COMMISSIONER OF INCOME TAX-VI vs. M/S UNITECH LTD

This is an Appeal by the Revenue against the order dated 18th December, 2013 passed by the Income Tax Appellate Tribunal (‘ITAT’) in ITA No. 1014/Del/2012 for the Assessment Year (AY) 2008-09.

In the present case the Assessee filed its return of income for the AY in question on 2nd April 2009 claiming the benefit of deduction under Section 80IB (10). This was allowed by the Assessing Officer (AO) while making assessment under Section 143(3) of the Income Tax on 30th December, 2009. In terms of Section 80AC of the Act the return had to be filed by the Assessee, ‘on or before the due date specified under Section 139(1)’, which in this case meant on or before 31st October, 2008.

A short question before the Commissioner of Income Tax (CIT) who initiated proceedings under Section 263 and proceeded to withdraw the deduction claimed by the Assessee under Section 80IB(10) was whether the requirement under Section 80AC, that the return had to be filed within the time prescribed under Section 139(1) of the Act, was mandatory.

The ITAT in the impugned order allowing appeal filed by the Assessee noted that there was a cleavage of opinion on the issue as was evident from two lines of decisions of the ITAT itself. Since a possible view in favour of the Assessee could be taken if one line of decisions was applied, the ITAT concluded that there was no justification for CIT to have invoked the jurisdiction Section 263 of the Act.

Before this Court Mr Rohit Madan, learned Standing Counsel for the Revenue has placed reliance on the decision dated 27th August 2012 of the Uttarakhand High Court in ITA No. 07/2012 (Umesh Chandra Dalakoti v. Assistant Commissioner of Income Tax) as well as of the Calcutta High Court in CIT v. Shelcon Properties (P) Ltd. [2015] 370 ITR 305 (Cal) both 2015:DHC:8364-DB

Mr Salil Aggarwal, learned counsel for the Assessee, on the other hand, has placed reliance on the decisions of this Court in CIT v. Integrated Databases (I) Ltd. (2009) 178 Taxman 432 (Del) and CIT v. Contimeters Electricals (P) Ltd. (2009) 178 Taxman422 (Del). He also placed reliance on the decision dated 26th June 2013 of the Andhra Pradesh High Court in ITTA No. 114 of 2013 (CIT v. Sri S Venkataiah), the decisions dated 29th April 2013 of the ITAT Madras in ITA No. 1214/Mds/2012 (ACIT v. Precot Meridian Ltd.) and 4th February 2013 in ITA No. 1219-1223/Mds/2012 (ACIT v. V.N. Devadoss), the decisions of the ITAT Delhi dated 30th July 2010 in ACIT v. Dhir Global Industrial (P) Ltd. 133 TTJ (Del) 580 and dated 25th January 2012 in ITA No. 3352/Del/2011(Hansa Dalakoti v. ACIT), the decision of the Bangalore ITAT dated 12th April 2103 in M/s Vanshee Builders & Developers P. Ltd. v. CIT 63 SOT 30 and the decision of the Kolkata ITAT dated 19th April 2013 in ITA No. 1586/Kol/2012 (M/s Shelcon Properties (P) Ltd. v. JCIT).

The Court notices at the outset that the decisions of this Court both in CIT 2015:DHC:8364-DB

As far as the present case is concerned, the Court is satisfied that at the time when the CIT passed the order dated 6th February, 2012 under Section 263 of the Act there was a conflict of opinions of the various benches of the ITAT on whether 80AC was mandatory. Consequently, the ITAT was not in error in reversing the order of the CIT as far as the question of exercising jurisdiction under Section 263of the Act was concerned. No substantial question of law arises on the said issue.

It is clarified that the question whether the requirement under Section 80AC of the Act is mandatory is left open for consideration in an appropriate case. The appeal is dismissed in the above terms.