INCOME TAX OFFICER 11(3)(3), MUMBAI V. VIKUNJ ENTERPRISES PRIVATE LIMITED, MUMBAI

ITA 1789/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7124 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: RAHUL R SARDA
• Keywords: Revised return
• Section: 143(3); 142(1); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI SANDEEP GOSAIN (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 1789 /MUM/2018 ASSESSMENT YEAR: 2014 - 15 INCOME TAX OFFICER 11(3)(3), ROOM NO.429, AAYAKAR BHAVAN, 4 TH FLOOR, M.K. MARG, MUMBAI - 400020. VS. VIKUNJ ENTERPRISES PRIVATE LIMITED, B - 1, NEELA APARTMENT, S.V.ROAD, BORIVALI(WEST), MUMBAI - 400092. PAN NO. AABCV6166C APPELLANT RESPONDENT REVENUE BY : SHRI. RAJEEV GUBGOTRA , DR ASSESSEE BY : SHRI. RAHUL R. SARDA , AR DATE OF HEARING : 0 8 /04/2019 DATE OF PRONOUNCEMENT : 30 /04/2019 ORDER PER N.K. PRADHAN, AM THIS IS AN APPEAL FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEAR IS 2014 - 15. THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX - 18, MUMBAI [IN SHORT CIT(A)] AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUND OF APPEAL FILED BY THE REVENUE R EADS AS UNDER: WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN GIVING RELIEF TO THE ASSESSEE OF RS.1,28,42,775/ - BY CONSIDERING THE INCOME AS PER REVISED RETURN OF INCOME (REVISED RETURN FILED ON 17.02. 2015) WHICH WAS NOT THE VALID RETURN OF INCOME AS PER SECTION 139(5) WHICH STATES THAT IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB SECTION (1), OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB SECTION (1) OF SECTION 142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OF BEFORE VIKUNJ ENTERPRISES PVT. LTD. ITA NO. 1789/MUM/2018 2 THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. IN CASE OF THE ASSESSEE, REVISED RETURN WAS NO T FILED AGAINST THE RETURN FILED U/S 139(1) OR IN RESPONSE TO THE NOTICE ISSUED U/S. 142(1) OF THE IT ACT, 1961. HENCE, IT WAS INVALID RETURN AS PER THE PROVISION OF INCOME TAX ACT FOR THE RELEVANT YEAR. 3. BRIEFLY STATED, THE FACTS ARE THAT THE APPELLANT FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR (A.Y.) 2014 - 15 ON 16.02.2016 DECLARING INCOME AT RS.1,28,42,730/ - . THEREAFTER, ON THE VERY NEXT DAY, THE APPELLANT FILED REVISED RETURN DECLARING TOTAL INCOME AT RS. NIL. DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, THE ASSESSING OFFICER (AO) ASKED THE ASSESSEE TO EXPLAIN THE DIFFERENCE BETWEEN THE ORIGINAL RETURN AND REVISED RETURN AND REASONS FOR FILING THE REVISED RETURN OF INCOME ON THE NEXT DAY OF FILING THE ORIGINAL RETURN. THE APPELLANT FILE AN EXPL ANATION BEFORE THE AO STATING THAT THERE WAS A PUNCHING ERROR IN FILING UP DETAILS IN E - FILING PORTALS, WHILE FILING THE ORIGINAL RETURN ON 16.02.2015, WHICH WAS ATTEMPTED TO BE RECTIFIED IMMEDIATELY ON THE NEXT DAY BY FILING REVISED RETURN OF INCOME ON 17 .02.2015. THE AO NOTICED THAT THE ORIGINAL RETURN BEING BELATED, THE REVISED RETURN OF INCOME HAS NOT BEEN PROCESSED BY THE CPC FOR A.Y. 2014 - 15. THE APPELLANT ALSO FILED AN AFFIDAVIT DATED 28.08.2015 BY MAYANK VALIA (DIRECTOR) STATING WE ARE IN THE BUS INESS OF CONSTRUCTION OF BUILDINGS AND THERE WAS NO SALE IN THE PREVIOUS YEAR I.E. F.Y. 2013 - 14 AND ALSO THERE WAS NO PROFIT OR LOSS NOR ANY EXPENSES DEBITED TO P&L A/C. BUT WHILE FILING ORIGINAL INCOME TAX RETURN, WRONGLY ENTERED PROFIT OF RS.1,28,52,010/ - INSTEAD OF RS. NIL. AFTERWARD WE HAVE FILED REVISED RETURN. HOWEVER, THE AO WAS NOT CONVINCED WITH THE ABOVE SUBMISSION OF THE ASSESSEE FOR THE REASON THAT THE ORIGINAL RETURN WAS FILED BELATEDLY I.E. NOT WITHIN THE TIME ALLOWED U/S. 139(1). THEREFORE, TREATING THE REVISED RETURN AS INVALID, THE AO CONSIDERED THE RETURNED INCOME OF RS.1,28,42,730/ - AS VIKUNJ ENTERPRISES PVT. LTD. ITA NO. 1789/MUM/2018 3 PER THE ORIGINAL RETURN OF INCOME FILED ON 16.02.2015 FOR ASSESSMENT PURPOSES. 