DCIT, CIRCLE-1, Nagpur V. M/S LEELA VENTURES INDIA PVT. LTD., Nagpur

ITA 395/NAG/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1603 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 07-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALLIK
• Keywords: Revised return
• Section: 143(3)

Judgement Text

1 ITA NO. 395/NAG/2012 IN TH E INCOME TAX APPELLATE TRIBUNAL: NAGPUR BENCH : NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER. I.T.A. NO.395/NAG/2012 ASSESSMENT YEAR: 2009 - 10 DY. COMMISSIONER OF INCOME - TAX, M/S. LEELA VENTURES INDIA PVT. CIRCLE - 1, 5 TH FLOOR, MECL BUILDING, VS LTD., PLOT NO.41 - A, LEELA HOUSE SEMINARY HILLS, NAGPUR - 06. AMBAZARI LAYOUT, NAGPUR - 10 PAN AA B CL1140Q . APPELLANT RESPONDENT APPELLANT BY: SMT. SUMAN MALLIK RESPONDENT BY: NONE DATE OF HEARING : 16 - 1 1 - 2015 DATE OF PRONOUNCEMENT: 18 NOV., 2015 O R D E R PER MUKUL K. SHRAWAT, J.M. THIS IS AN APPEAL FILED BY THE REVENUE DEPARTMENT EMANATING FROM AN ORDER OF THE LEARNED CIT (A) - I, NAGPUR DATED 26 - 09 - 2012. THE REVENUE HAS RAISED THE FOLL OWING GROUNDS: - 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN DIRECTING THE AO TO TAKE COGNIZANCE OF REVISED RETURN EVEN WHEN THE MANDATORY ITR - V FORM WAS NOT FURNISHED WITHIN TIME TO THE CENTRAL PROCESSING CENTRE BY THE ASS ESSEE AS PER THE BOARD CIRCULAR NO.2/2009 DT. 21.05.2009. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) ERRED IN GIVING RELIEF TO THE ASSESSEE RELYING ON T HE DECISION OF BOMBAY HIGH COURT IN THE CASE OF CRAWFORD BAYLEY & CO. VS. UNIO N OF INDIA 343 ITR 232 (BOM) EVEN WHEN THE FACTS OF THE ASSESSEES CASE ARE ENTIRELY DIFFERENT. 2 ITA NO. 395/NAG/2012 2. FACTS IN BRIEF AS EME RGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S 143(3) OF THE IT ACT DATED 29 - 12 - 2012 WERE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF TRADING OF DRUGS AND PHARMACEUTICALS. THE ASSESSEE HAS FURNISHED E - RETURN OF INCOME ON 30 - 09 - 2009 DECLARING INCOME OF RS.4,69,75,750/ - . AN ASSESSMENT WAS MADE BY MAKING A DISALLOWANCE OF INTEREST U/S 36(1) (III) OF THE IT ACT OF RS.10,00,000/ - . IT IS WORTH TO MENTION THAT THE AO HAD COMPUTED THE TAXABLE INCOME ON THE BASIS OF THE INCOME DECLARED AS PER THE E - RETURN. HOWEVER, THE ASSESSEE HAS FILED AN APPEAL BEFORE THE LEARNED CIT(A) BY RAISING A GROUND THAT A REVISED RETURN WAS FILED ON 29 - 03 - 20 10 DECLARING REVISED INCOME AT RS.2,75,85,782/ - . THIS ISSUE WAS ADJUDICATED BY THE LEARNED CIT ( A) IN THE FOLLOWING MANNER: - 6. I HAV E CAREFULLY CONSIDERED THE ISSUE BEFORE ME. IT IS SEEN THAT APPELLANT HAS STATED THAT THE REVISED RETURN HAS BEEN E - FILED AND DULY ACKNOWLEDGED VIDE E - FILING ACKNOWLEDGEMENT NO. 116675520290310 ON 29 - 03 - 2010. HOWEVER IT IS NOT EVIDENT THAT ITR - V HAS ALSO BEEN FURNISHED WITHIN THE TIME PRESCRIBED WHICH IS A PREREQUISITE FOR THE RETURN TO BE TREATED AS A VALID RETURN. THE CBDT HAS VIDE CIRCULAR NO.3/2009 DT. 21.5.2009 CLARIFIED AS FOLLOWS: - HOWEVER, IF THE ASSESSEE DOES NOT USE A DIGITAL SIGNATURE FOR ELECTRONICALLY TRANSMITTING THE DATA, HE