Ban Labs Private Limited v. Principal Commissioner Of Income Tax 1

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 9422 of 2021 ========================================================== BAN LABS PRIVATE LIMITED VersusPRINCIPAL COMMISSIONER` OF INCOME TAX 1 ========================================================== Appearance:MR B S SOPARKAR(6851) for the Petitioner(s) No. 1MRS MAUNA M BHATT(174) for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIandHONOURABLE MR. JUSTICE RAJENDRA M. SAREEN Date : 20/09/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.Present petition is under Article 226 of theConstitution of India seeking to challenge the order dated24.03.2021 passed by the respondent under section 264 ofthe Income Tax Act, 1961 (hereinafter referred to as “theI.T. Act” for short), whereby the revision application of thepetitioner has been rejected on the ground that he hasfailed to specify appropriate reason for delay in preferringthe application. 2.The facts leading to the present petition are asfollows:- 2.1. The petitioner is a private Company which filed itsreturn of income for A.Y. 2017-18 on 30.10.2017 declaringa total income of Rs.3,94,35,040/-. The petitioner alsoclaimed deduction of of Rs.3,34,92,334/- under section80IC of the I.T. Act of the profit and gains derived from its notified undertaking situated in the State of HimachalPradesh. For the first time such exemption was availed on08.03.2010. 2.2. According to the petitioner, the petitioner filed revisedreturn of income on 18.02.2018 and claimed deductionunder section 80IC under Rule 18BBB of the I.T. Act alongwith audit report through e-filing in support of the claim fordeduction under section 80IC. 2.3. It is the case of the petitioner that the said form wasneither filed with the original return nor with the revisedreturn. 2.4. A communication was received by the petitioner fromCentral Processing Centre, Bengaluru (hereinafter referredto as “the CPC” for convenience) under section 143(1)(a)eliciting response from the petitioner on the adjustmentsproposed to be made in the return of income. This wasdone on 23.07.2018. Thereafter on 12.09.2018, a dulycertified report 10CCB was submitted. 2.5. It is the grievance on the part of the petitioner thatwithout considering the content of the Form 10CCB, CPCcommunicated an intimation on 18.02.2018 under section143(1) of the I.T. Act disallowing the petitioner’s claimunder section 80IC. 2.6. It is the case of the petitioner that the AssistantCommissioner of Income Tax Circle 3(1) refused to giveeffect to the form 10CCB filed by the petitioner and asked for payment of demand vide letter dated 20.08.2019, on theground that e-form 10CCB was not filed within due date. 2.7. On 27.08.2019, the petitioner responded and raisedvarious issues justifying the claim of the deduction.According to the petitioner, it was not incumbent upon thepetitioner to file form 10CCB immediately along with thereturn of income. However, he has filed it during the courseof the assessment. This was rejected by the assessingofficer and therefore, on 05.03.2021, the petitionerpreferred an application under section 264 before therespondent. Thus, the grievance on the part of the petitioner isthat neither the A.O. nor CPC took into consideration thefact that there was no necessity for the assessee to fileForm 10CCB along with the return nor was there any delayin filing the said return and therefore, they could not havetaken into consideration the same while considering thematter of the assessee on merit. This has aggrieved the petitioner and therefore thepetitioner is before this Court seeking for the followingprayer :- “9A. Quash and set aside the impugned orderpassed by the Respondent at Annexure-A anddirect the Respondent to allow the application ofthe petitioner. Thus, the grievance on the part of the petitioner isthat neither the A.O. nor CPC took into consideration thefact that there was no necessity for the assessee to fileForm 10CCB along with the return nor was there any delayin filing the said return and therefore, they could not havetaken into consideration the same while considering thematter of the assessee on merit. This has aggrieved the petitioner and therefore thepetitioner is before this Court seeking for the followingprayer :- “9A. Quash and set aside the impugned orderpassed by the Respondent at Annexure-A anddirect the Respondent to allow the application ofthe petitioner. 9B.Pending admission, hearing and finaldisposal of this petition, to stay implementationand operation of the demand notice under section156 of the Act that is annexed with the intimation under section 143(1) at Annexure-C; 9C.Any other and further relief as may bedeemed just and proper may be granted in theinterest of justice.” 3.This Court issued notice on 05.07.2020. In responseto the same, the Principal Commissioner of Income Tax,Rajkot – respondent No.1 herein has filed Affidavit-in-replydenying each and every averments made in the memo ofpetition. 3.1. He has contended that the order which is impugned ispassed under section 264 of the I.T. Act where all relevantfacts have been taken into consideration at the time ofdeciding the said application. 3.2. Relying on explanation to section 264, it is urged thatthe order of Principal Commissioner of Income-tax decliningany interference be not deemed to be an order prejudicial tothe assessee and in limine this petition should bedismissed. 3.3. It is further say of the respondent that the revisionapplication filed under section 264 for revision of the orderdated 18.12.23018 issued by the CPC under section 143,ought to have been filed within one year i.e. before18.12.2019 as per provisions of sub-section (3) of section264 of the I.T. Act. However, the revision has been filed bythe petitioner on 05.03.2020, which was beyond the timepermissible under the law and there is no evidence to prove that he was prevented by sufficient cause in making theapplication within the permissible time limit. 3.4. It has also placed reliance on the case of Sarvodaya Charitable Trust versus Income Etax Officer(Exemption and Ors.reported in[(2021) 125taxmann.com75] by the petitioner, on the ground that thefacts are entirely different. 3.5. It is also averred that the notice of hearing also has been served upon the petitioner and there is sufficientopportunity given in compliance of the principle of naturaljustice and hence also, there is no cause of grievance. 6.We have heard extensively Mr.Bandish Soparkar,learned advocate for the petitioner and Ms.Mauna Bhatt,learned Senior Standing Counsel for the Department. Insupport of their respective stand, they have relied onaverments as well as decisions which have been pressedinto service, which we shall be discussing hereinafter. 6.1. On the strength of the rival submissions, thequestion that arise for consideration of this Court is as to,whether the order of revision under section 264 of the I.T.Act is justifiable. 6.2. It is apt to refer section 264 of the I.T. Act. Section 264 Revision of orders: (1)In the case of any order other than an orderto which section 263 applies passed by an authority subordinate to him, the Commissioner may, either ofhis own motion or on an application by the assesseefor revision, call for the record of any proceedingunder this Act in which any such order has beenpassed and may make such inquiry or cause suchinquiry to be made and, subject to the provisions ofthis Act, may pass such order thereon, not being anorder prejudicial to the assessee, as he thinks fit. (2)The Commissioner shall not of his ownmotion revise any order under this section if theorder has been made more than one yearpreviously. 6.2. It is apt to refer section 264 of the I.T. Act. Section 264 Revision of orders: (1)In the case of any order other than an orderto which section 263 applies passed by an authority subordinate to him, the Commissioner may, either ofhis own motion or on an application by the assesseefor revision, call for the record of any proceedingunder this Act in which any such order has beenpassed and may make such inquiry or cause suchinquiry to be made and, subject to the provisions ofthis Act, may pass such order thereon, not being anorder prejudicial to the assessee, as he thinks fit. (2)The Commissioner shall not of his ownmotion revise any order under this section if theorder has been made more than one yearpreviously. (3)In the case of an application for revisionunder this section by the assessee, the applicationmust be made within one year from the date onwhich the order in question was communicated tohim or the date on which he otherwise came toknow of it, whichever is earlier: Provided that theCommissioner may, if he is satisfied that theassessee was prevented by sufficient cause frommaking the application within that period, admit anapplication made after the expiry of that period. (4)The Commissioner shall not revise any orderunder this section in the following cases- (a)where an appeal against the order liesto the Deputy Commissioner (Appeals)] or tothe Commissioner (Appeals)] or to the Appellate Tribunal but has not been madeand the time within which such appeal maybe made has not expired or, in the case of anappealto the Commissioner (Appeals) or] tothe Appellate Tribunal, the assessee has notwaived his right of appeal; or (b)where the order is pending on anappeal before theDeputy Commissioner(Appeals)]; or (c)where the order has been made thesubject of an appeal to the Commissioner(Appeals) or] to the Appellate Tribunal. where the order has been made the (5)Every application by an assessee forrevision under this section shall be accompanied bya fee of twenty- five rupees Explanation 1-An orderby the Commissioner declining to interfere shall, forthe purposes of this section, be deemed not to be anorder prejudicial to the assessee. Explanation 2.-For the purposes of this section, theDeputyCommissioner (Appeals)] shall be deemed to be anauthority subordinate to the Commissioner. F.-General” Thus, it provides under the heading of the revision ofthe order that the thrust is on the period of limitation.According to them, the application for revision under thissection by the assessee must be made within one year fromthe date on which the order in question was communicated to him or the date on which he otherwise came to know ofit, whichever is earlier. The proviso to sub-section (3) ofsection 264 also permits the Chief Commissioner or thePrincipal Commissioner or Commissioner, as the case maybe, to be satisfied on the issue of furnishing sufficieintcause for any delay that may have been caused inpreferring the application beyond the period of 12 months.It is thus, the discretion of the concerned officer to admitthe application made after the expiry of the stipulatedperiod or is being satisfied with the explanation whichprevented the person concerned and thus, sufficiency of thecase is the ground which would allow such discretion. 6.3. As could be noticed from the Affidavit-in-reply thatemphasis on the part of the respondent is of not onlypetitioner having preferred application under section 264beyond the period of 3 years but of having failed to showany sufficient cause for such delay and thus, according tothe respondent, this order which is impugned needs to besustained. 6.3. As could be noticed from the Affidavit-in-reply thatemphasis on the part of the respondent is of not onlypetitioner having preferred application under section 264beyond the period of 3 years but of having failed to showany sufficient cause for such delay and thus, according tothe respondent, this order which is impugned needs to besustained. 6.4At one stage while taking a very liberal approach,Ms.Mauna Bhatt, learned Senior Standing Counsel hasurged that if at all this Court is inclined for order to be onceagain gone into by the officer concerned, there will be needfor petitioner to satisfy the concerned person with thesufficiency of the cause and then and then only suchapplication for revision could be allowed and otherwise not. 6.5. It is further emphasized by the learned SeniorStanding Counsel that merits of the matter cannot be looked into by this Court even if the order impugned isinterfered with. 7.Strong resistance on the part of the petitioner is thatthere is no delay at all in preferring the revision applicationand rejection is totally on the ground which isunsustainable and more over, the petitioner cannot berelegated to the concerned officer to decide whether there isdelay or not, as that would amount to giving second inningsto the officer who has not appreciated the glaring factswhich have been presented before him. 8.Gujarat High Court in the case of Zenith ProcessingMills versus Commissioner of Income, reported in 219ITR 721 was considering the question whether the tribunalwas justified in holding that the provision of section80J(6A) was mandatory and not directory as claimed andpointed out by the assessee. The Court held that fromperusal of sub-section (6A), two things are necessary. Thefirst requirement is that the statement of accounts for theprevious year relevant to the assessment year for whichdeduction is claimed must have been audited by anaccountant and the second requirement is that theassessee must furnish along with his return of income thereport of such audit in the prescribed form duly signed andverified by such accountant. The former requirement,according to the Court relates to furnishing substantialfoundation for claiming allowance and the later is therequirement of furnishing proof that foundation forclaiming such deduction has been laid. Therefore, theformer was held to be mandatory whereas the later was considered directory being in the realm of procedural law.This Court in the aforesaid decision has observed and heldthus: “From a perusal of sub-section (6A), it isapparent that compliance with two things isnecessary. The first requirement is that thestatement of accounts for the previous yearrelevant to the assessment year for whichdeduction is claimed must have beenaudited by an accountant and the secondpart is that the assessee must furnish alongwith his return of income the report of suchaudit in the prescribed form duly signed andverified by such accountant. It can be statedwithout fear of contradiction that the formeris the requirement which furnishessubstantialfoundationforclaimingallowance and the latter is the requirementof furnishing proof that foundation forclaiming such deduction has been laid. Inour opinion, while compliance with theformer before the deduction is claimed ismandatory and so far as manner ofsubmitting proof of such compliance of filingalong with the return is concerned, isdirectory because such requirement falls inthe realm of procedure for furnishingevidence in support of the claim and whichcan be furnished at the time while allowanceor disallowance under section 80J is beingconsidered by the concerned authority. This court in the case of CIT v. GujaratOil and Allied Industries [1993] 201 ITR 325,had an occasion to consider the very sameprovision. The court held the provision offurnishing the auditor's report in theprescribed form along with the return to bedirectory adopting the view of the AllahabadHigh Court in Addl. CIT v. MurlidharMathura Prasad [1979] 118 ITR 392 and thePatna High Court in the case of CIT v.Sitaram Bhagwandas [1976] 102 ITR 560 ininterpreting the phrase "along with"appearing in section 184(7). The court opinedthat merely because the auditor's report hasnot physically accompanied the return, itcannot be said that it cannot be processedon the merits for deciding the claim ofdeduction under section 80J(1) of the Actwhen the Income-tax Officer sits down forframing the assessment on the merits. It isthe only stage at which all the requirementsof section 80J(1) of the Act read with subsection (6A) thereof are to be ascertained. Inour view, the aforesaid reasoning of theAllahabad High Court and the Patna HighCourt would squarely apply to the facts ofthe present case. The provision aboutfurnishing of the auditors' report along withthe return has to be treated as a proceduralprovision, directory in nature, and substantial compliance should suffice. In view of the aforesaid discussion,question No. 2 referred to above is to beanswered in the negative by holding that theprovision of section 80J(6A) to the extent itrequires furnishing of the auditor's report inthe prescribed form along with the return isdirectory in nature and not mandatory.” This Court in the aforesaid decision also consideredthe decision of Patna High Court in the case of CIT vs.Sitaram Bhagwandas, reported in [1976] 102 ITR 560. 9.At the outset, we need to consider the decision ofMadras High Court rendered in the case of Commissionerof Income-tax versus AKS Alloys (P) Ltd. reported in[(2012) 18 taxmann.com 25 (Mad.). That was the case ofclaim of deduction under section 80IB where the assesseedid not file audit report in Form 10CCB along with thereturn of income but filed the same beyond completion ofassessment. The Court was examining substantial questionof law as to whether the tribunal was right in holding thatthe assessee was entitled to claim deduction under section80IB in respect of the unit at Pondicherry even though theassessee did not comply with the mandatory provisions forfiling audit report in Form 10CCB in support of the claimas stipulated in section 80IB(13) r.w.s. 80IA(7) of the Act.The Court, ultimately observed that it was enough if theaudit report was submitted before the assessment wascompleted. The assessee company which was engaged in the business of manufacture of steel ingots filed return andorder of assessmenet under Sec. 143(3) of the I.T. Act waspassed where the A.O. disallowed the claim of the assesseemade under Section 80IB of the Act and also made additionof huge amount as unexplained credit, under Section 68 ofthe I.T. Act, on the ground that for the purpose of claimingdeduction, the assessee did not file certificate in Form10CCB of the Act along with the return of income and thesame was filed later. The appeal was allowed granting theclaim of the assessee made under Section 801B of the Act.The revenue preferred appeal before the Appellate Tribunal,which also came to be dismissed against which revenueapproached the High Court of Madras under the impugnedorder and the Court considered whether filing of the auditreport under section 10CCB in support of the claim asstipulated in section 80IB(13) r.w.s.80IA(7) of the I.T. Act,was mandatory. While answering the same, it referred tovarious decisions and held that before the assessment iscompleted, declaration could be filed. Paragraph Nos.5, 6and 7 of the aforesaid decision in the case of AKS Alloys(P) Ltd (supra) read thus: “5. In so far as it relates to the substantialquestion of law (1) is concerned, namely,whether the filing of report in Form 10CCB ismandatory, it is well settled by a number ofjudicial precedents that before theassessment is completed, the declarationcould be filed. In fact, the said issue came tobe decided by the Karnataka High Court inthe case in CITV. ACE Multitates Systems (P)LTD [2009] 317 ITR 207 (Kar), wherein itquestion of law (1) is concerned, namely,whether the filing of report in Form 10CCB ismandatory, it is well settled by a number ofjudicial precedents that before theassessment is completed, the declarationcould be filed. In fact, the said issue came tobe decided by the Karnataka High Court inthe case in