Agri Gold Constructions Pvt.Ltd., Vijayawada V. THE DCIT, CIRCLE - 2(1), Vijayawada

ITA 276/VIZ/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85486 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 6 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-11-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Keywords: Revised return
• Section: 143(3); 142(1); 139(5); 148; 263

Judgement Text

ITA NO.276/VIZAG/2014 AGRIGOLD CONSTRUCTIONS PVT. LTD., VIJAYAWADA IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER ITA NO.276/VIZAG/2014 ASSESSMENT YEAR : 2009-10 AGRI GOLD CONSTRUCTIONS PVT. LTD. VIJAYAWADA VS. DCIT CIRCLE-2(1) VIJAYAWADA (APPELLANT) (RESPONDENT) PAN NO.AADCA 5210E ASSESSEE BY: SHRI G.V.N. HARI, CA REVENUE BY: SHRI K.V.N. CHARYA, DR DATE OF HEARING : 26.11.2014 DATE OF PRONOUNCEMENT : 26.11.2014 ORDER PER D. MANMOHAN, VICE PRESIDENT:- THIS APPEAL BY THE ASSESSEE-COMPANY IS DIRECTED AG AINST THE ORDER PASSED BY THE CIT U/S 263 OF THE INCOME-TAX ACT, 19 61. THE ASSESSEE CHALLENGES THE JURISDICTION OF THE COMMISSIONER TO EXERCISE THE POWERS U/S 263 OF THE ACT AFTER THE EXPIRY OF THE PERIOD OF LI MITATION, RECKONED FROM THE DATE OF ORIGINAL ASSESSMENT ORDER AND ALSO SUBMITS THAT THE SUBSEQUENT ASSESSMENT ORDER IS NOT A VALID ORDER IN THE EYES O F LAW, IN WHICH EVENT NO PROCEEDING CAN BE INITIATED U/S 263 OF THE ACT RECK ONED FROM THE DATE OF PASSING OF SUBSEQUENT ASSESSMENT ORDER. 2. FACTS NECESSARY FOR THE DISPOSAL OF THE APPEAL A RE STATED IN BRIEF. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF REAL ESTATE AND CONSTRUCTION. IN RESPECT OF THE PREVIOUS YEAR RELEVANT TO THE ASSESS MENT YEAR 2009-10, THE ASSESSEE COULD NOT FILE A RETURN OF INCOME WITHIN T HE TIME PRESCRIBED U/S 139(1) OF THE ACT; THE RETURN OF INCOME WAS FILED O N 28.2.2010 WHICH CAN BE CONSIDERED AS A RETURN FILED U/S 139(4) OF THE ACT. IT IS WELL SETTLED THAT A REVISED RETURN CAN BE FILED U/S 139(5) OF THE ACT O NLY WHEN ORIGINAL RETURN ITA NO.276/VIZAG/2014 AGRIGOLD CONSTRUCTIONS PVT. LTD., VIJAYAWADA 2 WAS FILED WITHIN THE TIME PRESCRIBED U/S 139(1) OF THE ACT OR IN RESPONSE TO THE NOTICE ISSUED U/S 142(1) OF THE ACT. IN OTHER WORDS, THE ACT DOES NOT PERMIT AN ASSESSEE TO FILE A REVISED RETURN IN A CA SE WHERE THE ORIGINAL RETURN IS FILED WITHIN THE PERIOD PRESCRIBED U/S 139(4) OF THE ACT. HOWEVER, IN THE INSTANT CASE, THE ASSESSEE SOUGHT TO RECTIFY HIS OR IGINAL RETURN AND ACCORDINGLY FILED THE PAPERS ON 19.8.2010 BY CAPTIONING IT AS A REVISED RETURN. IT CAN NEITHER BE CONSIDERED AS A RETURN FILED U/S 139(4) NOR 139(5) OF THE ACT AND IF THE ASSESSING OFFICER WISHES TO TAKE COGNIZANCE OF CERTAIN MATERIALS PLACED THEREIN, HE OUGHT TO HAVE REGULARIZED THE SAME BY I SSUING A NOTICE U/S 148 OF THE ACT BUT NO SUCH ACTION WAS TAKEN. THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 22.2.2011 DETERM INING THE TOTAL INCOME AT RS.7.37 CRORES. LATER ON, THE REVISED RETURN WA S SELECTED BY CASS BUT EVEN AT THIS STAGE, THE ASSESSING OFFICER OVERLOOKE D THE FACT THAT IT WAS NOT A VALID RETURN AND THE ASSESSMENT WAS COMPLETED U/S 1 43(3) OF THE ACT ON 8.11.2011. THE SECOND ORDER PASSED BY THE ASSESSIN G OFFICER WAS SOUGHT TO BE REVIEWED BY THE COMMISSIONER IN EXERCISE OF THE POWERS VESTED IN HIM U/S 263 OF THE ACT. 3. THE ASSESSEE CHALLENGED THE JURISDICTION OF THE REVISIONAL AUTHORITY ON THE GROUND THAT REVISED RETURN IS NOT A VALID RETUR N AND HENCE THE ASSESSMENT MADE