IS REQUIRED TO FOLLOW UP THE ELECTRONIC TRANSMISSION OF THE DATA BY SUBMITTING THE FOR M ITR - V WITH THE INCOME TAX DEPARTMENT AS VERIFICATION OF THE ELECTRONIC FILING OF THE RETURN. IN SUCH A CASE, THE DATE OF TRANSMITTING THE DATA ELECTRONICALLY WILL BE THE DATE OF FURNISHING THE RETURN IF THE FORM ITR - V IS FURNISHED WITHIN THIRTY DAYS AFTE R THE DATE OF TRANSMITTING THE DATE ELE CTRONICALLY. IN CASE, FORM ITR - V IS FURNISHED AFTER THE ABOVE MENTIONED PERIOD, IT WILL BE DEEMED THAT THE RETURN IN RESPECT OF WHICH THE FORM ITR - V HAS BEEN FILED WAS NEVER FURNISHED AND IT SHALL BE INCUMBENT ON THE ASSESSEE TO ELECTRONICALLY RETRANSMIT THE DATA AND FOLLOW IT UP BY SUBMITTING THE NEW FORM ITR - V WITHIN THIRTY DAYS. 6.1 IT IS THEREFORE CLEAR THAT IN T HE ABSENCE OF EVIDENCE THAT ITR - V HAS BEEN FILED WITHIN THE STATUTORY TIME, THE REVISED RETURN IS TO B E TREATED AS 3 ITA NO. 395/NAG/2012 NON - EST. BEFORE ME APPELLANT HAS NOT STATED THE REASONS THAT NECESSITATED THE FILING OF THE REVISED RETURN DUE TO WHICH INCOME HAS BEEN DISCLOSED AS RS.4,69,75,750/ - IN THE ORIGINAL RETURN AS AGAINST RS.2,75,85,782/ - IN THE REVISED RETURN. HOW EVER IN A RECENT DECISION OF THE BOMBAY HIGH COURT IN THE CASE OF CRAWFORD BAYLEY & COMPANY VS. UNION OF OTHERS IN WRIT PETITION NO.2004 OF 2001 DATED 01 - 12 - 2011 FOR AY 2009 - 10 IT HAS BEEN HELD THAT ITR CANNOT BE TREATED AS INVALID, MERELY BECAUSE ITR - V I S NOT RECEIVED AT CPC, IF THERE IS NO FAILURE ON THE PART OF THE ASSESSEE. THOUGH THE INCOME TAX DEPARTMENT MADE A PROVISION FOR ELECTRONIC FILING OF RETURNS, IT APPEARS THAT THE ITR - V FORM CONTAINING THE DUE VERIFICATION OF THE RETURN OF THE ASSESSEE WAS REQUIRED TO BE REMITTED ONLY BY ORDINARY POST. THE INSTRUCTIONS WHICH WERE FURNISHED TO THE ASSESSEES, A COPY OF WHICH HAS BEEN PLACED ON RECORD, SPECIFICALLY STIPULATE THAT THE ITR - V FORM SHOULD NOT BE SENT EITHER BY REGISTERED POST OR BY SPEED POST OR CO URIER. THE ASSESSEE HAS FURNISHED ADEQUATE MATERIAL BEFORE THE COURT IN SUPPORT OF ITS CONTE NTION THAT HAVING FILED T HE RETURN ELECTRONICALLY, IT HAD ALSO SUBMITTED THE ITR - V FORM BY ORDINARY POST. THE ASSESSEE HAS DONE SO ON 5 APRIL 2010, 18 MAY 2010 AND 18 NOVEMBER 2010. IN THAT VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE COMMUNICATION ISSUED BY THE INCOME TAX DEPARTMENT ON 21 MARCH 2011 IS THOROUGHLY MISCONCEIVED. 6.2 KEEPING IN VIEW THE ABOVE JUDICIAL PRONOUNCEMENT IT WOULD BE NECESSARY TO SUBJECT TO TAX ONLY THE CORRECT INCOME OF THE APPELLANT. IN THE PRESENT CASE THE AO HAS NOT TAKEN COGNIZANCE OF THE REVISED RETURN BECAUSE IT IS NOT AVAILABLE IN THE SYSTEM DUE TO A PROBABLE TECHNICAL GLITCH. IT WOULD HOWEVER IN THE INTEREST OF JUSTICE THAT THE AO ADOPT THE CORRECT FIGURE OF THE INCOME RETURN. I THEREFORE DIRECT THE AO TO ADOPT THE CORRECT FIGURE OF TOTAL INCOME AFTER DUE VERIFICATION. THIS GROUND IS THEREFORE DISPOSED OF ACCORDINGLY. 