THAT THE LD. CIT(A ) HAD MADE THE VERY SAME OBSERVATION AFTER INTERPRETING THE SECTION 80AC OF THE ACT [SIM ILAR TO PROVISO TO SEC. 10A(1A)] I.E. CLAIM OF SECTION 80IA SHALL BE ALLOWED IF RETURN IS FURNISHED BEFORE THE DUE DATE OF FILING THE RETURN AND HELD THAT THE ASSESSEE IS SQUARELY E NTITLED FOR DEDUCTION U/S. 80IA OF THE ACT AS ALL THE CONDITIONS THEREIN WERE DULY FULFILLED B Y THE ASSESSEE. THE LD. DR DID NOT REFUTE ANY OF THE FINDINGS OF THE LD. CIT(A) BY PRODUCING ANY COGENT MATERIAL OR CONTRARY EVIDENCE AND THE SUBMISSIONS MADE BY THE LD. AR BEF ORE US. IN VIEW OF OUR AFORESAID FACTS AND FINDINGS AND RESPECTFULLY FOLLOWING THE J UDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE DO NOT FIND ANY INFIRMITY IN THE OR DER OF THE LD. CIT(A) AND THE SAME IS HEREBY UPHELD. APPEAL OF REVENUE IS DISMISSED. 12. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 15.03.2017 SD/- SD/- (S. S. VISWANETHRA RAVI) (M. BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 15TH MARCH, 2017 JD.(SR.P.S.) 8 ITA NO.790/KOL/2014 MACKINTOSH BURN LTD., AY 2006-07 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT DCIT, CIRCLE-4, KOLKATA. 2 RESPONDENT M/S. MACKINTOSH BURN LTD., D-1/1, GI LLANDER HOUSE, 8, N. S. ROAD, KOLKATA-700 001. 3. THE CIT(A), KOLKATA 4. 5. CIT, KOLKATA. DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .