Avadhut Ban (HUF), Pune V. Pr. Commissioner of Income-tax -2, Aurangabad

ITA 1691/PUN/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7048 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-09-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 07-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASIF A KARMALI
• Keywords: Assessment record; Revised return; Set aside
• Section: 143(3); 54F; 139(5); 201; 143(2); 139(1); 139(4); 13; 263; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT AND SHRI S.S. VISWANETHRA RAVI, J UDICIAL MEMBER . / ITA NO . 1691 /PUN/2017 / ASSESSMENT YEAR : 20 1 2 - 13 AVADHUT BAN (HUF), TUSCAN ESTATE, FLAT NO. 603, 6 TH FLOOR, BUILDING NO. B1, KHARADI, PUNE 411014 PAN : AAFHB7980K ....... / APPELLANT / V/S. THE PR. COMMISSIONER OF INCOME TAX - 2 , AURANGABAD / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI ASIF A. KARMALI / DATE OF HEARING : 0 2 - 09 - 2020 / DATE OF PRONOUNCEMENT : 09 - 0 9 - 2020 / ORDER PER S.S. VISWANETHRA RAVI, JM : THIS APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 14 - 02 - 2017 PASSED BY THE PR. COMMISSIONER OF INCOME TAX 2, AURANGABAD PASSED U/S. 263 OF THE ACT FOR ASSESSMENT YEAR 201 2 - 13. 2 ITA NO . 1691/PUN/2017, A.Y. 2012 - 13 2. THE ASSESSEE RAISED THREE GROUNDS OF APPEAL AMONGST WHICH THE ONLY ISSUE ARISES FOR OUR CONSIDERATION IS AS TO WHETHER THE PR. CIT JUSTIFIED IN HOLDING THE ASSESSMENT PASSED U/S. 143(3) OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. HEARD BOTH PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE ASSESSEE FILED RETURN OF INCOME DECLARING TOTAL I NCOME OF RS.18,81,086/ - U/S. 139(1) OF THE ACT ON 30 - 03 - 2013. FURTHER, A REVISED RETURN OF INCOME FILED DECLARING A TOTAL INCOME OF RS.3,01,525/ - ON 23 - 12 - 2013. THE ASSESSING OFFICER ACTING UPON THE REVISED RETURN OF INCOME DETERMINED THE TOTAL INCOME O F ASSESSEE AT RS.3,94,290/ - VIDE ITS ORDER DATED 14 - 11 - 2014. 4. THE PR. CIT ON PERUSAL OF THE ASSESSMENT RECORDS HELD THAT THE ASSESSING OFFICER OUGHT NOT TO HAVE TAKEN COGNIZANCE OF REVISED RETURN AND THE ASSESSEE IS NOT ENTITLED TO FILE REVISED RETURN OF INCOME SINCE THE ORIGINAL RETURN OF INCOME WAS ONLY FILED U/S. 139(4) OF THE ACT. ACCORDINGLY, EXERCISING POWERS U/S. 263 OF THE ACT ISSUED NOTICES TO THE ASSESSEE. THE ASSESSEE APPEARED THROUGH ITS AUTHORIZED REPRESENTATIVE AND MADE SUBMISSIONS. IT WAS CONTENDED THAT THE ORIGINAL RETURN OF INCOME FILED U/S. 139(4) OF THE ACT WAS FILED IN HURRY , THE COST OF IMPROVEMENT AND DEDUCTION FOR REINVESTMENT U/S. 54F OF THE ACT WAS REMAINED TO BE CLAIMED. IN ORDER TO CLAIM THE SAME UNDER LAW A REVISED RETURN HAS BEEN FILED. FURTHER, IT WAS SUBMITTED A REVISED RETURN FILED BELATEDLY CAN BE CONSIDERED IN VIEW OF AMENDMENT BY THE FINANCE ACT, 2016 TO SECTION 139(5) OF THE ACT. THE PR. CIT IS OF THE OPINION THAT THE AMENDMENT U/S. 139(5 ) OF THE ACT WILL APPLY PROSPECTIVELY AND HELD THE ASSESSING OFFICER COMMITTED AN ERROR IN 3 ITA NO . 1691/PUN/2017, A.Y. 2012 - 13 CONSIDERING THE REVISED RETURN AND ALSO FAILED TO MAKE NECESSARY ENQUIRIES REQUIRED BEFORE PASSING ASSESSMENT U/S. 143(3) OF THE ACT AND SET ASIDE THE ORDER OF ASSESSING OFFICER DATED 16 - 11 - 2014 BY HOLDING IT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. 5. BEFORE US, THE LD. AR, SHRI PRAMOD SHINGTE SUBMITTED THAT THE PR. CIT CANNOT EXERCISE JURISDICTION U/S. 263 ON NON - EST RETURN OF INCOME AND ARGUED IT IS LEGAL ISSUE . IN VIEW OF THE REVISED RETURN OF INCOME FILED THE ORIGINAL RETURN OF INCOME FILED ON 30 - 03 - 2013 BECOMES NON - EST. HE SUBMITS THAT THE ORDER PASSED BY THE PR. CIT ON NON - EST RETURN DECLARING THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE IS BAD UNDER LAW. SECONDLY, ON MERITS HE REFERRED TO PAGE 82 OF THE PAPER BOOK AND SUBMITTED DURING THE COURSE OF SCRUTINY ASSESSMENT PROCEEDINGS, THE AO ISSUED NOTICE U/S. 143(2) OF THE ACT REQUESTING THE ASSESSEE T O SUBMITS COPY OF DETAILS OF SALE AND PURCHASE OF PROPERTIES IN SUPPORT OF CLAIM U/S. 54F OF THE ACT. HE REFERRED TO PAGE 19 OF THE PAPER BOOK AND SUBMITTED THAT IN RESPONSE TO QUERIES REGARDING SALE AND PURCHASE OF PROPERTIES WERE FURNISHED TO THE AO BY LETTER DATED 30 - 09 - 2014. HE SUBMITS ON MERITS ALSO A CLAIM U/S. 54F AND COST OF IMPROVEMENT HAS TO BE ACCEPTED OTHERWISE BY THE AO UNDER LAW AND ARGUED THAT THE PR. CIT DID NOT CONSIDER THE SAME. IN SUPPORT OF CLAIM U/S. 54F OF THE ACT HE REFERRED TO PAG E 1 OF THE LEGAL COMPILATION AND SUBMITTED THAT IF THE ASSESSEE UTILIZED SALE CONSIDERATION IN CONSTRUCTION OF ANOTHER RESIDENTIAL PROPERT Y WITHIN PRESCRIBED TIME , CLAIM FOR DEDUCTION U/S. 54F COULD NOT BE DENIED MERELY ON ACCOUNT OF FACT THAT THE ASSESSEE HAD NOT CLAIMED EXEMPTION IN RETURN OF INCOME AND ARGUED THE ORDER OF PR. CIT HOLDING ORDER OF AO PASSED U/S. 143(3) OF THE ACT IS BAD UNDER LAW AND PRAYED TO DISMISS THE ORDER PASSED BY THE PR. CIT U/S. 263 OF THE ACT. 4 ITA NO . 1691/PUN/2017, A.Y. 2012 - 13 6. THE LD. DR, SHRI ASIF A. KARMA LI SUBMITS THAT THE AO COULD NOT HAVE BEEN PROCESSED THE REVISED RETURN OF INCOME AS THE AO DOES NOT HAVE JURISDICTION TO PROCESS THE SAME. THE PR. CIT RIGHTLY HELD THAT THE AMENDMENT TO SECTION 139(5) OF THE ACT WILL APPLY PROSPECTIVELY AND IT IS NOT APP LICABLE TO THE CASE ON HAND. THE LD. DR SUPPORTED THE ORDER OF PR. CIT AND PRAYED TO UPHOLD THE SAME. 7. WE NOTE THAT THE ASSESSEE FILED PAPER BOOK CONTAINING PAGES 1 TO 93 WHEREIN IT IS NOTED COPIES OF DETAILS OF IMPROVEMENT AND PURCHASE DEEDS AND SALE DEEDS WERE REFLECTING FROM PAGES 32 TO 81 OF THE PAPER BOOK. THE CONTENTION OF LD. AR IS THAT THE ASSESSEE ENTITLED TO CLAIM COST OF IMPROVEMENT AND EXEMPTION U/S. 54F OF THE ACT. THE CONTENTION OF PR. CIT IS THAT THE AO CANNOT EXERCISE JURISDICTION TO PROCESS THE REVISED RETURN OF INCOME. ADMITTEDLY, THE ASSESSEE DECLARED THE TOTAL INCOME OF RS.18,81,086/ - U/S. 139(4) OF THE ACT AND UNDER REVISED RETURN OF INCOME DECLARED A TOTAL INCOME OF RS.3,01,525/ - . IT WAS ARGUED BY THE LD. AR IN THE ORIGINAL RETURN OF INCOME THE COST OF IMPROVEMENT AND EXEMPTION U/S. 54F REMAINED UNCLAIMED BY NOTICING SUCH ERROR THE ASSESSEE MADE TO FILE REVISED RETURN OF INCOME BY MAKING SUCH CLAIMS. THE ANOTHER CONTENTION RAISED BY THE LD. AR THAT THE ASSESSEE IS ENTITLED TO FILE REVISED RETURN OF INCOME IF IT DISCOVERS ANY OMISSION OR ANY WRONG STATEMENTS IN TERMS OF AMENDMENT U/S. 139( 5 ) OF THE ACT. 8. SUB - SECTION (5) OF SECTION 139 OF THE ACT SUBSTITUTED BY THE FINANCE ACT, 2016 W.E.F. 01 - 04 - 2017 WHERE IT EXPLAINS IF ANY PERSON , HAVING FURNISHED A RETURN UNDER SUB - SECTION (1) OR SUB - SECTION (4), DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE 5 ITA NO . 