CITV. ACE Multitates Systems (P)LTD [2009] 317 ITR 207 (Kar), wherein it was held that when a relief is sought forunder Section 801B of the Act, there is noobligation on the part of the assessee to filereturn accompanied by the audit report,thereby. holding that the same is notmandatory. Therefore, it is clear that beforethe assessment is completed if such report isfiled, no fault could be found against theassessee. That was also the view of theDelhi High Court in the case in CIT v.Contimeters Electricals (P.) Ltd. [2009] 217ITR 249/ 178 Taxman 422 (Delhi), whereinthe Delhi High Court, by following thejudgements of the Madras High Court in CITv. A.N. Arunachalam [1994] 208 ITR 481/75Tasman 529 and in CIT v. Jayant Patel[2001] 248 ITR 199 117 Taxman 707 (Mad.)held that the filing of audit report along withthe return was not mandatory but directoryand that if the audit report was filed at anytime before the framing of the assessment,the requirement of the provisions of the Actshould be held to have been met. 6. That is also the consistent view of theother High Courts, including the High Courtof Bombay in CIT v. Shivanand Electronics[1994] 209 ITR 63/75 Tasman 93 (Bom.),apart from Gujarat High Court in ZenithProcessing Mills v. C7711996] 219 ITR 721(Guj.) and Punjab and Haryana High Court in CIT v. Mahalaxmi Rice Factory [20071294 ITR 531/ 163 Taxman 565 (Punj. &Har). 7. The Calcutta High Court in the casein the CIT v. Berger Paints (India) Ltd. [2002]254 (TR 503/12003) 126 Taxman 435 (Cal.)has also concurred with the said view whichwas followed by the Tribunal in this case.” The aforesaid decision had been challenged before theApex Court in in a group of matters, reported in [(2015)376 ITR 456 SC] where the Apex Court held that even ifForm 3AA was not filed along with return of income but thesame was filed during the assessment proceedings andbefore the final order of the assessment was made, thatwould amount to sufficient compliance. 10.This Court in the case of Sarvodaya CharitableTrust vs. Income Tax Officer (Exemption), reported in[2021] 125 taxmann.com 75 (Gujarat) was consideringthe very issue where the assessee had not furnished theaudit report in Form 10B and A.O., therefore, denied theexemption to assessee Trust. The said report in form of 10Bfiled belatedly and the assessee sought to condone suchdelay, which was rejected on the ground that no groundswere made out. The Court held that when legislature hadconferred wide discretionary powers to condone such delayon authorities concerned, the assessee could not be deniedsuch exemption merely on the bar of limitation to submitForm 10B. This Court also relied on various decisions tohold that the approach in the cases of the present typeshould be equitious, balancing and judicious. Technically, strictly and liberally speaking, the respondent no.2 mightbe justified in denying the exemption under Section 12 ofthe Act by rejecting such condonation application, but anassessee, a public charitable trust past 30 years whosubstantially satisfies the condition for availing suchexemption, should not be denied the same merely on thebar of limitation especially when the legislature hasconferred wide discretionary powers to condone such delayon the authorities concerned. It has also referred to the decision rendered in thecase of CIT vs. Gujarat Oil and Allied Industries Ltd.,reported in [1993] 201 ITR 325 (Gujarat) to hold thatfurnishing of audit report with the return has to be treatedprocedural proviso which is directory in nature and if theassessee had not produced audit report along with thereturn of income, but had produced before completion ofassessment, it should be considered as substantialcompliance and the benefits of exemption should not bedenied merely on the delay in furnishing the same. This Court in the aforesaid decision in the case of CITVs. Gujarat Oil and Allied Industries Ltd. (supra) in para31 and 32 has observed and held thus: “31. Having given our due consideration toall the relevant aspects of the matter, we areof the view that the approach in the cases ofthe present type should be equitious,balancing and judicious. Technically, strictlyand liberally speaking, the respondent no.2 might be justified in denying the exemptionunder Section 12 of the Act by rejecting suchcondonation application, but an assessee, apublic charitable trust past 30 years whosubstantially satisfies the condition foravailing such exemption, should not bedenied the same merely on the bar oflimitation especially when the legislaturehas conferred wide discretionary powers tocondone such delay on the authoritiesconcerned. 