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Commissioner Of Income Tax-Vi Vs. M/s Unitech Ltd.
December, 03rd 2015
$~
*         IN THE HIGH COURT OF DELHI AT NEW DELHI
10.
+                       ITA 239/2015 & CM No. 6678/2015
          COMMISSIONER OF INCOME TAX-VI                          ..... Appellant
                             Through Mr Rohit Madan, Advocate.

                             versus

          M/S UNITECH LTD.                           ..... Respondent
                        Through Mr Salil Aggarwal and Mr Ravi Pratap
                        Mall, Advocates.

          CORAM:
          HON'BLE DR. JUSTICE S.MURALIDHAR
          HON'BLE MR. JUSTICE VIBHU BAKHRU
                        ORDER
          %             05.10.2015

CM No. 6678/2015 (Delay in refiling)
1.        For the reasons stated in the application, the delay of 296 days in
refiling the appeal is condoned.
2.        The application stands disposed of.


ITA 239/2015


3. 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.




     ITA No. 239/2015                                                     Page 1 of 5
4. 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.







5. 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.


6. 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.


7. 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



 ITA No. 239/2015                                                   Page 2 of 5
of which have held the provision under Section 80AC of the Act to be
mandatory. He has also referred to the decisions of the ITAT Special Bench
in Saffire Garments v. ITO 20 ITR (Trib) 623, of the ITAT Madras Bench
in 1219-1223/MDS/2012 (ACIT v. Shri V.N. Devadoss), of the ITAT
Chandigarh Bench in 250-2511CHD/2003 (Lakshmi Energy and Foods
Ltd. v. ACIT) and the decision dated 30th January 2015 of the ITAT
Mumbai Bench in ITA No. 4727/Mum/2012 (Dwarkadas Panchmatiya v.
ACIT).


8. 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).


9. The Court notices at the outset that the decisions of this Court both in CIT



 ITA No. 239/2015                                                     Page 3 of 5
v. Integrated Databases (I) Ltd. (supra) and CIT v. Contimeters Electricals
(P) Ltd. (supra) were on the question whether the provision of Section 10-B
(5) of the Act which requires the filing of a report of an accountant along
with the return was mandatory. Neither decision was directly on question
whether the time limit for filing the return in terms of Section 80AC read
with Section 139 (1) of the Act was mandatory. Although the decision of the
A.P. High Court in CIT v. Sri S Venkataiah (supra) concerned this very
issue, it was one declining to frame a question of law thereby affirming the
order of the ITAT. It was a short order in the facts of the case where the
Assessee appears to have shown "reasonable cause for filing the return of
income belatedly" and that it was "beyond the control of the Assessee." On
the other hand, the decisions of the Uttarakhand High Court in Umesh
Chandra Dalakoti (supra) and of the Calcutta High Court in CIT v. Shelcon
Properties (P) Ltd. (supra) appear to support the case of the Revenue that
Section 80 AC is mandatory. However, there appears to be no authoritative
pronouncement of this Court on the interpretation of Section 80AC of the
Act and whether the said provision is mandatory or directory.







10. 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.




 ITA No. 239/2015                                                     Page 4 of 5
11. 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.




                                                   S.MURALIDHAR, J



                                                   VIBHU BAKHRU, J
OCTOBER 05, 2015
pkv




 ITA No. 239/2015                                                 Page 5 of 5

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