D.C.I.T.-22(2), NAVI MUMBAI V. ASHTAVINAYAK ENTERPRISES, MUMBAI

ITA 2556/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84356 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Department
• Bench Allotted: A
• Next Hearing Date: 28-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2012
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: M SUBRAMANIAN
• Keywords: Opportunity of being heard; Revised return
• Section: 139(5); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO. 2556/M/2012 ( AY: 2008 - 2009 ) DCIT - 22(2), 4 TH FLOOR, TOWER NO.6, VASHI RAILWAY STATION COMPLEX, VASHI, NAVI MUMBAI. / VS. M/S. ASHTAVINAYAK ENTERPRISES, C/17, RAJRAJESHWARI APARTMENT, NAYARAN NAGAR, LBS MARG, GHATKOPAR (W), MUMBAI 40 086. ./ PAN : AAGFA 8847 F ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ASGHAR ZAIN / RESPONDENT BY : SHRI M. SUBRAMANIAN / DATE OF HEARING : 29.10.2014 / DATE OF PRONOUNCEMENT : 26 .11.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE REVENUE ON 16.4.2014 IS AGAINST THE ORDER OF THE CIT (A) - 33, MUMBAI DATED 6.2.2012 FOR THE ASSESSMENT YEAR 2008 - 2009. 2. IN THIS APPEAL, REVENUE RAISED THE FOLLOWING GROUNDS WHICH READ AS UNDER: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED ON FACTS AND IN LAW IN HOLDING THE REVISED RETURN FILED ON 21.12.2010 DURING THE SCRUTINY ASSESSMENT PROCEEDINGS SHOULD BE TAKEN NOTE OF WITHOUT APPRECIATING THE FACT THAT IT WAS NOT A VALID REVISED RETURN WITHIN THE MEANING OF SECTION 139(5) OF THE INCOME TAX ACT, 1961. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO COMPUTE THE TOTAL INCOME BA SED ON THE MATERIAL FURNISHED WITH THE REVISED RETURN FILED ON 21.12.2010 WITHOUT APPRECIATING THE FACT THAT THE SO CALLED REVISED RETURN WAS FILED AFTER THE INITIATION OF ASSESSMENT PROCEEDINGS U/S 143(2) AND BEYOND THE TIMEFRAME PROVIDED IN SECTION 139 (5) OF THE ACT. 2 3. BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME ORIGINALLY ON 28.9.2008 DECLARING THE TOTAL INCOME OF RS. 12,90,500/ - AFTER CLAIMING A DEDUCTION U/S 80IB(10) OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, ASSESSEE SUBMITTED THE DETAILS ABOUT THE SALES, OPENING STOCK ETC WHICH ARE COMPLETELY DIFFERENT FROM THE CLAIMS MADE IN T HE RETURN OF INCOME. ASSESSEE PLEADED THAT THERE ARE UNINTENTIONAL CLERICAL MISTAKES IN THE FIGURES . T HEREFORE, THE REVISED RETURN OF INCOME WAS FILED ON 21.12.2010 INCORPORATING THE CORRECT FIGURES . ASSESSING OFFICER DISALLOWED THE CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT AND COMPLETED THE ASSESSMENT DETERMINING THE TOTAL INCOME OF AT RS. 48,36,420/ - AGAINST THE RETURNED INCOME OF 12,90,500/ - . IN THE PROCESS, ASSESSING OFFICER REJECTED THE REVISED RETURN OF INCOME. MATTER TRAVELLED TO THE FIRST AP PELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE MADE VARIOUS WRITTEN SUBMISSIONS RECONCILING THE FIGURES OF DIFFERENCE IN SALES AND OTHER ACCOUNTS AND EXPLAINED TO THE CIT (A) ABOUT THE GENUINENESS OF THE ASSESSE ES CLAIM OF DEDUCTION U/S 80IB(10) OF THE ACT. CIT (A) CONSIDERED THE SAME AND PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. HOWEVER, CIT (A) HAS NOT REMANDED THE ISSUES AND RECONCILIATIONS TO THE FILE OF THE ASSESSING OFFICER BEFORE THE DECISION IS TAKEN BY HIM. AGGRIEVED WITH THE ABOVE ORDER OF THE CIT (A), REVENUE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUNDS. 5. DURING THE PROCEEDINGS BEFORE US, THE LD DR SUBMITTED THAT THE REVISED RETURN , WHICH WAS FILED BELATEDLY , WAS CONSID ERED BY THE CIT (A) WITHOUT CONSIDERING THE FACT THAT IT WAS AN INVALID RETURN WITHIN THE MEANING OF SECTION 139(5) OF THE ACT AND WITHOUT REMANDING TO AO . HE RELIED ON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, LD COUNSEL FOR THE ASSESSEE ARGUED BY STATING THAT THE ASSESSEE FREE TO RAISE FRESH ISSUES BEFORE THE CIT (A) . IN THAT CASE, AT THE MAXIMUM , THE MATTER CAN BE REMANDED TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDERATION AND DECISION IN THE MATTER RELATING TO THE DISCREPANCY IN THE FIGURES. HE ALSO MENTIONED THAT THE CLAIM OF DEDUCTION WAS VALIDLY MADE IN THE RETURN OF INCOME FILED ORIGINALLY ON 28.9.2008 THEREFORE, THE CLAIM OF THE ASSESSEE IS PROPER. 3 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE A UTHORITIES AS WELL AS THE RELEVANT MATERIAL PLACED BEFORE US. ON HEARING BOTH THE PARTIES AND ON PERUSAL OF THE PAPERS FILED BEFORE US, WE FIND THAT THERE IS NO DISPUTE ON THE FACTS. THE ONLY DEBATE IS ON THE DECISION OF THE CIT (A) IN ENTERTAINING THE C LAIMS MADE IN THE REVISED RETURN OF INCOME WITHOUT REMANDING THE MATTER TO THE ASSESSING OFFICER. AFTER CONSIDERING THE CONCURRENCE OF BOTH THE PARTIES IN MATTERS OF REMA NDING, WE SET ASIDE THE DECISION OF THE CIT (A) AND REMAND THE ISSUES TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION AFTER GRANTING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ASSESSING OFFICER SHALL NOTE THAT IT IS A SETTLED LEGAL PROPOSITION THAT THE ASSESSEE IS ALLOWED TO RAISE FRESH ISSUES EMANATING FROM THE ORDER OF THE ASSESSING OFFICER BEFORE THE CIT (A). ACCORDINGLY, GROUNDS RAISED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRO NOUNCED IN THE OPEN COURT ON 2 6 T H NOVEM BER, 2014. S D / - S D / - ( SANJAY GARG ) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 2 6 /11/2014 . . ./ OKK , SR. PS / 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 //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR ) , / ITAT, MUMBAI