G.Narasiman, Erode V. ITO, Coimbatore

ITA 1000/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5955 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-10-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2012-2013
• Appeal Filed On: 24-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHISH TRIPATHI JT
• Assessee Lawyers: S SRIDHAR
• Keywords: Principle of natural justice; Question of law; Assessment record; Revised return
• Section: 143(3); 139(5); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C, CHENNAI , ! ' . #$ , % &' ( BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER ./ITA NO.1000/MDS/2017 % ) *) / ASSESSMENT YEAR : 2012-13 G.NARASIMAN, C/O. S.SRIDHAR, ADVOCATE, 112/1, PERIYAR STREET, ERODE 638 001. [PAN: ABPPN 6573S] VS. INCOME TAX OFFICER, NON-CORPORATE WARD-2(4), COIMBATORE. ( /APPELLANT ) ( / RESPONDENT ) +, . / / APPELLANT BY : SHRI S.SRIDHAR, ADVOCATE 01+, . / / RESPONDENT BY : SHRI ASHISH TRIPATHI, JT. CIT . 2 / DATE OF HEARING : 26.07.2017 3* . 2 / DATE OF PRONOUNCEMENT : 13.10.2017 /ORDER PER SANJAY ARORA, AM : THIS IS AN APPEAL BY THE ASSESSEE AGITATING THE OR DER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, COIMBATORE (CIT(A) FOR SHORT) DATED 28.02.2017, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASS ESSMENT U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR TH E ASSESSMENT YEAR (AY) 2012-13 VIDE ORDER DATED 25.03.2015. 2. THE SHORT QUESTION ARISING IN THIS APPEAL IS WHE THER THE REVISED RETURN FURNISHED BY THE ASSESSEE ON 21.10.2013 IS A VALID RETURN IN LAW. THIS IS FOR THE 2 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO REASON THAT THE IMPUGNED ASSESSMENT WAS MADE ONLY I N PURSUANCE THERETO, BY ISSUE OF NOTICE U/S. 143(2) ON 08.09.2014. IT MAY B E RELEVANT TO, BEFORE WE PROCEED TO DISCUSS THE ISSUE ARISING, STATE THE BAC KGROUND FACTS OF THE CASE, WHICH ARE ADMITTED AND UNDISPUTED. THE ASSESSEE-IND IVIDUAL FILED HIS RETURN OF INCOME FOR THE YEAR ON 29.09.2012, DECLARING NIL IN COME (COPY ON RECORD). THIS WAS FOLLOWED BY A RETURN ON 21.10.2013 (COPY OF ACK NOWLEDGMENT ON RECORD), AGAIN, AT NIL INCOME, CLAIMING A TAX REFUND ON ACCO UNT OF TAX DEDUCTED AT SOURCE (TDS) AT . 92,724; THERE BEING, AS IT APPEARS, NO CHANGE IN THE CONFIGURATION OF THE INCOME RETURNED. ASSESSMENT U/S. 143(3) WAS FRA MED ON 25.03.2015 AT A INCOME OF . 1,37,99,763/-. THE ASSESSEE, IN APPEAL, RAISED SE VERAL GROUNDS, CHALLENGING THE ADDITIONS MADE IN ASSESSMENT. ADDIT IONAL GROUNDS WERE ALSO RAISED, CLAIMING THAT THE IMPUGNED ASSESSMENT IS LI ABLE TO BE QUASHED AS THE ORIGINAL RETURN, FILED ON 29.09.2012, WAS NOT A R ETURN U/S. 139(1) BUT ONLY A RETURN U/S. 139(4), BEING FILED AFTER THE DUE DATE OF FILING THE RETURN U/S. 139(1) I.E., ON 31.07.2012 (ADDL. GD.1 ). ONLY A RETURN FILED U/S. 139(1) OR THAT FURNISHE D IN RESPONSE TO A NOTICE U/S. 142(1), COULD BE REVIS ED U/S. 139(5). THE SUBSEQUENT RETURN FILED ON 21.10.2013 IS, THEREFORE, AN INVALI D RETURN. THAT BEING THE CASE, NO ASSESSMENT U/S. 143(3) IN ITS RESPECT COULD BE M ADE. THE LD. CIT(A), ADMITTING THE ADDITIONAL GROUNDS CHALLENGING THE VA LIDITY OF THE ASSESSMENT, IN- AS-MUCH AS THE SAME RAISED A LEGAL ISSUE REQUIRING (APPARENTLY) NO