- (1.) This appeal is directed against a judgment and order dated 19th April, 2013 passed by the learned Income Tax Appellate Tribunal reversing the order passed by the Commissioner of Income Tax (Appeal) and allowing the claim for deduction under section 80IB(10) of the I.T. Act. The facts and circumstances of the case, briefly stated, are as follows: The assessee is engaged in the business of construction of housing projects. The assessee filed its return of income for the assessment year 2009-10 on 11th February, 2010 showing gross income of Rs. 1,47,06,878.00p. The assessee claimed deduction of Rs. 94,67,987.00p under section 80IB(10) of the I.T. Act. The Assessing Officer completed the assessment under section 143(3) of the I.T. Act without allowing the deduction claimed by the assessee. The assessee preferred an appeal which was dismissed by the Commissioner of Income Tax (Appeal).
(2.) Under section 80IB(10) of the I.T. Act, the amount of deduction in the case of an undertaking engaged in developing and building housing projects, approved before 31.3.2008 by a local authority, shall be 100 percent of the profits derived in the previous year. The allowability of the aforesaid deduction is, however, subject to the following important preconditions. Where in computing the total income of an assessee of the previous year 2006 or any subsequent assessment 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 year on or before the due date specified under sub-section (1) of section 139.
(3.) Due date has been specified under section 139(1) Explanation-2 of the I.T. Act which provides that in the case where a company is an assessee, the last date of filing the return is 30th day of September of the assessment year. Admittedly, in this case the return was filed on 11th February, 2010 for the assessment year 2009-10. Therefore, the questions of law which arise in this case are: a) Whether the deduction under section 80IB(10) of the I.T. Act can be allowed when the return was not filed on or before the due date specified under section 139(1) of the I.T. Act? b) Whether section 80AC of the I.T. Act cart, be said to have left any room for discretion in the case of delayed filing of returns? The learned Tribunal in allowing the deduction advanced the following reasons: Here the negligence on the part of the assessee has not been established in so far as it was not in the interest of the assessee to be included negligent when he was dependent on the professional services which the professional service is required for documenting the claim or deduction as per law. In this view of the matter, we are of the considered view that there is no merit in the contention of the authorities below when no contrary decision has been pointed out by the ld. DR in so far as on the submission of the ld. Counsel the three decisions of the Tribunal are directly on the issue of upholding the claim of deduction even when the return has been filed belatedly on the basis of the facts and circumstances leading to such delay. In this view of the matter, we have no hesitation to set aside the order of the ld. CIT(A) and direct the AO to accept the return as filed by the assessee and allow the claim of deduction u/s. 80IB(10) of the IT Act.;