Rathna Stores (Firm), CHENNAI V. DCIT, CHENNAI

CO 195/CHNY/2016

• Counselvise Citation: [2018] 112 COUNSELVISE.COM (IT) 5605 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 20-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R K V SUNDAR
• Keywords: Right to appeal
• Section: 148; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: CHENNAI , , # BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NOS.2576 TO2578/MDS/2016 /ASSESSMENT YEARS: 2010-11 TO 2012-13 M/S.RATHNA STORES (FIRM), NO.19, DEENADAYAL STREET, T.NAGAR, CHENNAI-600 017. [PAN: AAAFR 0743 F] VS. THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. ( % /APPELLANT) ( &'% /RESPONDENT) ./ ITA NOS.2640 TO2645/MDS/2016 /ASSESSMENT YEARS: 2007-08 TO 2012-13 THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. VS. M/S.RATHNA STORES (FIRM), NO.19, DEENADAYAL STREET, T.NAGAR, CHENNAI-600 017. [PAN: AAAFR 0743 F] ( % /APPELLANT) ( &'% /RESPONDENT) CO NOS.190 TO 195/MDS/2016 (IN ITA NOS.2640 TO 2645/MDS/2016 /ASSESSMENT YEARS: 2007-08 TO 2012-13 M/S.RATHNA STORES (FIRM), NO.19, DEENADAYAL STREET, T.NAGAR, CHENNAI-600 017. [PAN: AAAFR 0743 F] VS. THE DY. COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE-2, CHENNAI. ITA NOS.2576 TO 2578/MDS/2016 ITA NOS.2640 TO 2645/MDS/2016 CO NOS.190 TO 195/MDS/2016 :- 2 -: ( % /APPELLANT) ( &'% /RESPONDENT) ASSESSEE BY : SHRI. R.K.V. SUNDAR, ADVOCATE DEPARTMENT BY : SHRI. AR V SREENIVASAN, JCIT ) /DATE OF HEARING : 16.11.2018 ) /DATE OF PRONOUNCEMENT : 16.11.2018 / O R D E R PER S. JAYARAMAN, ACCOUNTANT MEMBER : IN VIEW OF THE DECISION OF THE HONBLE THIRD MEMBE R, WHEREIN, THE HONBLE THIRD MEMBER HAS HELD AS FOLLOWS: 11. HAVING CAREFULLY PERUSED THIS CLAUSE 4 OF SECT ION 249, I FIND THAT ONCE THE RETURN IS FILED, THE ASSESSEE IS BOUN D TO PAY THE TAX DUE ON THE RETURNED INCOME BEFORE FILING THE APPEAL BEFORE THE CIT(A). IF HE DOES NOT PAY THE TAX, APPEAL FILED BY IT WOULD NOT BE ADMITTED BY THE CIT(A). IN THE INSTANT CASE, UNDISP UTEDLY, THE ASSESSEE HAS FILED THE RETURN OF INCOME THOUGH NOT WITHIN THE PERIOD PRESCRIBED IN THE NOTICE ISSUED UNDER SECTIO N 148 OF THE ACT AND HAS NOT PAID THE TAX ON THE RETURNED INCOME WHI LE FILING AN APPEAL BEFORE THE CIT(A). MOREOVER, IN SECTION 249( 4) THERE IS NO REFERENCE OF VALID OR INVALID RETURN. IT TALKS ABOU T THE RETURN FILED BY THE ASSESSEE. AS PER PROVISIONS OF SECTION 139 OF T HE ACT, ASSESSEE IS REQUIRED TO FILE THE RETURN OF INCOME BEFORE A P ARTICULAR DATE. ONCE THE RETURN IS FILED THE AO HAS TO TAKE COGNIZA NCE OF THE SAME AND IF ANY DEFECTS ARE THERE, HE HAS TO ISSUE A DEF ECT MEMO TO THE ASSESSEE AND IF DEFECTS ARE NOT REMOVED DESPITE AFF ORDING OPPORTUNITY TO THE ASSESSEE, THE AO MAY DECLARE THE RETURN TO BE INVALID RETURN. UNDER THESE CIRCUMSTANCES, I AM OF THE VIEW THAT ITA NOS.2576 TO 2578/MDS/2016 ITA NOS.2640 TO 2645/MDS/2016 CO NOS.190 TO 195/MDS/2016 :- 3 -: SECTION 249(4), TALKS ABOUT THE FILING OF RETURN. I T DOES NOT TALK ABOUT VALID OR INVALID RETURNS. ONCE THE RETURNS AR E FILED, PROVISIONS OF SECTION 249(4) ARE TO BE APPLIED AND AS PER ITS CLAUSE, ASSESSEE IS REQUIRED TO PAY THE TAXES DUE ON THE RETURNED IN COME. IF HE FAILS TO DO SO, THE CIT(A) MAY NOT ADMIT THE APPEAL OF TH E ASSESSEE. THOUGH I AM NOT SUPPOSED TO GIVE A FINDING IN THIS REGARD AS THE QUESTION REFERRED BEFORE ME IS ONLY WITH REGARD TO VALIDITY OF RETURN FILED BEYOND THE PERIOD PRESCRIBED IN THE NOTICE IS SUED UNDER SECTION 148 OF THE ACT. IN THAT REGARD, 1 AM OF THE VIEW THAT ANY RETURN FILED IN RESPONSE TO NOTICE ISSUED UNDER SEC TION 148 WHETHER IT MAY BE IN TIME OR BELATED, IT IS A VALID RETURN UNLESS AND UNTIL THE AO DECLARE THE SAME TO BE INVALID RETURN BY PASSING A SPECIFIC ORDER UNDER SECTION 139(9) OF THE ACT. IN THE INSTANT CAS E, SINCE THE AO HAS NOT PASSED ANY ORDER UNDER SECTION 139(9) DECLA RING THE RETURN FILED BY THE ASSESSEE BEYOND THE SPECIFIED PERIOD T O BE INVALID RETURN, THE RETURN FILED IN RESPONSE TO SECTION 148 IS A VALID RETURN. ACCORDINGLY, I HOLD THAT THE RETURN FILED IN RESPON SE TO NOTICE ISSUED U/S 148 BEYOND THE PRESCRIBED PERIOD IS NOT AN INVA LID RETURN. 2. IT IS HELD THAT THE RETURNS FILED BY THE ASSESSE E IN RESPONSE TO THE NOTICES ISSUED U/S. 148 ARE VALID RETURNS. THE ASS ESSEE HAS NOT PAID THE TAX LIABILITY COMPUTED ON THE ADMITTED INCOME FOR A LL THE ASSESSMENTS YEARS UNDER APPEAL AND THE SAME REMAINS UNPAID EVEN AS ON DATE OF THE IMPUGNED APPEALS BEFORE THE LD. CIT(A). THE ASSESS EE DOES NOT POSSESS INHERENT RIGHT OF APPEAL BEFORE THE LD. CIT(A) AGAI NST THE IMPUGNED ASSESSMENT YEARS, WHEN THE ASSESSEE HAS FAILED TO R EMIT THE TAXES DUE ON THE ADMITTED INCOME FOR ALL THE ASSESSMENT YEARS UNDER APPEAL. ITA NOS.2576 TO 2578/MDS/2016 ITA NOS.2640 TO 2645/MDS/2016 CO NOS.190 TO 195/MDS/2016 :- 4 -: CONSEQUENTLY, THE IMPUGNED ORDERS OF THE LD. CIT(A) BEING ERRONEOUS, THE SAME ARE HELD AS NONEST. 3. IN THE RESULT, THE REVENUES APPEALS IN ITA NOS. 2640 TO 2645/MDS/2016 FOR THE ASSESSMENT YEARS 2007-08 TO 2 012-13 ARE ALLOWED. CONSEQUENTLY, THE ASSESSEES APPEALS IN I TA NOS. 2576 TO 2578/MDS/2016 FOR ASSESSMENT YEARS 2010-11 TO 2012- 13 AND CROSS OBJECTIONS IN CO NOS. 190 TO 195/MDS/2016 IN ITA NO S. 2640 TO 2645/MDS/2016 FOR THE ASSESSMENT YEARS 2007-08 TO 2 012-13 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH NOVEMBER, 2018, AT CHENNAI. SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER SD/- ( ) (S. JAYARAMAN) /ACCOUNTANT MEMBER /CHENNAI, . /DATED: 16 TH NOVEMBER, 2018 JPV )&/010 /COPY TO: 1. %/ APPELLANT 2. &'% /RESPONDENT 3. 3 ) (/CIT(A) 4. 3 /CIT 5. 0& /DR 6. /GF