1691/PUN/2017, A.Y. 2012 - 13 COMPLETION OF TH E ASSESSMENT, WHICHEVER IS EARLIER. THE SUBSTITUTION OF SUB - SECTION (5) CAME INTO FORCE 01 - 04 - 2017 AND THE APPEAL UNDER CONSIDERATION IS RELATING TO A.Y. 2012 - 13, IN OUR OPINION, THE SUBSTITUTION VIDE FINANCE ACT, 2016 IS PROSPECTIVE IN NATURE AND IT IS N OT APPLICABLE TO THE APPEAL ON HAND. 9. PRIOR TO SUCH SUBSTITUTION THE PROVISIONS OF SUB - SECTION (5) OF SECTION 139 READS AS IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB - SECTION (1), DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FU RNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. ADMITTEDLY, THE ASSESSEE DID NOT FILE ORIGINAL RETURN OF INCOME UNDER SUB - SECTI ON (1) OF SECTION 139 OF THE ACT AND THEREFORE, IF AT ALL THE ASSESSEE DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT IS NOT ENTITLED TO FILE REVISED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. 10. THE LD. AR FOR THE ASSESSEE HAS CONTENDED THAT THE REVISED RETURN WAS INVALID AND NON - EST IN THE EYE OF LAW AND EVEN THE ASSESSMENT MADE BY THE AO IN PURSUANCE TO THE SAID RETURN WAS INVALID AND NON - EST AND THE CIT(A) WAS NOT EMPOWERED TO REVISE THE SAME U/S. 263 OF THE ACT. IN SUPPORT OF WHICH HE REL IED ON THE ORDER OF CHANDIGARH BENCH OF TRIBUNAL IN THE CASE OF STEEL STRIPS LTD. VS. ASSISTANT COMMISSIONER OF INCOME TAX REPORTED IN 53 ITD 553 (CHD) AS WELL AS DECISION OF ALLAHABAD BENCH OF TRIBUNAL IN THE CASE OF HARI MOHAN DAS TANDON (HUF) VS. PRINCI PAL COMMISSIONER OF INCOME TAX REPORTED IN 91 TAXMANN.COM 199 (ALLAHABAD). IT IS HOWEVER OBSERVED THAT THE FACTS INVOLVED IN THE PRESENT CASE ARE DIFFERENT FROM THE FACTS INVOLVED THEREIN. IN THE PRESENT CASE , TWO RETURNS 6 ITA NO . 1691/PUN/2017, A.Y. 2012 - 13 WERE FILED BY THE ASSESSEE ONE U /S. 139( 4 ) AND ANOTHER U/S. 139(5) OF THE ACT AND SINCE RETURN FILED U/S. 139 (4) OF THE ACT WAS VALIDLY FILED BY THE ASSESSEE , IT WAS INCUMBENT UPON THE AO TO COMPLETE THE ASSESSMENT IN PURSUANCE OF THE VALID RETURN OF INCOME. THE ASSESSMENT MADE BY AO WI TH REFERENCE TO SECTION 139(4) OF THE ACT THUS WAS NOT INVALID AND NON - EST BUT IT WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AS RIGHTLY HELD BY THE PR. CIT U/S. 263 . THUS, THE ORDER OF PR. CIT IS JUSTIFIED AND GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED. 11. IN THE RESULT, THE APPEAL OF ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH SEPTEMBER, 2020 . SD/ - SD/ - ( P.M. JAGTAP ) ( S.S. VISWANETHRA RAVI ) VICE PRESIDENT JUDICIAL MEMBER / PUNE; / DATED : 09 TH SEPTEMBER, 2020. RK / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE PR. CIT - 2, AURANGABAD 4 . , , , / DR, ITAT, B BENCH, PUNE. 5 . / GUARD FILE. // // TRUE COPY// / BY ORDER, / PRIVATE SECRETARY, , / ITAT, PUNE