CONSEQUENT THERETO HAS NO LEGS TO STAND, IN WH ICH EVENT THERE CANNOT BE ANY PROCEEDING U/S 263 OF THE ACT AGAINST SUCH A SSESSMENT ORDER WHICH IS VOID-AB-INITIO. THE LD. CIT WAS HOWEVER OF THE OPI NION THAT THE SUBSEQUENT ORDER PASSED BY THE ASSESSING OFFICER MERGES WITH T HE EARLIER ORDER PASSED BY THE AO. THE SUBSEQUENT ORDER CAN BE TREATED AS A V ALID ORDER AND THEREFORE FALLS WITHIN THE JURISDICTION OF THE COMMISSIONER U /S 263 OF THE ACT. 4. AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. LD. COUNSEL ADVERTED OUR ATTENTION TO THE RESPECTIVE DATES OF FILING THE ORI GINAL RETURN AND THE ALLEGED REVISED RETURN AND ALSO THE DATES OF PASSING THE RESPECTIVE ASSESSMENT ORDERS TO SUBMIT THAT THOUGH THE ORIGINAL ASSESSMEN T ORDER IS IN ACCORDANCE WITH LAW, THE SUBSEQUENT ASSESSMENT ORDER HAS NO LE GS TO STAND BECAUSE IT WAS NOT REGULARISED BY ISSUING A NOTICE U/S 148 OF THE ACT, IN WHICH EVENT IT ITA NO.276/VIZAG/2014 AGRIGOLD CONSTRUCTIONS PVT. LTD., VIJAYAWADA 3 CANNOT BE TREATED AS A VALID RETURN; WHEN THE RETUR N ITSELF IS INVALID, THE ASSESSMENT FRAMED BASED ON SUCH INVALID RETURN CANN OT BE TREATED AS A VALID ASSESSMENT ORDER IN THE EYE OF LAW. WHEN THERE IS NO ASSESSMENT ORDER IN THE EYE OF LAW, THE REVISIONAL AUTHORITY CANNOT ACQ UIRE JURISDICTION U/S 263 OF THE ACT AND IN THIS REGARD, HE REFERRED TO THE PLAI N LANGUAGE OF THE SECTION TO SUBMIT THAT THE COMMISSIONER IS COMPETENT TO CONSI DER AN ORDER PASSED BY THE ASSESSING OFFICER AND ORDER, PER SE, MEANS A VALID ORDER AND NOT AN ORDER WHICH CAN BE TREATED AS NULLITY IN THE EYE OF LAW. 5. WE HAVE HEARD THE LD. D.R. IN THIS REGARD AND CA REFULLY PERUSED THE RECORD. THE PRINCIPAL COMMISSIONER OR THE COMMISSI ONER OF INCOME-TAX IS ENTITLED TO CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT, U/S 263 OF THE ACT, TO VERIFY AS TO WHETHER ANY ORD ER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVEN UE. THE PRE-REQUISITE TO EXERCISE SUCH JURISDICTION IS THAT THERE SHOULD BE A VALID ORDER PASSED BY THE ASSESSING OFFICER. IN THE INSTANT CASE, THE ALLEGE D REVISED RETURN CANNOT BE TREATED AS A RETURN IN THE EYE OF LAW, IN WHICH EVE NT SELECTION OF SUCH REVISED RETURN BY A COMPUTERIZED ASSISTED SCRUTINY SOFTWAR E IS IN ITSELF WRONG AND THE ASSESSMENT MADE ON THE STRENGTH OF SUCH SELECTION, WITHOUT FORMALISING THE RETURN BY ISSUING A NOTICE U/S 148 OF THE ACT MAKES THE ASSESSMENT NULL AND VOID. AN ORDER WHICH IS PER SE VOID CANNOT BE TAKE N UP BY THE REVISIONAL AUTHORITY IN AS MUCH AS THE JURISDICTION OF THE COM MISSIONER IS ONLY TO VERIFY THE ASSESSMENT MADE IN THE ORDINARY COURSE OF LAW A ND NOT CONTRARY TO LAW. SUFFICE TO SAY THAT THE ASSESSMENT FRAMED IN THIS C ASE BEING CONTRARY TO LAW, THE COMMISSIONER OF INCOME-TAX IS NOT COMPETENT TO EXERCISE THE JURISDICTION U/S 263 OF THE ACT. UNDER THESE CIRCUMSTANCES, WE QUASH THE PROCEEDINGS U/S 263 OF THE ACT AND ALLOW THE APPEAL FILED BY THE ASSESSEE-COMPANY. 6. PRONOUNCED ACCORDING IN THE OPEN COURT ON 26 TH NOVEMBER14. SD/- SD/- (J. SUDHAKAR REDDY) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT VG/SPS VISAKHAPATNAM, DATED 26 TH NOVEMBER, 2014 ITA NO.276/VIZAG/2014 AGRIGOLD CONSTRUCTIONS PVT. LTD., VIJAYAWADA 4 COPY TO 1 AGRI GOLD CONSTRUCTIONS PVT. LTD., D.NO.40-6-3, 3 RD FLOOR, N.S. RAO STREET, OLD REVENUE COLONY, LABBIPET, VIJAYAWADA 2 DCIT CIRCLE-2(1), VIJAYAWADA 3 THE CIT, VIJAYAWADA 4 THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM