SHRI SWAMI VIVEKANAND NAGARI SAHAKARI PAT SANSTHA MARYADIT,PANDHARPUR vs. INCOME TAX OFFICER WARD 2 PANDHARPUR , PANDHARPUR

6. The appellant craves for leave to add, alter, amend, delete etc the above grounds of appeal in the interest of natural justice.”

Additional Ground :

1. On the facts and in the circumstances of the case and in law the ld.CIT(A) erred in passing the order without verifying the service of notice u/s.142(1) dated 12.12.2017, without which it could not be possible for appellant to file the return of income or before the date mentioned in the said notice.” 2 2. At the outset of hearing, no one appeared on behalf of the assessee. No one had appeared on behalf of assessee for the earlier hearing scheduled on 02.07.2025, hence, the hearing was adjourned to 04.07.2025.

2.1 On 04th July 2025 Bench did not function, hence case was adjourned to 04/08/2025. On 04/08/2025 no one appeared on behalf of the assessee, no adjournment letter was filed. Hence the case was adjourned to 15/09/2025 which was informed to the assessee by Notice. On 15.09.2025 also, no one appeared, hence the case was adjourned to 26.11.2025. Notice was issued to the assessee. No one appeared on 26.11.2025, no adjournment letter has been filed. ITAT has served the notices to the assessee electronically on the email address filed by Assessee in Form No.36. The said email address is as under : shailesh9885@gmail.com 2.2 It is observed that assessee has voluntarily given the above referred email address in the Form No.36 which is filed as per Rule 47 for filing the appeal before ITAT.

“Where the assessee fails to make a claim in his return of income for any deduction under section 10A or section 10AA or section 10B or section 10BA or under any provision of this Chapter under the heading “C.- Deductions in respect of certain incomes:, no deduction shall be allowed to him thereunder.”

Section 80P comes within heading „C‟ of Chapter VIA of the Act. Therefore sub-Section (5) of section 80P is squarely applicable in appellant‟s case. Since it had failed to file any valid return as per notice issued u/s 142(1), the deduction u/s 80P as claimed by the appellant was rightly disallowed by the assessing officer. It is also to be mentioned here that in the ground of appeal no.3, the appellant stated that the deduction u/ss 80P was denied by the AO after invoking the provisions of section 80AC of the Act. it is stated that the appellant has misinterpreted the assessment order on this account. The AO had invoked the provisions of section 80A(5) and not 80AC of the Act while denying the deduction u/s 80P. There is no infirmity in AO‟s action and the assessed income is confirmed. The appeal is therefore dismissed.”

5. Aggrieved by the order u/s.250 of the Act, Assessee filed appeal before this Tribunal.

6. We are deciding each ground of assessee as under :

Additional Ground : 6.1 Assessee raised additional ground that notice u/s.142(1) dated 12.12.2017 was not served on the assessee. This ground was never raised before the ld.CIT(A). It is also mentioned in the assessment order paragraph 1 that notice dated 12.12.2017 was served on assessee on 26.12.2017. On perusal of the additional ground and other documents filed by the Assessee, it is noted that Assessee has filed copy of notice dated 12.12.2017 along with the additional ground. Assessee has also filed Screenshot obtained from E-filing portal which shows that notice u/s.142(1)was available for 6 6.1.1 Thus, it can be observed that the Screenshot obtained from the E-filing Portal which has been submitted by Assessee does show that notice u/s.142(1) was available for download. It means, notice u/s.142(1) dated 12.12.2017 was duly served on assessee. 7 6.1.2 It is also observed from the submission of the Assessee which Assessee filed before the CIT(A) which has been reproduced by him in the order u/s 250 of the Act, that Assessee has accepted receipt of the Notice u/s 142 dated 12/12/2017. The relevant submission of the Assessee as appearing in the order u/s 250 of the Act is reproduced here as under :

6.1.3 Thus, the Assessee has referred to the Notice u/s.142 dated 12/12/2027 in its submission made before the ld.CIT(A).

6.1.4 All the above facts prove that the Notice u/s.142 dated 12/12/2017 was duly served on the Assessee. 8 6.1.5 In these facts and circumstances of the case, the additional ground raised by the assessee that notice u/s.142(1) dated 12.12.2017 was not served on assessee is dismissed.

7.1 The due date of filling the Return of Income u/s 139(1) of the Act was 07/11/2017 for AY 2017-18.

7.2 The relevant sections pertaining to filling of Return are reproduced here under : Return of income. “139. (1) Every person,— (a) being a company or a firm; or (b) being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is 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 prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed : ………………… (4) Any person who has not furnished a return within the time allowed to him under sub-section (1), may furnish the return for any previous year at any time before the end of the relevant assessment year or before the completion of the assessment, whichever is earlier.” 9 7.3Thus, as per Section 139(4) of the Act, if a person fails to file return of Income within the time permitted u/s139(1) may furnish the return of Income before the end of relevant Assessment Year. Thus, in the case of the Assessee time to file Return u/s 139(4) was upto 31/03/2019.

7.4 In the case of the assessee Notice u/s 142 dated 12/12/2017 was served on the assessee but assessee has not filed Return within the time allowed as per the Notice u/s 142 of the Act.

7.5 In this case admittedly the Return of Income was filed on 21/07/2019. We have already reproduced the statutory dates, it can be noted that the Return of Income filed by the Assessee on 21/07/2019 was much beyond the time allowed u/s 139(1),139(4) and 142. Therefore, the Assessing Officer treated the Return as Invalid. Assessing Officer rejected Assessee’s claim for deduction u/s.80P as the Return was invalid and as per provisions of Section 80A(5) of the Act, deduction u/s 80P must be claimed in the Return of Income. The word “Return of Income” referred in section 80A(5) means a valid Return of Income. The Return which was not filed within the time allowed u/s 139(1),139(4) and 142 is invalid and it is Return. Therefore, the Assessing Officer was right in rejecting the claim of the assessee for deduction u/s 80P of the Act.

7.6 We find support from the Order of the Hon’ble Kerala High Court in the case of NileshwarRangekallu Chethu VyavasayaThozhilaliSahakarana SanghamVs. CIT [2023] 459 ITR 730 (Kerala)[14-03-2023]. In the said case Hon’ble Kerala High Court on identical facts held as under : Quote, “3. For the assessment year 2009-10, the appellant did not file any return of income. Believing that theappellant had income chargeable to tax that had escaped assessment, the Department issued a notice undersection 148 of the IT Act to the appellant on 6-2-2012 requiring the appellant to furnish a return of incomewithin 30 days of receipt of the notice. The appellant failed to file the return of income in response to thenotice under section 148. A return was however filed by the appellant on 5-7-2012, which was much beyondthe date for filing of return in terms of section 139(4) of the IT Act. The return of income for the assessmentyear 2009-10 should have been filed on or before 31-3- 2011 in terms of section 139(4) of the IT Act. Sincethe return of income was filed after the expiry of the time allowed under section 139(4) and much after thedue date mentioned in the notice under section 148, the Assessing Officer treated the same as invalid andproceeded to complete the assessment in terms of section 144 of the IT Act after hearing the representative ofthe appellant and verifying the books of account and other details called for by the Department. Whilecompleting the assessment, the claim of the appellant for deduction under section 80P was disallowed on theground that the claim for deduction had not been made in a valid return filed by the appellant in terms of theIT Act. It 11

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11. On a consideration of the rival submissions and on a perusal of the statutory provisions, we find that areading of section 80A(5) and Section 80AC of the IT Act as they stood prior to 1-4-2018, when the latterprovision was amended by Finance Act 2018, would reveal that the statutory scheme under the IT Act was toadmit only such claims for deduction under section 80P of the IT Act as were made by the assessee in a returnof income filed by him. That return can be under sections 139(1), 139(4), 142(1) or section 148, and to bevalid, had to be filed within the due date contemplated under those provisions. Under section 80A(5), theclaim for deductionunder section 80P could be made by an assessee in a return filed within the timeprescribed for filing such returns under any of the above provisions. The amendment to Section 80AC witheffect from 1-4-2018, however, mandated that for an assessee to get a deduction under section 80P of the ITAct, he had to furnish a return of his income for such assessment year on or before the due date specified insection 139(1) of the IT Act. In other words, after 1-4-2018, even if the assessee makes his claim fordeduction under section 80P in a return filed within time under sections 139(4), 142(1) or section 148, he willnot be allowed the deduction, unless the return in question was filed within the due date prescribed undersection 139(1). Thus, it is 13 clear that the statutory scheme permits the allowance of a deduction IT Act only if it is made in a return recognised as such under the IT Act, and after 1-4-2018, only ifthat return is one filed within the time prescribed under section 139(1) of the Act. As the return in these cases,for the assessment years 2009-10 and 2010-11, were admittedly filed after the dates prescribed under sections139(1) and 139(4) or in the notices issuedunder section 142(1) and section 148, the returns were indeed non-est and could not have been acted upon by the Assessing Officer even though they were filed before thecompletion of the assessment.

7.7 Thus, on identical facts in the case of Nileshwar Rangekallu ChethuVyavasayaThozhilaliSahakarana Sangham (supra) the Hon’ble Kerala High Court held that the Return of Income filed beyond the time allowed u/s.139,142 and 148 is Invalid Return and hence as per section 80A(5) of the Act, Assessee was held to be not eligible for deduction u/s.80P of the Act.

7.8 TheHon’ble Bombay High Court in the case of EBR Enterprises Vs. Union of India 415 ITR 139 (Bombay)[04-06-2019] has held as under : Quote, “5. As per this provision, where the assessee fails to make a claim in his return of income for any deduction under Section 10A or Section 10AA or Section 10B or Section 10BA or under any provision of the said Chapter - VI A under the heading "C.-Deduction in respect of certain incomes", no deduction would be allowed to him under the said provision. In plain terms, this Sub Section (5) of Section 80A of the Act imposes an additional condition for claim of deduction in relation to income under any of the provisions mentioned therein. Apart from the requirement of fulfilment of individual set of respective conditions for 15 [A] the purpose of claiming the concerned deduction, this plenary condition requires that the claim ought to have made in the return of income by the assessee and if the assessee fails to make such claim in the return of income, such deduction shall not be allowed to him under the relevant provision. Admittedly, in the present case, the Petitioners had not raised any such claim in the return of income. In plain terms, the claim of the Petitioners under Section 80-IB (10) of the Act would be hit by Sub Section (5) of Section 80A of the act. …………………….. ………………………..

What Sub Section (5) of Section 80A of the Act mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income Tax Authority. This condition attaches to the claim of the assessee and has to be implemented by the Assessing Officer, CIT or the Appellate Tribunal as the case may be. There is no indication in Sub Section (5) of Section 80A of the Act as to why the restriction contained therein amounts to limiting the power of Assessing Officer but not that of Commissioner.” Unquote.

7.9 Thus, Hon’ble Jurisdictional High Court categorically held that as per Section 80A(5) of the Act, to claim deduction u/s chapter VIA of the Act, assesseehas to claim the deduction in the return of Income. The Return of Income means valid Return of Income.

8. Since in the case of the Assessee, the Return of Income was filed much beyond the time allowed u/s 139, 142 of the Act, the Return of Income was not a Valid Return of Income. Therefore, the 16 Assessee for deduction u/s 80P in the Invalid Return is not valid. Hence, as per section 80A(5),respectfully following the Hon’ble Kerala High Court (supra) and Hon’ble Bombay High Court (supra) we uphold the disallowance u/s 80P of the Act made by the Assessing Officer in the Assessment Order.

8.1 Accordingly Ground Numbers 2,3,4 and 5 raised by the assesseeare dismissed. Ground No.1 : 9. In this case admittedly Return of Income was filed on 21/07/2019. We have already discussed in earlier paragraphs that the Return of Income filed by the Assessee was beyond the time allowed u/s 139, 142 of the Act. Hence the impugned Return of Income was invalid, non-est Return. We have already reproduced the decision of Hon’ble Kerala High Court, wherein Hon’ble High Court has held that Return filed beyond the time permitted u/s.139, 142 is Invalid Return. The Hon’ble Karnataka High Court in the case of K.Nagesh Vs. ACIT [2015] 376 ITR 473 dated 20.04.2015 has held that “The word 'return', thus means, a legal and valid return.” Therefore, respectfully following, Hon’ble Kerala High Court and Hon’ble Karnataka High Court, wehave already held that 17 9.1Section 143(2) of the Act is reproduced here as under : Assessment. 143. (2) Where a return has been furnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer or the prescribed income-tax authority, as the case may be, if, considers it necessary or expedient to ensure that the assessee has not understated the income or has not computed excessive loss or has not under-paid the tax in any manner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attend the office of the Assessing Officer or to produce, or cause to be produced before the Assessing Officer any evidence on which the assessee may rely in support of the return:

9.2Section 143(2) stipulates that notice u/s 143(2) shall be issued where a Return has been filed u/s 139 or in response to notice u/s 142. In the case of the Assessee we have already held that the Return of Income was filed beyond the time permitted u/s.139,142 of the Act, hence it was Invalid, non-estReturn of Income. Henec, AO was Right in not issuing Notice u/s 143(2) of the Act. 18 9.3We find support from the ITAT (Third Member) decision in the case of Bhagat Singh and Virender Singh vs ACIT [2000] 75 ITD 1 (DELHI) (TM). In the said case it was held “7. Once it is decided that the return dated 16-3-1995 filed by the assessee was a non est return, the next question in regard to the issuance ofnotice under section 143(2) becomes insignificant”

9.3.1 The proposition of law laid down in the case of Bhagat Singh and Virender Singh Vs.ACIT (supra) is applicable in the case of the Assessee also.

9.4Therefore, we hold that the Act do not ask Assessing officer to issue notice u/s.143(2) for Invalid, non-est Return of Income. Accordingly, the AO was right in not issuing Notice u/s.143(2) of the Act. The AO has passed Assessment Order u/s 144 of the Act in the case of the Assessee.

9.5 Accordingly, the Ground No.1 raised by the assessee is dismissed.