32. We may also refer to the decision of thisCourt in CIT v. Gujarat Oil and AlliedIndustries Limited, (1993) 201 ITR 325(Gujarat), wherein it is held that theprovision regarding furnishing of audit reportwith the return has to be treated as aprocedural proviso. It is directory in natureand its substantial compliance wouldsuffice. In that case, the assessee had notproduced the audit report along with thereturn of income but produced the samebefore the completion of the assessment.This Court took the view that the benefit ofexemption should not be denied merely onaccount of delay in furnishing the same andit is permissible for the assessee to producethe audit report at a later stage either beorethe Income Tax Officer or before theappellate authority by assigning sufficient cause. 33. In view of the above, this writ-application succeeds and is hereby allowed.The impugned order passed by therespondent no.2 dated 19th August 2019(Annexure-A to this writ-application) ishereby quashed and set-aside. Theimpugned rectification order at page-13 ofthe paper-book dated 12th February 2020 isalso hereby quashed and set-aside. Thedelay condonation application filed by thewrit-applicant before the respondent no.2 ishereby allowed.” cause. 33. In view of the above, this writ-application succeeds and is hereby allowed.The impugned order passed by therespondent no.2 dated 19th August 2019(Annexure-A to this writ-application) ishereby quashed and set-aside. Theimpugned rectification order at page-13 ofthe paper-book dated 12th February 2020 isalso hereby quashed and set-aside. Thedelay condonation application filed by thewrit-applicant before the respondent no.2 ishereby allowed.” 11.In light of the discussion above, on turning to theimpugned order passed by the respondent it is noticed thatthe assessee had filed the original return of income for theyear under consideration on 30.10.2017 within stipulatedtime period and claimed deduction under section u/s.80ICamounting to Rs.3,34,92,234/-. The first deduction wastaken by the petitioner on 08.03.2010 for the businessesstarted in Himachal Pradesh and Uttarachal States. Therevised return was filed on 12.02.2018. The ACIT, Circle3(1) issued notice on 20.08.2019 for communication ofproposed adjustment u/s. 143(1)(a) of the I.T. Actmentioning that due date of filing the I.T. return was07.11.2017 and the Form No.10CCB had to be filed alongwith the return of income within the due date which is07.11.2017 whereas the same was filed on 12.09.2018. Italso took note of the fact that CPC vide letter dated23.07.2018 communicated to the assessee about thedecision under section 141(1)(a)(ii) for disallowance of deduction claimed under section 80IC/80IE as Form10CCB had not been e-filed within the due date. It is hissay that on 29.05.2019, the assessee had requested thejurisdictional AO that when the assessee had filed itsreturn of income within stipulated time, though the Form10CCB was filed on 12.09.2018, the question ofdisallowance of deduction would not arise. Thus, theassessee’s plea was for revision of order made by the CPCon 23.07.2019 on the ground that the revision applicationought to have been filed within one year u/s.264 i.e. before23.07.2019 and the same was filed on 05.03.2020. It isfurther its say that an opportunity of being heard wasgiven vide letter dated 05.03.2021 to submit reply, if any,which he did not avail and it was presumed that thepetitioner had nothing to offer and on the ground of this forwant of any ground which prevented him to file the revisionwithin stipulated time, the revision application came to berejected, which according to this Court is erroneous. Whenin light of the various decisions, which have been discussedby this Court, there is no requirement to file Form 10CCBalong with the return which had been filed by the assesseewith original return on 30.10.2017 and revised return wasfiled on 12.02.2018 and Form 10CCB was filed on12.09.2018. 12.It would be apt to refer to section 143 of the I.T. Act: “Assessment. 143. (1) Where a return has been made under section139, or in response to a notice under sub-section (1) of section 142, such return shall be processed in thefollowing manner, namely:— (a) the total income or loss shall be computed aftermaking the following adjustments, namely:— (i) any arithmetical error in the return; [***] (ii) an incorrect claim, if such incorrect claim isapparent from any information in the return; [(iii) disallowance of loss claimed, if return of theprevious year for which set off of loss is claimedwas furnished beyond the due date specifiedunder sub-section (1) of section 139; (iv) disallowance of expenditure indicated in theaudit report but not taken into account incomputing the total income in the return; (v) disallowance of deduction claimed under anyof the provision of Chapter VIA under the heading“C - deduction in respect of income” if the return isfurnished beyond the due date specified under orsub-section (1) of section 139; (i) any arithmetical error in the return; [***] (ii) an incorrect claim, if such incorrect claim isapparent from any information in the