INVESTIGATION OF FACTS, HOWEVER, HELD IN THE NEGATIVE. THE ASSESS EE IS A PARTNER IN A PARTNERSHIP FIRM M/S. VENKATAM CONSTRUCTION ENGINEERS (VCE); THE FACT OF HIS BEING A PARTNER BEING ALSO MENTIONED IN THE RETURN FILED OR IGINALLY. THE RETURN IN CASE OF A PARTNER OF A PARTNERSHIP FIRM, WHOSE ACCOUNTS ARE TO BE AUDITED, THE DUE DATE OF FILING OF RETURN U/S. 139(1) IS THAT OF THE FIRM IT SELF, I.E., 30 TH SEPTEMBER OF THE FOLLOWING YEAR, OR 30.09.2012 FOR A.Y 2012-13. EVEN THE RETURN FOR A.Y 2011- 12 WAS FILED BY THE ASSESSEE ON 29.09.2011 ONLY. TH E ORIGINAL RETURN FILED ON 29.09.2012 WAS THUS A VALID RETURN U/S. 139(1), AND NOT A RETURN U/S. 139(4) (REFER 3 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO PARA 4 OF THE IMPUGNED ORDER). HE, THEN, PROCEEDED TO DECIDE THE ASSESSEES APPEAL ON THE MERITS OF THE ADDITIONS MADE (VIDE PA RAS 4.1 & 4.2 OF THE ORDER). THE ASSESSEES CLAIM BEING DENIED THUS, HE IS IN SE COND APPEAL, RAISING THE FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT (A) IS ERRONEOUS I N LAW AND AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 2. THE LEARNED CIT (A) ERRED IN NOT CONSIDERING THE GROUNDS OF APPEAL AND ADDITIONAL GROUNDS OF APPEAL IN PROPER PERSPECTIVE. 3. THE LEARNED CIT (A), WHILE ADMITTING THE ADDITIO NAL GROUNDS OF APPEAL, ERRED IN NOT CONSIDERING THE VITAL POINT THAT THE D UE DATE FOR THE APPELLANT PARTNER WAS 31/07/2012 AND NOT 30/09/2012 , FOR THE APPELLANT WAS NOT A 'WORKING PARTNER'. 4. THE LEARNED CIT (A) ERRED IN NOT CONSIDERING THE POINT THAT SINCE WHAT WAS FILED ON 29/09/2012 WAS NOT A RETURN OF INCOME ULS.139(1), THE SUBSEQUENT RETURN OF INCOME FILED ON 21/10/2013 COU LD NOT BE TREATED AS A RETURN OF INCOME ULS.139(5) AND HENCE, NOT VALID IN THE EYES OF LAW AND THAT THE ASSESSMENT BASED ON SUCH INVALID RETURN OF INCO ME WAS ALSO NOT VALID AND REQUIRED TO BE STRUCK DOWN. AND FOR OTHER REASONS THAT MAY BE ADDUCED AT THE TI ME OF HEARING, YOUR APPELLANT PRAYS THAT THE APPEAL BE ADMITTED, CONSID ERED AND JUSTICE BE RENDERED. 3. BEFORE US, THE THRUST OF THE ASSESSEES CASE WAS THAT THE LD. CIT(A) HAD WRONGLY INFERRED THAT THE ORIGINAL RETURN WAS FURNI SHED U/S. 139(1). DRAWING OUR ATTENTION TO EXPLANATION 2 TO S. 139(1), SPECIFYING THE DUE DATE FOR DIFFER ENT CLASSES OF ASSESSEES, IT WAS EMPHASIZED BY THE LD. AUTHORIZED REPRESENTATIVE, THE ASSESSEES COUNSEL, THAT IT IS ONLY IN CASE OF A WORKING PARTNER THAT THE DUE DATE OF FILING THE RETURN U/S. 139(1) GETS EXTENDE D TO THAT OF THE PARTNERSHIP FIRM. THE ASSESSEE, THOUGH A PARTNER IN A FIRM WHOSE ACCO UNTS ARE SUBJECT TO AUDIT U/S. 44AB OF THE ACT, IS NOT A WORKING PARTNER. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, DRAW OUR ATTENTION T O GD. 5.3 OF THE GROUNDS OF APPEAL BEFORE THE FIRST APPELLATE AUTHORITY, WHICH READS AS UNDER, WHEREBY THE ASSESSEE, WHO NOW DENIES TO BEING A WORKING PARTNER , CLAIMS TO BE SO, SO THAT THE 4 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO RETURN FILED ON 29.09.2012 WAS FILED WITHIN THE TIM E ALLOWED U/S. 139(1), I.E., 30.09.2012: 5.3 THE LEARNED AO HAS ERRED, IN CHARGING INTERES T WRONG BY U/S. 234A, FOR A DELAY OF ONE MONTH, BUT HOWEVER, SINCE HE IS A WORKING PARTNER OF A FIRM SUBJECT TO TAX AUDIT , THE RETURN FILED ON 29.9.2012 WAS WITHIN DUE DATE. (EMPHASIS, SUPPLIED) THE LD. COUNSEL WOULD, IN REJOINDER, SUBMIT THAT T HE ASSESSEE WISHES TO RETRACT THE STATEMENT OF FACT MADE PER GD. 5.3 BEFORE THE LD. CIT(A). 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. SECTION 139(4) OF THE ACT ALLOWS A PERSON WHO HAS NOT FURNISHED A RETURN WITHIN THE TIME ALLOWED U/S. 139(1), OR WITHIN THE TIME ALLOWED VIDE NOTICE U/S. 142(1), TO FURNISH A RETURN FOR ANY PREVIOUS YEAR W ITHIN ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETI ON OF ASSESSMENT, WHICHEVER IS EARLIER. SEC. 139(5) PROVIDES FOR ANY PERSON, WH O HAVING FURNISHED A RETURN U/S. 139(1) OR IN RESPONSE TO NOTICE U/S. 142(1), T O FURNISH A REVISED RETURN WITHIN ONE YEAR OF THE RELEVANT ASSESSMENT YEAR OR COMPLET ION OF ASSESSMENT, WHICHEVER IS EARLIER, IN CASE HE DISCOVERS ANY OMIS SION OR MISSTATEMENT IN THE RETURN FILED EARLIER. THE HON'BLE APEX COURT IN KUMAR JAGDISH CHANDRA SINHA V. CIT [1996] 220 ITR 67 (SC), ALSO RELIED UPON BY THE ASS ESSEE BEFORE THE LD. CIT(A), HAS HELD THAT A BELATED RETURN U/S. 139(4) CANNOT BE REVISED U/S. 139(5). THIS IN FACT IS ALSO THE CLEAR MANDATE OF THE RELEV ANT PROVISION (S. 139(5)). CLEARLY THEREFORE, IN THE EVENT OF THE ASSESSEES FIRST RETURN (FILED ON 29.09.2012) BEING NOT A RETURN U/S. 139(1), BUT A RETURN U/S. 1 39(4), THE SAME COULD NOT BE REVISED AND, ACCORDINGLY, THE RETURN FILED SUBSEQUE NTLY ON 21.10.2013 BECOMES A NON EST RETURN IN LAW. THE ONLY MANNER IN WHICH THE SAID R ETURN COULD THEREFORE BE TAKEN COGNIZANCE OF BY THE REVENUE WAS TO REGULA RIZE IT BY ISSUE OF NOTICE U/S. 148, I.E., IN CASE OF ESCAPEMENT OF INCOME FRO M ASSESSMENT. THE ASSESSEE DID NOT RAISE THE ASPECT OF VALIDITY OF HIS SECOND RETURN BEFORE THE ASSESSING 5 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO OFFICER (AO). WE STATE SO AS, WHERE SO, THE AO COUL D HAVE, IF HE FOUND THE ASSESSEES LEGAL ARGUMENT CHALLENGING HIS JURISDICT ION TO ASSESS VALID, ISSUED A NOTICE U/S. 148. THIS IS AS THE REVENUE HAD INFORMA TION OF LARGE CASH DEPOSITS IN THE ASSESSEES BANK ACCOUNT MAINTAINED WITH CANARA BANK, SAIBABA COLONY BRANCH, COIMBATORE, VIZ. . 55 LACS ON 30.01.2012 (REFER PARA 1/PG.1 AND PG.3 OF THE ASSESSMENT ORDER). THERE BEING NOTHING AMIS S, THE ASSESSEES FILING A REVISED RETURN ON 21.10.2013, I.E., AS STATED IN THE RETURN (COPY ON RECORD), BEING WITHIN ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR, WAS REGARDED AS SUCH, I.E., A REVISED RETURN U/S. 139(5 ). THE LD. CIT(A) RIGHTLY ADMITTED THE ASSESSEES ADDITIONAL GROUNDS, RAISING THE LEGAL ISSUE, GOING TO THE ROOT OF THE MATTER, I.E., THE VALIDITY OF THE ASSESSMENT BASED ON THE MATERIA L ON RECORD . RATHER, WE FIND THE ASSESSEE TO HAVE PER GD.5.3 OF HIS GROU NDS OF APPEAL (BEFORE THE FIRST APPELLATE AUTHORITY) ASSAILED THE LEVY OF INTEREST U/S. 234A IN-AS- MUCH AS HE WAS A WORKING PARTNER, SO THAT THE DUE D ATE FOR FILING THE RETURN U/S. 139(1) IN HIS CASE WAS 30.09.2012 AND, ACCORDINGLY, THE RETURN FILED ON 29.09.2012 WAS U/S. 139(1). THE LD. CIT(A) COULD HA VE ANSWERED THE LEGAL ISSUE RAISED BEFORE HIM BY THE ASSESSEE ONLY ON THE BASIS OF THE TRUTH OF THE AVERMENTS MADE IN THE ASSESSMENT AND APPELLATE PROCEEDINGS. RATHER, ANY CONFLICT OR AMBIGUITY ON FACTS, RELEVANT FOR THE PURPOSE, WOULD OUST THE ASSESSEES PLEADING OF THE SAID ISSUE PER LEGAL GROUNDS, RAISED FOR THE FIRST TIME BEFORE HIM. THERE IS NO QUESTION OF RETRACTING THE GROUND RAISED BEFORE THE FIRST APPELLATE AUTHORITY, OR THE AVERMENT MADE THEREBY, I.E., AT THIS STAGE , BEING IN RELATION TO A FACT MATERIAL TO THE ADJUDICATION OF THE LEGAL ISSUE RAI SED BY HIM FOR THE FIRST TIME BEFORE THE SAID AUTHORITY, AND WHICH IS NOW PRESSED BEFORE US. WE DO NOTE AND ARE CONSCIOUS THAT THE REVENUE ALSO RECORDS THE ASS ESSEES FIRST RETURN AS A BELATED RETURN IN-AS-MUCH AS THERE IS A CHARGE OF I NTEREST U/S. 234A FOR THE DELAY IN THE FILING OF RETURN PER ASSESSMENT U/S. 143(3). HOWEVER, THE SAME IS WITHOUT ANY BASIS. AS AFORESAID, THERE IS NO MENTION OF THE ASSESSEES STATUS AS A WORKING 6 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO PARTNER IN THE PARTNERSHIP FIRM, VCE, OR OF ITS ACC OUNTS BEING AUDITED, IN THE ASSESSMENT ORDER U/S. 143(3), SO THAT THE SAME IS O NLY WITH REFERENCE TO THE DUE DATE MENTIONED BY THE ASSESSEE PER HIS RETURN OF IN COME (COPY ON RECORD), I.E., 31/8/2012. HOWEVER, AS AFORESAID, ANY CONFLICT WITH REGARD TO THE DUE DATE U/S. 139(1) FOR THE RELEVANT YEAR WOULD ONLY OPERATE TO OUST THE ASSESSEES LEGAL CASE, RAISED IN THE APPELLATE PROCEEDINGS FOR THE FIRST T IME IN-AS-MUCH AS THE SAME WOULD REQUIRE DETERMINATION OF FACTS RELEVANT FOR A DJUDICATING THE SAME IN THE FIRST PLACE. THERE IS, AS AFORE-NOTED, NO REFERENCE TO THE ASSESSEE BEING A WORKING PARTNER AT ANY STAGE, I.E., PRIOR TO OR DE HORS THE ASSESSEE RAISING THE SAID LEGAL PLEA, WHICH, AS IT TURNS OUT, IS A MATERIAL FACT. T HIS ALSO EXPLAINS THE ASSESSEES GROUNDS BEFORE US. THE ASSESSEES GD. 3 BEFORE US R AISES A QUESTION OF FACT, WHICH IS A MATERIAL FACT FOR DECIDING THE LEGAL ISS UE RAISED PER GD.4. UNDER THE CIRCUMSTANCES, THEREFORE, THE LEGAL ISSUE RAISED BY THE ASSESSEE SHALL HAVE TO BE NECESSARILY DECIDED ON THE BASIS OF THE ASSESSEES AVOWED STAND IN THE ASSESSMENT AND APPELLATE PROCEEDINGS. TOWARD THIS, THE ASSESSEES REVISION OF HIS RETURN, IMPLYING THE ORIGINAL RETURN TO BE U/S. 139(1), AS WELL AS HIS AVERMENT PER GD. 5.3 BEFORE THE FIRST APPELLATE AUTHORITY, A SSUMES CRITICAL SIGNIFICANCE. THIS IS AS THE SAME COULD NOT BUT BE ACCORDED DEFER ENCE AND COGNITION BY THE REVENUE EXCEPT WHERE IT HAS MATERIAL CONTRADICTING THE SAME, AND WHICH IS COMPLETELY ABSENT. THIS IS PRECISELY WHAT STANDS ST ATED EARLIER BY US, I.E., THAT THE LD. CIT(A) COULD ONLY PROCEED IN THE MATTER ON THE BASIS OF THE TRUTH OF THE ASSESSEES CONTENTIONS BEFORE HIM. IT NEEDS TO BE A PPRECIATED THAT IT IS ONLY THE ASSESSEE WHO IS IN THE INTIMATE KNOW OF HIS AFFAIRS AS WELL AS THE CHANGES IN HIS PARTICULARS DURING THE RELEVANT YEAR, I.E., WITH RE FERENCE TO AN EARLIER YEAR. IN THE SCHEME OF THINGS, THEREFORE, A REBUTTAL BY THE REVE NUE COULD ONLY BE ON THE BASIS OF CONTRADICTING MATERIAL. AND, WHICH AGAIN CAN BE RELIED UPON ONLY AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY TO EXPLAIN THE SAME . IN THE PRESENT CASE, THE ISSUE HAVING BEEN RAISED ONLY IN THE APPELLATE PROCEEDINGS FOR THE FIRST TIME, 7 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO ITS ADMISSION IS SUBJECT TO ITS DETERMINATION ON TH E BASIS OF CLEAR, UNDISPUTED FACTS, FAILING WHICH IT IS LIABLE TO BE DENIED ADMI SSION. THE LAW IN THE MATTER IS WELL SETTLED. REFERENCE IN THIS REGARD MAY BE MADE TO THE DECISION BY THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V. ABHINITHA FOUNDATION PVT. LTD. [2017] 396 ITR 251 (MAD), RENDERED UPON NOTICING AN D REFERRING TO A PLETHORA OF DECISIONS, INCLUDING BY THE HON'BLE APEX HIGH CO URT AND, FURTHER, BY THE LARGER BENCHES THEREOF, AS WELL AS BY THE ITS EARLI ER JUDGMENTS, AS IN RAMCO CEMENTS LTD. V. DY. CIT [2015] 373 ITR 146 (MAD) AND CIT V. MALIND LEVITATORS PVT. LTD. (T.C. (A) NO.874/2014 DATED 18.11.2014). IN SUM, IT IS REITERATED THAT AN APPELLATE AUTHORI TY HAS THE POWER TO CONSIDER THE ASSESSEES CLAIM EVEN IF NOT MADE PER A RETURN OR REVISED RETURN OF INCOME WHERE THE RELEVANT MATERIAL IS ON RECORD AND THE CL AIM IS OTHERWISE TENABLE IN LAW. IN THE PRESENT CASE, THE CLAIM IS FOR NEGATION OR DECLARING INVALID THE ASSESSEES RETURN IN LAW AND, CONSEQUENTLY, THE ASS ESSMENT FRAMED IN PURSUANCE THERETO, WHICH THE ASSESSEE IS WELL ENTITLED TO MAK E, PROVIDED THERE IS NO DISPUTE QUA FACTS REQUIRED TO DETERMINE THE ISSUE ARISING. WHE RE THE RELEVANT FACTS ARE NOT ON RECORD, OR THE MATERIAL OR RECORD POINTS OTH ERWISE, OR ARE TO BE BROUGHT ON RECORD, THE CLAIM CANNOT BE ADMITTED. AT THIS STAGE , WE MAY ALSO CLARIFY ANOTHER ASPECT OF THE MATTER. IT MAY BE ARGUED THAT THE PAR TNERSHIP DEED OF VCE SHALL BEAR OUT WHETHER THE ASSESSEE IS OR IS NOT A WORKIN G PARTNER IN THE SAID FIRM FOR THE RELEVANT YEAR. TRUE, BUT THE INSTRUMENT OF PART NERSHIP SHALL BE A PART OF THE ASSESSMENT RECORD OF THE SAID FIRM AND NOT OF ITS P ARTNERS. FURTHER, EVEN IF, FOR THE SAKE OF ARGUMENT, THE ASSESSMENT RECORD OR RETU RN FOR THE EARLIER YEAR INDICATES THE ASSESSEE TO BE NOT A WORKING PARTNER, IT CANNOT BE SAID THAT THE SAME POSITION CONTINUES, OR ITS ACCOUNTS ARE SUBJECT TO AUDIT UNDER LAW FOR THE CURRENT YEAR. THAT IS, THERE IS NOTHING ON RECORD TO EXHIBI T THAT THE ASSESSEE IS A WORKING PARTNER OR NOT SO, I.E., ONE WAY OR THE OTHER, EXCE PT THE AVERMENT PER GD. 5.3 SUPRA. RATHER, THE CONTRARY CLAIMS BY THE ASSESSEE, STATING THE DUE DATE FILING OF 8 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO RETURN AS 31.08.2012 (IN THE COMPUTATION OF INCOME FOR THE YEAR), WHILE AT THE SAME TIME PREFERRING A REVISED RETURN, I.E., U/S. 1 39(5), AS WELL AS CONTENDING PER THE GROUNDS OF APPEAL TO BE A WORKING PARTNER, SO T HAT THE DUE DATE IS 30.09.2012, MAKES HIS CLAIM UNTENABLE, I.E., IN THE ABSENCE OF ANY MATERIAL ESTABLISHING SAME. IN CONCLUSION : 5. THE QUESTION OF LAW RAISED BY THE ASSESSEE BEFOR E THE FIRST APPELLATE AUTHORITY AS TO WHETHER THE ASSESSEES RETURN OF IN COME FILED ON 21.10.2013 IS A VALID RETURN IN LAW, AS IT TRANSPIRES, HINGES ON WH ETHER THE ASSESSEE IS A WORKING PARTNER IN THE PARTNERSHIP FIRM VCE, OR ONLY A PART NER, AS CLAIMED BY THE ASSESSEE AND, FURTHER, IF THE ACCOUNTS OF THE SAID FIRM ARE SUBJECT TO AUDIT U/S. 44AB OF THE ACT. THIS ALSO EXPLAINS THE GROUNDS OF APPEAL ASSUMED BEFORE US, WHICH THOUGH HIGHLIGHT ONLY THE FIRST ASPECT (PER G D.3). THERE IS NOTHING ON RECORD, OR BROUGHT ON RECORD, FOR THE LD. CIT(A) TO ANSWER THE LEGAL PLEA AS TO THE INVALIDITY OF THE SECOND RETURN, AND THUS OF THE AS SESSMENT MADE IN PURSUANCE THERETO, RAISED BY THE ASSESSEE BEFORE HIM. HE, HOW EVER, PRESUMES BOTH THESE FACTS, I.E., OF THE ASSESSEE BEING A WORKING PARTNE R IN VCE, AND OF IT BEING AN ASSESSEE COVERED U/S. 44AB (REFER PARA 4 OF THE IMP UGNED ORDER), TO HOLD THE ASSESSEES FIRST RETURN AS A VALID RETURN U/S. 139( 1), WHICH COULD THEREFORE BE REVISED AND, THUS, HIS SECOND RETURN AS A VALID RET URN U/S. 139(5). THAT IS, ISSUES A FINDING WHICH HE COULD NOT, I.E., IN THE ABSENCE OF ANY MATERIAL ON RECORD EXHIBITING THE ASSESSEE TO BE A WORKING PARTNER IN A FIRM WHOSE ACCOUNTS ARE SUBJECT TO TAX AUDIT, VIZ., THE INSTRUMENT OF PARTN ERSHIP AS APPLICABLE FOR THE CURRENT YEAR; THE FIRMS BALANCE-SHEET, OR EVEN ITS COMPUTATION FOR THE CURRENT YEAR, ETC. RATHER, WE OBSERVE CONTRARY CLAIMS BY TH E ASSESSEE IN THE MATTER, ALBEIT TO THE SAME EFFECT, I.E., AN INABILITY TO AN SWER THE LEGAL ISSUE ARISING IN THE DEFINITIVE. NO WONDER THE LD. COUNSEL WOULD, IN HIS PLEADINGS BEFORE US, SUBMIT THAT THE MATTER BE RESTORED FOR CONSIDERATION BY TH E AO A COURSE OF ACTION 9 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO WHICH IS CLEARLY IMPERMISSIBLE, EXCEPT WHERE THE FA CTS ARE BORNE OUT BY THE RECORD, WHICH IS CLEARLY NOT THE CASE. THIS, THEN, MAKES THE ASSESSEES LEGAL PLEA RAISED PER THE ADDITIONAL GROUND IN THE APPELLATE P ROCEEDINGS INADMISSIBLE IN-AS- MUCH AS IT IS ONLY WHERE THE FACTS NECESSARY FOR AN SWERING THE SAME ARE BORNE OUT BY THE RECORD OR OTHERWISE NOT IN DISPUTE, THAT THE SAME COULD BE ADMITTED IN THE APPELLATE PROCEEDINGS. THE LAW IN THE MATTER IS WELL-SETTLED, AND TOWARD WHICH REFERENCE BE MADE, INTER ALIA , TO THE DECISIONS IN NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (SC) AND JUTE CORPORATION OF INDIA LTD. V. CIT [1991] 187 ITR 688 (SC), REFERENCE TO WHICH STANDS MADE, REPRODUCING THEREFROM, IN ABHINITHA FOUNDATION PVT. LTD. (SUPRA) (AT PGS 258-259), CLARIFYING THAT WHERE THE RELEVANT MATERIAL WAS AVA ILABLE ON RECORD, THE LEGAL QUESTION COULD BE ANSWERED BY THE APPELLATE FORUM I TSELF OR THROUGH A REMAND TO THE AO (PARA 18/PG. 264 OF THE REPORTS). THERE IS N O REFERENCE TO THE ASSESSEES STATUS AS A WORKING PARTNER IN A FIRM WHOSE ACCOUNT S ARE SUBJECT TO AUDIT UNDER LAW, IN THE ASSESSMENT ORDER, OR ANY MATERIAL ON RE CORD EXHIBITING SO, SO AS TO BE REGARDED AS AN ADMITTED FACT, WITH IN FACT THE ASSE SSEE HIMSELF MAKING CONTRARY CLAIMS IN ITS RESPECT PER HIS GROUNDS OF APPEAL (GD . 5.3) AND ADDITIONAL GROUNDS OF APPEAL (ADDL. GD.1) BEFORE THE FIRST APPELLATE AUTHORITY, BEFORE WHOM, THE LEGAL ISSUE, REQUIRING AS A PRE-REQUISITE UNDISPUTE D FACTS, WAS RAISED FOR THE FIRST TIME. THE ASSESSEE COULD HAVE, OBSERVING R. 46A, PL ACED BEFORE THE LD. CIT(A) MATERIAL IN SUPPORT OF HIS GD. 5.3, I.E., AS TO HE BEING A WORKING PARTNER, AND THE ACCOUNTS OF THE FIRM VCE BEING SUBJECT TO AUDIT U/S . 44AB OF THE ACT, WHICH WOULD ENABLE HIM NOT ONLY TO DECIDE THE SAID GROUND , BUT ALSO, LIKE-WISE, THE LEGAL ISSUE RAISED PER THE ADDITIONAL GROUNDS. THIS WAS IN FACT INCUMBENT ON THE ASSESSEE IN VIEW OF THE CONTRARY STANDS BEING ASSUM ED, AND IN ANY CASE TO ENABLE ANSWERING THE GROUNDS RAISED BY HIM. WHY, HE COULD ALSO EXPLAIN THE BASIS WHATEVER IT MAY BE, FOR FURNISHING THE REVISED RETU RN, IMPLYING THE ORIGINAL BEING U/S. 139(1), AS WELL AS THE AVERMENT ( QUA FACTS) PER GD. 5.3. THE SAME 10 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO CANNOT, IT MAY BE APPRECIATED, BE PRESUMED TO BE WI THOUT ANY BASIS. THE RAISING OF THE ADDITIONAL GROUND BY THE ASSESSEE, CONTRADIC TING HIS EARLIER FACTUAL STAND, APPEARS TO BE AN AFTERTHOUGHT. THE LD. CIT(A) COULD NOT HAVE, AS IT TURNS OUT, ADMITTED THE ASSESSEES ADDITIONAL GROUNDS OF APPEA L BEFORE HIM. WE MAY HASTEN THOUGH TO ADD THAT THE POSITION WOULD BE DIFFERENT HAD THE ASSESSEE RAISED THE SAID LEGAL PLEA BEFORE THE ASSESSING AUTHORITY, WHO COULD, IN THAT CASE; THE MATTER BEING WIDE UPON, BE BOUND TO DETERMINE ALL THE FACT UAL AND LEGAL ASPECTS OF THE MATTER. WHY, HE COULD EVEN ISSUE A NOTICE U/S. 148 WHERE HE FOUND THE ASSESSEE TO BE INDEED NOT A WORKING PARTNER IN A FIRM SUBJEC T TO TAX AUDIT, TO BRING THE UNDISCLOSED INCOME TO TAX. THIS, IN FACT, RAISES A LARGER QUESTION, I.E., COULD ANYONE TAKE ADVANTAGE OF HIS OWN WRONG AS THE FIL ING OF THE REVISED RETURN STATED TO BE (PER ADDL. GD.1), WHICH IS IMPERMISSIB LE IN LAW. THAT THE ASSESSEE SUPPORTS THE SAID FILING PER HIS GD. 5.3 (ALSO BEFO RE THE FIRST APPELLATE AUTHORITY) FURTHER CONFOUNDS THE MATTER, CLEARLY MAKING HIS AD DL. GDS. INADMISSIBLE. THE REVENUE, HOWEVER, THOUGH NOT IN APPEAL, IS NOT CONSTRAINED BY THE SAID ADMISSION (OF THE ASSESSEES LEGAL GROUND) BY THE L D. CIT(A) IN-AS-MUCH AS IT CAN, AS IT DOES, SUPPORT HIS ORDER ON ANY GROUND DE CIDED AGAINST IT (R. 27 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963). IN OT HER WORDS, THE QUESTION OF ADMISSION OF LEGAL ISSUE CANNOT PREJUDICE THE REVEN UES CASE. THERE IS, AS WE OBSERVE, NO REFERENCE TO, NOR ANY MATERIAL ON RECOR D, WHICH WOULD BEAR OUT THE RELEVANT FACTS NECESSARY FOR ANSWERING THE LEGAL QU ESTION, WITH THE REVENUE ENTITLED TO SUPPORT THE IMPUGNED ORDER IN ANY MANNE R. RATHER, AND EVEN OTHERWISE, IT IS THE CORRECT LEGAL POSITION THAT IS RELEVANT, AND NOT THE VIEW THAT THE PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER (REFER: CIT V. C. PARAKH & CO. (INDIA) LTD . [1956] 29 ITR 661 (SC); KEDARNATH JUTE MFG. CO. LTD. V. CIT [1971] 82 ITR 363 (SC)). FURTHER STILL, R. 11 & 27 OF THE APPELLATE TRIBUNAL RULES ARE NOT EXHAUSTIVE OF THE POWERS OF THE TRIBU NAL ( HUKUMCHAND MILLS LTD. V. CIT [1967] 63 ITR 232 (SC)). IN FACT, CONTINUING FURTH ER, EVEN IF THE SAID 11 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO GROUND/S ARE TAKEN AS ADMITTED, I.E., FOR THE SAKE OF ARGUMENT, THE SAME IS TO BE ANSWERED ON THE BASIS OF ADMITTED FACTS, I.E., TH E ASSESSEE FILING THE REVISED RETURN AND CONTESTING THE LATE FILING OF THE FIRST RETURN (BY ONE MONTH) ON THE FACTUAL BASIS THAT HE IS A WORKING PARTNER IN VCE, WHOSE ACCOUNTS ARE SUBJECT TO AUDIT U/S. 44AB. THAT IS, ANSWERED AGAINST THE ASSE SSEE, IN-AS-MUCH AS THE FIRST RETURN BECOMES A RETURN FILED WITHIN THE DUE DATE P RESCRIBED U/S. 139(1). THIS IS IN THE ABSENCE OF ANY MATERIAL ON RECORD TO REBUT T HE ASSESSEES CLAIMS , AND WHICH, WHERE SO, WOULD REQUIRE BEING CONFRONTED TO THE ASSESSEE. THE CONTRARY CLAIMS QUA THE RELEVANT FACTS BY THE ASSESSEE MAKES THE ADMIS SION OF HIS LEGAL ISSUE UNTENABLE. IN OUR CLEAR VIEW, THEREFORE, THE ASSESSEES LEGAL GROUND, RAISING A VALID QUESTION, BECOMES INADMISSIBLE IN VIEW OF I NDETERMINATE FACTS. TOWARD THIS, WE HAVE ALREADY NOTED THAT GD.3 RAISES A QUES TION OF FACT - FOR WHICH THERE IS NO MATERIAL, SO THAT A SET ASIDE TO THE AO WAS P ROPOSED BY THE LD. AR DURING HEARING, ANSWER TO WHICH, ALONG WITH THE FURTHER (F ACTUAL) ISSUE OF THE FIRMS ACCOUNTS BEING SUBJECT TO AUDIT, WOULD ONLY ENABLE ANSWERING GD. 4 BEFORE US. THAT IS, WE ARE FACED WITH A SITUATION SIMILAR TO T HAT BY THE LD. CIT(A), BESIDES THE LARGER QUESTION AFORE-REFERRED, RENDERING THE S AID GD.4 INADMISSIBLE. AND, IN ANY CASE, COULD BE ANSWERED, AS BY THE REVENUE, ONL Y AGAINST THE ASSESSEE, I.E., ON THE MERITS. FURTHER, THE ADDITIONS MADE IN ASSESSMENT, ALSO CH ALLENGED BEFORE THE LD. CIT(A), HAVE BEEN ANSWERED BY HIM AGAINST THE ASSES SEE (VIDE PARAS 4.1 & 4.2 OF THE IMPUGNED ORDER). HIS ORDER HAS NOT BEEN CONT ESTED BEFORE US ON THE MERITS OF THE SAME, EITHER PER THE GROUNDS OF APPEAL OR EV EN ORALLY. THERE IS, ACCORDINGLY, NO QUESTION OF OUR TRAVELLING TO OR RE VIEWING THE SAID PART OF HIS DECISION. THE ASSESSEE HAS, HOWEVER, BEING CHARGED INTEREST U/S. 234A INASMUCH AS THE SAME HAS NOT BEEN DELETED BY THE LD. CIT(A), AND WHICH HAS BEEN CONTESTED PER GD. 5.3 BEFORE HIM. THOUGH THE ASSESS EE HAS BEFORE US NOT RAISED ANY GRIEVANCE WITH REGARD TO THE SAME; IN FACT, RETRACTING IT AND WHICH COULD 12 ITA NO.1000/MDS/2017 (AY 2012-13) G.NARASIMAN V . ITO NOT BE BEFORE US, THE SAME, I.E., THE SAID CHARGE, IS INCONSISTENT WI TH THE ORDER BY THE LD. CIT(A), AS WELL AS, IN FACT, OUR ORDER STAT ING THE ASSESSEES LEGAL CLAIM AS TO THE INVALIDITY OF HIS SECOND RETURN AS BEING I NADMISSIBLE IN VIEW OF INDETERMINATE FACTS, BEING IN FACT SUBJECT TO CONTR ARY CLAIMS AND, IN ANY CASE, ANSWERABLE ONLY AGAINST THE ASSESSEE IN VIEW OF ITS AVOWED STAND IN THE ASSESSMENT (FILING A REVISED RETURN, WHICH CAN ONLY BE U/S. 139(5)) AND APPELLATE PROCEEDINGS (PER GD.5.3 SUPRA). THE REVENUE CANNOT TREAT THE ASSESSEES FIRST RETURN AS A VALID RETURN U/S. 139(1), SO THAT IT CO ULD BE REVISED U/S. 139(5), AND AT THE SAME TIME CHARGE INTEREST U/S. 234A (I.E., FOR THE DELAY IN FILING THE RETURN), IMPLYING IT TO BE A BELATED RETURN, FILED U/S. 139( 4), AGAIN SHOWING, IF THAT WAS STILL NECESSARY, INDETERMINATE FACTS. WE, ACCORDING LY, DIRECT ITS DELETION. AS EXPLAINED IN CIT V. WALCHAND AND CO. (P.) LTD. [1967] 65 ITR 381 (SC), THE TRIBUNAL IS TO DEAL WITH AND DETERMINE ALL THE QUES TIONS WHICH ARISE OUT OF THE SUBJECT MATTER OF APPEAL, IN LIGHT OF THE EVIDENCE AND CONSISTENTLY WITH THE JUSTICE OF THE CASE. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISPOSED OF ON THE FOREGOING TERMS. ORDER PRONOUNCED ON OCTOBER 13, 2017 AT CHENNAI SD/- SD/- ( ! ' . #$ ) (DUVVURU RL REDDY) % /JUDICIAL MEMBER ( ) (SANJAY ARORA) /ACCOUNTANT MEMBER /CHENNAI, 4 /DATED, OCTOBER 13, 2017 EDN 5 . 0%267 87*2 /COPY TO: 1. +, /APPELLANT 2. 01+, /RESPONDENT 3. 92 ( )/CIT(A) 4. 92 /CIT 5. 7:; 0%2% /DR 6. ;$) < /GF