3. ON THE DATE OF HEARING, NO ONE HAS APPEARED FROM THE SIDE OF THE RESPONDENT ASSESSEE. EVEN, IN THE PAST, THIS APPEAL REMAINED UNREPRESENTED FROM THE SIDE OF THE RESPONDENT ASSESSEE. CONSIDERING THE ISSUE INVOLVED AND THE TOTALITY OF THE CIRCUMSTANCES, WE HAVE DECIDED TO PROCEED TO ADJUDICATE THE MATTER EX - PARTE QUA THE ASSESSEE AFTER HEARING THE LEARNED DR, SMT. SUMAN MALLIK. THE LEARNED DR HAS CONTESTED THAT THE DECISION OF THE HONBLE BOMBAY HIGH COURT WAS NOT CORRECTLY RELIED UPON BY THE LEARNED CIT ( A). SHE HAS ALSO PLACED BEFORE US THE CONTENTS OF CBDT CIRCULAR NO.3/2009 DATED 21 - 05 - 2009. 4 ITA NO. 395/NAG/2012 4. AFTER HEARING THE SUBMISSIONS OF THE LEARNED DR, WE ARE OF THE CONSIDERED OPINION THAT THERE WAS NO FALLACY IN THE DECISION OF THE LEARNED CIT ( A). THE UNDISPUTED FACT WAS THAT THE ORIGINAL RETURN WAS FILED ON 30 - 09 - 2009 DE CLARING INCOME AT RS.4,69,75,750/ - . LA TER ON, THAT RETURN WAS ELECTRO NIC ALLY REVISED ON 29 - 09 - 2010 AT RS .2,75,85,782/ - . THE RETURN WAS ORIGINALLY PROCESSED U/S 143(1) OF THE IT ACT AND LATER ON, SELECTED FOR SCRUTINY BY ISSUING A NOTICE U/S 143(2) OF THE IT ACT. ON THAT BASIS, THE CASE WAS SCRUTINISED AND THE ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT, WHEREIN, A DISALLOWANCE OF INTEREST U/S 36(1) (III) OF THE IT ACT WAS MADE. CONSIDERING THE MODE AND MANNER IN WHICH THE RETURN WAS FILED, THE LEARNED C IT ( A) HAS THOUGHT IT PROPER TO ASK THE AO TO TAKE COGNIZ ANCE OF THE REVISED RETURN AND COMPUTE THE CORRECT FIGURE OF THE INCOME ASSESSED. IT IS NOT THE CASE OF THE REVENUE DEPARTMENT THAT THE REVISED RETURN WAS NOT A BONA - FIDE RETURN OR THE INCOME DECLARED AS PER TH E REVISED RETURN WAS NOT A CORRECT FIGURE. APPRECIATING THE CIRCUMSTANCES OF THE CASE, WE HEREBY UPHOLD THE FINDINGS OF THE LEARNED CIT (A). WE HAVE ALSO RESPECTFULLY PERUSED THE ORDER OF THE HONBLE BOMBAY HIGH COURT AS WELL AS THE CBDT CIRCULAR AND THERE UPON CAME TO THE CONCLUSION THAT A CORRECT FIGURE OF THE ASSESSED INCOME WAS TO BE ADOPTED BY THE AO. ACCORDINGLY, WE HEREBY CONFIRM THE SAME AND DISMISS BOTH THE GROUNDS OF REVENUES APPEAL. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED. ORDER PR ONOUN CED IN THE OPEN COURT ON THIS 18 DAY OF NOV., 2015. SD/ - SD/ - (SHAMIM YAHYA) (MUKUL K. SHRAWAT) ACCOUNTANT MEMBER JUDICIAL MEMBER NAGPUR, DATED: 18 TH NOV., 2015. LAKSHMIKANT DEKA/SR. PS 5 ITA NO. 395/NAG/2012 COPY FORWARDED TO : 1. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE - 1, NAGPUR 2. M/S. LEELA VENTURES INDIA PVT. LTD., PLOT NO.41 - A, LEELA HOUSE, AMBAZARI LA YOUT, NAGPUR. 3. C.I.T., CONCERNED 4. CIT ( APPEALS) - I, NAGPUR. 5. D.R., ITAT, NAGPUR. 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR. DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 16.11.2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 17.11.2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECO ND MEMBER 17.11.2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 17.11.2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 17.11.2015 SR.PS 6. DATE OF PRONOUNCEMENT 18.11.2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 20.11.2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DAT E OF DISPATCH OF ORDER