4. IN APPEAL, THE LD. CIT(A) CONSIDERED THE FACT THAT RS.1,28,42,730/ - IS S HOWN AS INCOME FOR THE A.Y. 2014 - 15 INADVERTENTLY AS A RESULT OF PUNCHING ERROR. DURING THE ASSESSMENT PROCEEDINGS, THE APPELLANT HAD FILED REVISED COMPUTATION STATEMENT SHOWING NIL. THE LD. CIT(A) FURTHER OBSERVED THAT THE CORRECTNESS OF THE SAID REVISE D COMPUTATION STATEMENT HAS NOT BEEN QUESTIONED BY THE AO. FURTHER, RELYING ON THE DECISION IN THE CASE OF MIT MOHAN SINGH KAHLON V/S. DCIT [2013] 155 TTJ 1 (CHANDIGARH), CIT V/S. MR. P. FIRM (56 ITR 67) (SC), CIT V/S. KEISER E - HIND MILLS CO. LTD . 128 ITR 486 (GUJ.), THE LD. CIT(A) OBSERVED THAT SUBSTANTIAL JUSTICE SHOULD BE DONE IGNORING PEDANTIC AND TECHNICAL REASONS, AND ONLY CORRECT INCOME SHOULD BE TAXED. ACCORDINGLY, THE LD. CIT(A) DIRECTED THE AO TO ACCEPT THE COMPUTATION OF INCOME FILED IN SUPPORT O F INCOME FILED ON 17.02.2015. 5. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT RS.1,28,42,730/ - WAS SHOWN AS INCOME FOR A.Y. 2014 - 15, INADVERTENTLY AS A RESULT OF PUNCHING ERROR AND DURING THE ASSESSMENT PROCEEDINGS, IT HAS FILED REVISED COMPUTATION STATEMENT, SHOWING NIL INCO ME. IT IS STATED BY THAT THE CORRECTNESS OF THE SAID REVISED COMPUTATION STATEMENT HAS NOT BEEN QUESTIONED BY THE AO. THE LD. COUNSEL REFERS TO THE AFFIDAVIT DATED 28.08.2015 BY MR. MAYANK VALIA (DIRECTOR), WHEREIN IT IS STATED THAT WHILE FILING THE ORIGIN AL RETURN OF INCOME, THE ABOVE AMOUNT WAS WRONGLY ENTERED AS PROFIT INSTEAD OF RS. NIL. THEREAFTER, REVISED RETURN OF INCOME WAS FILED. THUS, THE LD. COUNSEL SUPPORTS THE ORDER PASSED BY THE LD. CIT(A). 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESE NTATIVE (DR) SUBMITS THAT THE REVISED RETURN OF INCOME FILED ON 17.02.2018 WAS NOT THE VALID RETURN OF INCOME AS PER SECTION 139(5). THE ASSESSEE HAS NOT FILED THE VIKUNJ ENTERPRISES PVT. LTD. ITA NO. 1789/MUM/2018 4 REVISED RETURN OF INCOME AGAINST THE RETURN FILED U/S. 139(1) OR IN RESPONSE TO THE NOTICE I SSUED U/S. 142(1). THEREFORE, THE LD. DR SUBMITS THAT IT WAS A INVALID RETURN AND THEREFORE THE ORDER PASSED BY THE AO BE RESTORED. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE APP ELLANT FILED ITS ORIGINAL RETURN OF INCOME ON 16.02.2015 DECLARING INCOME AT RS.1,28,42,730/ - . THEREAFTER, ON THE VERY NEXT DAY, IT FILED THE REVISED RETURN DECLARING THE TOTAL INCOME AT RS. NIL. DURING THE ASSESSMENT PROCEEDING BEFORE THE AO, THE APPELL ANT EXPLAINED THAT THERE WAS A PUNCHING ERROR WHILE FILING RETURN IN E - FILING PORTAL. ALSO, IT WAS SUBMITTED BY THE APPELLANT THAT THE ACCOUNTANT DEALING WITH IT, HAS ERRONEOUSLY INSERTED FIGURE OF 12842725 IN THE COLUMN AMOUNTS DEBITED TO THE PROFIT AN D LOSS ACCOUNT, TO THE EXTENT DISALLOWABLE U/S 40A (8AI OF PART - OI) IN ROW NO. 16 IN SCHEDULE BP OF THE RETURN FORM. AS A RESULT OF THE ABOVE ERROR; THE ENTRY IN ROW NO. D OF SCHEDULE BP CAME TO BE REFLECTED AS 12852040. THIS RESULTED IN SHOWING TOTAL INC OME AT. RS.1,28,42,730/ - . WE FIND THAT IN THE INSTANT CASE THERE WAS NO INCOME FOR THE IMPUGNED ASSESSMENT YEAR AND AS A RESULT OF PUNCHING ERROR, AN AMOUNT OF RS.1,28,42,730/ - WAS ENTERED IN THE RETURN OF INCOME FILED ON 16.02.2015. THE APPELLANT REALI ZED THE MISTAKE AND IMMEDIATELY CORRECTED IT BY FILING A REVISED OF RETURN OF 17.02.2015. ALSO, REVISED COMPUTATION INCOME WAS FILED IN SUPPORT OF THE REVISED RETURN OF INCOME. THE ABOVE MISTAKE, BEING A PUNCHING ERROR, WE UPHOLD THE ORDER OF THE LD. CIT (A). VIKUNJ ENTERPRISES PVT. LTD. ITA NO. 1789/MUM/2018 5 8. IN THE RESULT, THE APPEALED FILED BY THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN COURT ON 30 .04.2019 . SD/ - SD/ - (SANDEEP GOSAIN) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 30/04/2019 SUBHANKAR SAMANTA, P.S. (ON TOUR) COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (PRIVATE SECRETARY) ITAT, MUMBAI