return; [(iii) disallowance of loss claimed, if return of theprevious year for which set off of loss is claimedwas furnished beyond the due date specifiedunder sub-section (1) of section 139; (iv) disallowance of expenditure indicated in theaudit report but not taken into account incomputing the total income in the return; (v) disallowance of deduction claimed under anyof the provision of Chapter VIA under the heading“C - deduction in respect of income” if the return isfurnished beyond the due date specified under orsub-section (1) of section 139; (vi) addition of income appearing in Form 26AS orForm 16A or Form 16 which has not been includedin computing the total income in the return: Provided that no such adjustments shall bemade unless an intimation is given to the assesseeof such adjustments either in writing or inelectronic mode: Provided further that the response receivedfrom the assessee, if any, shall be consideredbefore making any adjustment, and in a casewhere no response is received within thirty daysof the issue of such intimation, such adjustmentsshall be made:] [Provided also that no adjustment shall be madeunder sub-clause (vi) in relation to a returnfurnished for the assessment year commencing onor after the 1st day of April, 2018;] (b) the tax [interest and fee], if any, shall becomputed on the basis of the total incomecomputed under clause (a); (c) the sum payable by, or the amount of refunddue to, the assessee shall be determined afteradjustment of the tax [interest and fee], if any,computed under clause (b) by any tax deducted atsource, any tax collected at source, any advancesection 89 ortax paid, any relief allowable under or any relief allowable under an agreement undersection 90 or section 90A or any relief allowableunder section 91, any rebate allowable under PartA of Chapter VIII, any tax paid on self-assessmentand any amount paid otherwise by way of tax[interest or fee]; (d) an intimation shall be prepared or generatedand sent to the assessee specifying the sumdetermined to be payable by, or the amount ofrefund due to, the assessee under clause (c); and(e) the amount of refund due to the assessee inpursuance of the determination under clause (c)shall be granted to the assessee: Provided that an intimation shall also be sent tothe assessee in a case where the loss declared inthe return by the assessee is adjusted but no tax[interest or fee] is payable by, or no refund is dueto, him: Provided further that no intimation under thissub-section shall be sent after the expiry of ninemonths from the end of the financial year inwhich the return is made. Explanation.—For the purposes of this sub-section,— (a) "an incorrect claim apparent from any informationin the return" shall mean a claim, on the basis of anentry, in the return,— (i) of an item, which is inconsistent with anotherentry of the same or some other item in suchreturn; (ii) in respect of which the information required tobe furnished under this Act to substantiate suchentry has not been so furnished; or (iii) in respect of a deduction, where suchdeduction exceeds specified statutory limit whichmay have been expressed as monetary amount orpercentage or ratio or fraction; (b) the acknowledgement of the return shall bedeemed to be the intimation in a case where no sum ispayable by, or refundable to, the assessee underclause (c), and where no adjustment has been madeunder clause (a). (1A) For the purposes of processing of returns undersub-section (1), the Board may make a scheme forcentralized processing of returns with a view toexpeditiously determining the tax payable by, or therefund due to, the assessee as required under the saidsub-section. (iii) in respect of a deduction, where suchdeduction exceeds specified statutory limit whichmay have been expressed as monetary amount orpercentage or ratio or fraction; (b) the acknowledgement of the return shall bedeemed to be the intimation in a case where no sum ispayable by, or refundable to, the assessee underclause (c), and where no adjustment has been madeunder clause (a). (1A) For the purposes of processing of returns undersub-section (1), the Board may make a scheme forcentralized processing of returns with a view toexpeditiously determining the tax payable by, or therefund due to, the assessee as required under the saidsub-section. (1B) Save as otherwise expressly provided, for thepurpose of giving effect to the scheme made under sub-section (1A), the Central Government may, bynotification in the Official Gazette, direct that any of the provisions of this Act relating to processing of returnsshall not apply or shall apply with such exceptions,modifications and adaptations as may be specified inthat notification; so, however, that no direction shall beissued after the 31st day of March, 2012. (1C) Every notification issued under sub-section (1B),along with the scheme made under