Nileshwar Rangekallu Chethu Vs CIT (Kerala High Court)
Kerala High Court held that deduction under section 80P of the Income Tax Act is allowable only if the same is claimed via a valid return.
Facts- For the assessment year 2009-10, the appellant did not file any return of income. Believing that the appellant had income chargeable to tax that had escaped assessment, the Department issued a notice u/s. 148 of the IT Act to the appellant on 6.2.2012 requiring the appellant to furnish a return of income within 30 days of receipt of the notice. The appellant failed to file the return of income in response to the notice u/s. 148. A return was however filed by the appellant on 5.7.2012, which was much beyond the date for filing of return in terms of Section 139(4) of the IT Act.
The return of income for the assessment year 2009-10 should have been filed on or before 31.3.2011 in terms of Section 139(4) of the IT Act. Since the return of income was filed after the expiry of the time allowed u/s. 139(4) and much after the due date mentioned in the notice u/s. 148, AO treated the same as invalid and proceeded to complete the assessment in terms of Section 144 of the IT Act after hearing the representative of the appellant and verifying the books of account and other details called for by the Department.
While completing the assessment, the claim of the appellant for deduction u/s. 80P was disallowed on the ground that the claim for deduction had not been made in a valid return filed by the appellant in terms of the IT Act. It was the stand of AO that in view of the provisions of Section 80A(5) of the IT Act, the claim for deduction could not be considered.
Conclusion- It is clear that the statutory scheme permits the allowance of a deduction under Section 80P of the IT Act only if it is made in a return recognised as such under the IT Act, and after 1.4.2018, only if that 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 200910 and 2010-11, were admittedly filed after the dates prescribed under Sections 139(1) and 139(4) or in the notices issued under 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 the completion of the assessment.
FULL TEXT OF THE JUDGMENT/ORDER OF KERALA HIGH COURT
As both these appeals arise out of a common order of the Income Tax Appellate Tribunal, Cochin Bench, in relation to the appellant/assessee and involve a common issue relating to the entitlement of the appellant to deduction under Section 80P of the Income Tax Act [hereinafter referred to as the ‘IT Act’], they are taken up for consideration together and disposed by this common judgment.
2. The brief facts necessary for disposal of these appeals are as follows:
The appellant/assessee is a Labour Co-operative Society registered under the Kerala Co-operative Societies Act. The Society was formed for the financial and social welfare of toddy tappers/workers and for tapping and selling toddy within the jurisdiction of Nileshwar. During the financial year 2008-09, the appellant Society got license from the Excise Department for carrying out the activity for tapping, pooling and marketing of toddy within the Excise range of Nileshwar.
3. For the assessment year 2009-10, the appellant did not file any return of income. Believing that the appellant had income chargeable to tax that had escaped assessment, the Department issued a notice under Section 148 of the IT Act to the appellant on 6.2.2012 requiring the appellant to furnish a return of income within 30 days of receipt of the notice. The appellant failed to file the return of income in response to the notice under Section 148. A return was however filed by the appellant on 5.7.2012, which was much beyond the date for filing of return in terms of Section 139(4) of the IT Act. The return of income for the assessment year 2009-10 should have been filed on or before 31.3.2011 in terms of Section 139(4) of the IT Act. Since the return of income was filed after the expiry of the time allowed under Section 139(4) and much after the due date mentioned in the notice under Section 148, the Assessing Officer treated the same as invalid and proceeded to complete the assessment in terms of Section 144 of the IT Act after hearing the representative of the appellant and verifying the books of account and other details called for by the Department. While completing the assessment, the claim of the appellant for deduction under Section 80P was disallowed on the ground that the claim for deduction had not been made in a valid return filed by the appellant in terms of the IT Act. It was the stand of the Assessing Officer that in view of the provisions of Section 80A(5) of the IT Act, the claim for deduction could not be considered.
4. For the assessment year 2010-11 also, the appellant did not file any return of income voluntarily. A notice under Section 142 (1) of the IT Act was therefore issued to it on 3.2.2012 requiring it to furnish a return of income for the assessment year in question. The appellant however failed to comply with the terms of the notice, and inasmuch as there was a failure on the part of the appellant in filing return of income under Section 139(1) and Section 139(4) and further in terms of the notice issued to it under Section 142(1) of the IT Act, proceedings were initiated for completing the assessment on best judgment basis under Section 144 of the IT Act. The assessment was thereafter completed after hearing the authorised representative of the appellant and perusing the books of account and other details called for by the Department. As in the case of the previous assessment year, the assessment for the year 2010-11 was also completed by denying the claim of the appellant for deduction under Section 80P of the IT Act, on the ground that in terms of Section 80A(5) of the IT Act, the deduction had to be claimed in a valid return filed by the assessee, and in the instant case, the appellant/assessee had not filed a valid return.
