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2019 Supreme(Bom) 2422
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Akil Kureshi, S.J. Kathawalla, JJ.
Ebr Enterprises & Anr. - Appellants
Versus
Union Of India & Anr. - Respondents
Writ Petition No. 1415 of 2019
Decided On : 04-06-2019
Mr. Naresh Jain a/w. Ms. Aarti Agarwal, Ms. Neha Anchilia i/b. Agrud Partners, Advocates, for the Appellant; Mr. N.C.Mohanthy, Advocate, for the Respondent
Headnote:
Constitution of India,1950 - Article 226 - Income Tax Act, 1961 - Section 264, 80A(5) and 80-IB (10) - Income Tax - Return of income - Claimed deduction - Petitioner No.1 is an Association of Persons (AOP) and is regularly assessed to tax as such - For assessment year said Petitioner had filed a return of income on declaring total income - During period relevant to said assessment year Petitioners had carried out activities of development of housing projects - However, for income arising out of said business, Petitioners had not claimed deduction under Section 80-IB (10) of Income Tax Act, 1961 in return of income - Return of income was taken in scrutiny by Assessing Officer, who passed order of assessment under Section 143 (3) of Act - In such Revision Application, Petitioners raised claim of deduction under Section 80-IB (10) of Act - Since Revision Application was filed by Petitioners beyond normal period of limitation prescribed under statue , Whether such over assessment is due to a mistake detected by assess after completion of assessment or otherwise - Held, In absence of provision contained in Sub Section (5) of Section 80A of Act has held by various decisions of High Courts noted - Provision contained in sub-section (5) of Section 80A is a statutory interdict which would prevent CIT from granting any such claim in exercise of his re-visional jurisdiction under Section 264 of Act - As is often times stated, even High Court in exercise of Writ jurisdiction under Article 226 of Constitution of India would not issue directions contrary to statutory provisions - Width of powers of CIT under Section 264 of Act would not permit him to ignore requirement of Section 80A(5) of Act or allow claim of an assess in breach of condition contained therein - Petitioners having given up challenge to constitutionality of retrospectivity to Section 80A (5) of Act, cannot bring in the concept of reading down of provision in order to save if from unconstitutionally - In plain terms, Court duty would be to enforce provision contained in Sub Section (5) of Section 80A of Act, as it is stands in statue book - Decision in case of Goetze ( India ) Limited (supra) was rendered in different background - Writ Petition is dismissed.
JUDGMENT
Akil Kureshi, J. - Petitioners have made following prayers :
(a) This Hon''ble Court be pleased to issue Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or Direction under Article 226 of the Constitution of India, ordering and directing Respondent No. 2 to consider the claim under Section 80-IB (10) of the Income Tax Act,1961 on merits under section 264 of the Income Tax Act, 1961 and not rejecting the same solely on account of section 80A(5) of the Income Tax Act, 1961.
(b) This Hon''ble Court be pleased to declare the retrospective introduction of section 80A (5) of the Income Tax Act, 1961, as unconstitutional".
2. Brief facts are, as under:
2.1. Petitioner No.1 is an Association of Persons (AOP) and is regularly assessed to tax as such. For the assessment year 2008-09, the said Petitioner had filed a return of income on 30th September, 2008 declaring total income of Rs. 7,57,27,294/-. During the period relevant to the said assessment year the Petitioners had carried out activities of development of housing projects. However, for the income arising out of the said business, the Petitioners had not claimed deduction under Section 80-IB (10) of the Income Tax Act, 1961 (for short ''the Act'') in the return of income. The return of income was taken in scrutiny by the Assessing Officer, who passed the order of assessment under Section 143 (3) of the Act on 21st December, 2010. Obviously, since the Petitioners had not raised any claim of deduction under Section 80-IB of the Act, no such claim came up for consideration before the Assessing Officer during the scrutiny assessment proceedings.
2.2. The Petitioners filed the Revision Application before the Commissioner of Income Tax (for short ''CIT'') under Section 264 of the Act against the order of the assessment. In such Revision Application, the Petitioners raised the claim of deduction under Section 80-IB (10) of the Act. Since the Revision Application was filed by the Petitioners beyond the normal period of limitation prescribed under the statue, the Petitioners also prayed for condoning delay in filing the Revision Application. The Commissioner refused to condone delay. Upon which, the Petitioners filed Writ Petition No. 6287 of 2015 and Writ Petition No. 8955 of 2015. These Writ Petitions were disposed off by this Court by an Order dated 6th November, 2017. This Court directed the condonation of delay and ordered the CIT to decide the Revision Application on merits.
2.3. The CIT passed the Order on 20th March, 2018, which is impugned in this Writ Petition. By such Order, the CIT rejected the Revision Application of the Petitioners. He was of the opinion that since the Petitioners had not made a claim under Section 80-IB (10) of the Act in the return of income, by virtue of Section 80-A (5) of the Act, the claim cannot be granted.
3. The prayers made by the Petitioners in the Writ Petition, which have reproduced here in above, are in two parts. One part challenges the retrospective operation of Sub Section (5) of Section 80A of the Act. The learned Counsel for the Petitioners at the outset stated that the Petitioners do not press this challenge. We have therefore proceeded on such basis. Second part of the Petitioners'' prayer though worded some what differently, it challenges the Revisional Order of the CIT. In this context, the Counsel for the Petitioners raised the following contentions :
3.1. The restriction imposed by Section 80-A (5) of the Act, would apply only to the powers of the Assessing Officer and not to the CIT in exercise of re-visional powers.
3.2. Applying the conditions of Section 80A (5) of the Act in the present case, would amount to expecting the Petitioners to perform the impossible task.
3.3. Counsel submitted that the provisions should be considered in such a manner as to save it from vice of unconstitutionality. Looked from this angle, Sub Section (5) of Section 80-A of the Act, cannot be applied with