sub-section (1A),shall, as soon as may be after the notification isissued, be laid before each House of Parliament. [(1D) Notwithstanding anything contained in sub-section (1), the processing of a return shall not benecessary, where a notice has been issued to theassessee under sub-section (2): Provided that the provisions of this sub-section shallnot apply to any return furnished for the assessmentyear commencing on or after the 1st day of April, 2017.](2) Where a return has been furnished under section139, or in response to a notice under sub-section (1) ofsection 142, the Assessing Officer or the prescribedincome-tax authority, as the case may be, if, considersit necessary or expedient to ensure that the assesseehas not understated the income or has not computedexcessive loss or has not under-paid the tax in anymanner, shall serve on the assessee a notice requiring him, on a date to be specified therein, either to attendthe office of the Assessing Officer or to produce, orcause to be produced before the Assessing Officer anyevidence on which the assessee may rely in support ofthe return: Provided that no notice under this sub-section shallbe served on the assessee after the expiry of threemonths from the end of the financial year in which thereturn is furnished.]” 12.1.Proviso (2) of section 143 states that where areturn has been furnished under section 139, or inresponse to a notice under sub-section (1) of section 142,the A.O. or the prescribed income-tax authority, as the casemay be, if, considers it necessary or expedient to ensurethat the assessee has not understated the income or hasnot computed excessive loss or has not under-paid the taxin any manner, shall serve upon the assessee a noticerequiring him, on a date to be specified therein, either toattend the office of the Assessing Officer or to produce, orcause to be produced before the A.O. any evidence onwhich the assessee may rely in support of the return. Theproviso to this section says that no notice under this sub-section shall be served on the assessee after the expiry ofthree months from the end of the financial year in whichthe return is furnished. 13.As could be noticed from the averments and the 13.As could be noticed from the averments and the various documents which have been brought on record thatrevision application came to be rejected on 12.02.2018.The CBC communicated the rejection of claim undersection 80IC/80IE on the ground that Form 10CCB has notbeen e-filed within the due date. The communication of theCBC is of 23.07.2018, according to which, the rejection ofthe application of the petitioner is solely on the groundthat the application was filed at a belated stage without anysufficiency of the cause being presented to the officerconcerned, there appears to be no delay in preferring theapplication. The revision of decision of the A.O. dated20.08.2019 had been sought by the petitioner where theA.O. rejected his claim for non-filing of the Form 10CCBwithin due date. It is necessary to make a mention thatbefore the assessment was finalized, Form 10CCB wasalready filed by the petitioner and therefore, it would notbe feasible for us to sustain the order on the ground ofdelay. 13.1.Moreover, as has been discussed hereinabove,the court has been quite emphatic that furnishing of Form10CCB is a procedural requirement which need not to bedone along with the return and here admittedly it has beenfiled prior to the assessment having been completed by theA.O.. Technicalities should not mar the substantial justice.Balancing the entire issue in wake of the various decisionswhich have been discussed hereinabove, we are of theopinion that the application filed by the petitioner undersection 264(3) and denial on the ground of the same beingbarred by period of 12 months, deserves indulgence. 14.The Court also cannot be oblivious to the factthat the petitioner is entitled to claim benefit under section80IC since 08.03.2010, on which the first deduction wastaken and it has continued to claim under the veryprovision and therefore by indulging into the notice ofdemand u/s.156 along with the intimation under section143(1), the petition deserves to be allowed to an extent thatthe impugned order dated 19.03.2021 is quashed. 14.1.Let the case of the petitioner herein beconsidered on merits by the officer concerned. 14.2.The petitioner will be entitled to seek exemptionand the authority concerned is directed to consider suchclaim of exemption and pass consequential order, whichwill be subject to provision of section 142 of the I.T. Act. 14.3.Liberty is reserved in favour of the petitioner tomake an application afresh. 14.4.The demand notice issued u/s.156 of the I.T. Actshall remain suspended till this claim of the assessee isdetermined and the powers are exercised under section 264of the I.T. Act. (SONIA GOKANI, J) R.H. PARMAR. (RAJENDRA M. SAREEN,J)