5. Against the assessment orders for both the assessment years 2009-10 and 2010-11, the appellant preferred appeals before the Appellate Authority. The Appellate Authority dismissed the appeals by upholding the stand of the Assessing Authority. In further appeals preferred before the Tribunal, the Tribunal did not specifically go into the issue of whether or not the belated returns filed by the appellant in both the assessment years was valid or not, but found that in view of the fact that the claim for deduction under Section 80P(2)(a)(vi) of the IT Act had already been decided against the assessee by the jurisdictional High Court in the decision reported in Peravoor Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham and others v. Commissioner of Income-Tax – [(2016) 380 ITR 34 (Ker)], there was no necessity to interfere with the order of the First Appellate Authority dismissing the appeals preferred by the appellant/assessee for the assessment years 2009-10 and 2010-11.
6. The appellant/assessee has preferred these IT Appeals raising the following substantial questions of law therein:
1. Whether the Tribunal is right in law and facts of the case in not considering the issue of rejection of claim under Section 80P by the Lower authorities as hit by Section 80 A (5) of the Act as the claim made in a belated return, which issue is now squarely covered in favour of the assessee by the decision of the Honourable Court in the case of Chirakkal Service Co-operative Bank Ltd. v. CIT and other connected cases reported in (2016) 384 ITR 490 (Ker).
2. Whether the Tribunal is right in law and facts of the case in not considering the issue/fact that both the assessing officer and the CIT (Appeals) has held that the appellant/assessee is not entitled to any deduction under section 80 P of the Act erroneously holding that the return filed by the appellant is non-est and invalid and hit by section 80 A (5) of the Act and therefore the appellant is not entitled to any deduction under section 80 P of the Act?
3. Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the appellant society cannot be considered as Co-operative Societies engaged in the collective disposal of labour of its members as contemplated under section 80P(2) (a) (vi) of the Act and therefore not eligible for deduction under section 80 P of the Act? Is not such a finding of the Tribunal illegal, arbitrary and perverse?
4. Whether the Tribunal is right in law and facts of the case in upholding the finding of the assessing officer/contention of the revenue that the appellant society having granted registration under the Kerala Co-operative Societies Act, 1969 and the Rules as a “Miscellaneous Society” and therefore assessee cannot be treated as a society engaged in collective disposal of labour of its members and therefore is not eligible/entitled for the deduction under section 80 P (2) (a) (vi) of the Act?
5. Whether the Tribunal was right in law and facts of the case in not considering the issue of eligibility of the appellant for deduction under section 80 P (2) (a) (iii) of the Act?
6. Whether, the Tribunal is right in law and facts of the case in not remanding the matter back to the assessing officer to consider the issue on merits and to consider whether the appellant society falls in any of the category mentioned under section 80 P (2) (a) and eligible for deduction under 80 P of the Act?
Re: Questions of law Nos.3 and 4:
7. These questions of law that have been raised by the appellant/assessee need not detain us for long. By a judgment reported in Peravoor Range Kallu Chethu Vyavasaya Thozhilali Sahakarana Sangham [supra], a Division Bench of this Court has, in the assessee’s own case for a previous assessment year, answered the issues in favour of the Revenue and against the assessee. Following the said judgment of the Division Bench of this Court, we answer the aforesaid questions of law in favour of the Revenue and against the assessee for the assessment years 2009-10 and 2010-11 respectively.
Re: Questions of law Nos. 1, 2, 5 and 6:
8. These questions of law are taken together since they pertain to the issue of whether the claim for deduction under Section 80P(2) (a)(iii) of the IT Act, that was made by the assessee in returns stated to be filed on 5.7.2012 for the assessment years 2009-10 and 2010-11 can be seen as validly made for the purposes of the IT Act. The authorities below hold the view that it cannot. They rely on the provisions of Section 80A(5) of the IT Act that make it obligatory on an assessee claiming deduction under Section 80P of the IT Act to make the claim in its return of income, to contend that the return of income referred to in Section 80A(5) must necessarily be one that is traceable to the provisions of the IT Act that mandate the filing of a return such as Section 139(1), Section 139(4), Section 142(1) or Section 148, and since in the case of the assessee herein, the claim was made in a return filed beyond the due date for filing returns under the aforesaid provisions, the return filed had to be seen as invalid and non-est.
9. Per contra, the contentions of Sri.Arun Raj, the learned counsel for the appellant/assessee, briefly stated are as follows:
