Jaladi Subba Rao, Chirala V. THE ACIT,

ITA 464/VIZ/2014

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9665 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 28-07-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: R.S. ARAVINDHAKSHAM
• Keywords: Business income; Period of limitation; Revised return; Capital Gains
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 139(5); 143(1); 201; 139(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM SMC BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO , HONBLE JUDICIAL MEMBER ITA NO. 464 / VIZ /201 4 (ASST. YEAR : 20 11 - 1 2 ) JALADI SUBBA RAO, 14 - 15 - 13/2, BEHIND BVS MARKET, CHIRALA , PRAKASAM DISTRICT. VS. ACIT, CPC, BANGALORE. PAN NO. ABFPJ 6621 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI D.L. NARASIMHA RAO ADV. DEPARTMENT BY : SHRI R.S. ARAVINDHAKSHAM - DR DATE OF HEARING : 15 / 1 2 /201 6 . DATE OF PRONOUNCEMENT : 21 / 12 /201 6 . O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , GUNTUR , DATED 0 6 /0 6 /201 4 FOR THE ASSESSMENT YEAR 2011 - 12. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS AN INDIVIDUAL, DERIVING INCOME FROM HOUSE PROPERTY, BUSINESS , CAPITAL GAINS AND OTHER SOURCES, FILED HIS RETURN OF INCOME BELATEDLY BY ADMITTING THE TOTAL INCOME OF RS. 2,03,840/ - . THE RETURN FILED BY THE ASSESSEE WAS PROCESSED UNDER SECTION 143(1) BY DETERMI NI NG THE TOTAL INCOME OF RS.7,74,310/ - . SUBSEQ U ENTLY, THE ASSESSEE FILED A REVISED RETURN BY CHAN GING THE COMPUTATION OF INCOME I.E. THE INCOME SHOWN FROM OTHER SOURCES AS PER REVISED RETURN, HE C L AIMED IT AS A BUSINESS INCOME . THE REVISED RETURN FILED BY THE ASSESSEE WAS NOT CONSIDERED BY THE CENTRALIZED PROCESSING CENTRE ( CPC ) , BANGALORE FOR THE REASON THAT THE 2 ITA NO. 464 / VIZ /201 4 ASSESSEE FILED A RETURN OF INCOME UNDER SECTION 139(4), THE ASSESSEE IS NOT ENTIT L ED T O FILE A REVISED RETURN UNDER SECTION 139(5) OF THE ACT. 3 . THE ASSESSEE CARRIED THE MATTER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS), WHO BY FOLLOWING THE CBDT INSTRUCTION NO. 888, DATED 01/10/1975 , UPHELD THE ORIGINAL RETURN PROCESSED BY CPC, BANGALORE AND REJECTED THE CLAIM MADE UNDER REVISED RETURN. THE RELEVANT PORTION OF THE ORDER IS EXTRACTED AS UNDER: - 5. I HAVE PERUSED THE ORIGINAL RETURN OF INCOME AS WELL AS THE REVISED RETURN FILED BY THE APPELLANT AND THE SUBMISSIONS MADE BY HIM. THE ORIGINAL RETURN OF INCOME WAS FILED BELATEDLY ON 29.09.2011 AND HENCE FALLS WITHIN THE PROVISIONS OF SECTION 139(4). CBDT'S INSTRUCTION NO.888 DATED 01.10.1975 STATES AS UNDER: A PERSON WHO HAS NOT FILED A RETURN OF INCOME WI THIN THE TIME ALLOWED TO HIM UNDER SUB - SECTION (1) OR SUB - SECTION (2) OF SECTION 139 OF THE ACT, BUT FILES A RETURN OF INCOME UNDER SECTION 139(4) IS NOT ENTITLED TO FILE A REVISED RETURN UNDER SECTION 139(5) OF THE ACT. SUCH A RETURN OF INCOME CANNOT ALSO BE TAKEN INTO CONSIDERATION FOR THE PURPOSES OF COMPUTING THE PERIOD OF LIMITATION UNDER SECTION 153(1)(C) OF THE ACT, AND THEREFORE, THE EXTENDED TIME LIMIT OF ONE YEAR UNDER SECTION 153(1)(C) WILL NOT BE AVAILABLE IN RESPECT OF A REVISED RETURN OF INCOM E PURPORTED TO HAVE BEEN FILE D UNDER SECTION 139(5) WHERE ORI GINALLY THE RETURN WAS FILLED UNDER SECTION 139(4). 6. THE HON'BLE SUPREME COURT IN THE CASE OF KUMAR JAGDISH CHANDRA SINHA V. COMMISSIONER OF INCOME TAX (1996) 220 ITR 0067, HAS ALSO HELD THAT 'NO REVISED RETURN CAN BE FILED UNDER SUB - SECTION (5) OF SECTION 139 IN A CASE WHERE THE RETURN IS FILED UNDER SECTION 139(4)'. 7. HENCE, THE APPELLANT'S REVISED RETURN FILED ON 04.03.2013 IS NON EST AND COGNIZANCE OF THE SAME CANNOT BE TAKEN. THUS, THE AP PELLANT'S APPEAL HAS TO BE DECIDED ON THE BASIS OF THE ORIGINAL RETURN FILED ON 29.09.2011. IN THIS RETURN, THE APPELLANT HAS MADE ERRORS WHILE FILLING THE RETURN OF INCOME. IN SCHEDULE OS, WHILE COMPUTING INCOME FROM OTHER SOURCES, THE APPELLANT HAS SHOWN LOSS ON ACCOUNT OF INTEREST AT RS.5,70,468/ - WHILE HE HAS SHOWN GROSS OTHER INCOME AT RS.8,36,101/ - AND AS PER ITEM I.E. THE FIGURE REFLECTED IS RS.2,65,633/ - . AGAINST THE SAME, IN COLUMN 1 F(I), THE APPELLANT HAS REFLECTED EXPENDITURE AT RS.5,70,468/ - AND INCOME FROM OTHER SOURCES AT COLUMN 1 G HAS BEEN ARRIVED AT ( - )RS.3,04,835. A PERUSAL OF THIS SCHEDULE SHOWS THAT THE APPELLANT'S GROSS INCOME UNDER THE HEAD 'INCOME FROM OTHER S OURCES' IS RS.8,36,101/ - , FROM WHICH HE HAS REDUCED INTEREST AMOUNTING TO RS. 5,70,468/ - , ARRIVING AT A TOTAL OF RS.2,65,633/ - . FURTHER, HE HAS AGAIN CLAIMED DEDUCTION OF RS.5,70,468/ - TO ARRIVE AT A NET LOSS OF RS.3,04,835/ - UNDER THE HEAD 'INCOME REEIN4 OTHER SOURCES'. THIS INDICATES THAT THE APPELLANT HAS CLAIMED OUTGO OF INTEREST OF RS.5,70,468/ - TWICE AGAINST GROSS INCOME OF RS.8,36,101/ - . KEEPING THIS IN VIEW, THE CPC HAS RIGHTLY IGNORED THE REPETITIVE CLAIM OF INTEREST OUTGO AT RS.5,70,468/ - AND ADOPTED 'INCOME FROM OTHER SOURCES' AT RS.2,65,633/ - AS PER COLUMN I.E OF SCHEDULE OS OF THE ORIGINAL RETURN OF 3 ITA NO. 464 / VIZ /201 4 INCOME. HENCE, IN VIEW OF THE ORIGINAL RETURN AND THE PROCESSING CARRIED OUT BY THE CP C, BANGALORE, NO FURTHER INTERVENTION IS CALLED FOR. FURTHER, THE INTIMATION WAS ISSUED ON 09.11.2011 AND THE APPEAL HAS BEEN FILED ON 18.07.2012 I.E., BEYOND TIME, FOR WHICH NO REASONS FOR CONDONATION HAVE BEEN SUBMITTED. HENCE, THE APPEAL IS DISMISSED. 4 . ON BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS HAVING OTHER SOURCE OF INCOME I.E. MONEY LENDING BUSINESS . THE INCOME , ARISING OUT OF MONEY LENDING BUSINESS , ORIGINALLY SHOWN AS INCOME FROM OTHER SOURCES . I N THE REVISED RETURN OF INCOME IT IS TREATED AS BUSINESS INCOME AND SUBMITTED THAT THE REVISED RETURN FILED BY THE ASSESSEE MAY BE ACCEPTED. 5. ON THE OTHER HAND, LEARNED DEPARTMENT AL REPRESENTATIVE SUPPORTED THE ORDERS PASSED BY THE AUTHORITIES BELOW . 6 . I HAVE HEARD THE RIVAL SUBMISSION S , P E RUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE FILED A RETURN OF INCOME BELATEDLY UNDER SECTION 139(4) WHEREIN THE ASSESSEE HAS SHOWN INCOME FROM MONEY LENDING AS INCOME FROM OTHER SOURCES. SUBSEQUENTLY, HE FILED REVISED RETURN UNDER SECTION 139(5) BY TREATING THE MONEY RECEIVED FROM LE N D ING BUSINESS AS INCOME FROM BUSINESS AND SUBMITTED BEFORE THE LOWER AUTHORITIES THAT THE REVISED RETURN MAY BE ACCEPTED. DURING THE COURSE OF HEARING WHEN WE ASKED THE LEARNED COUNSEL FOR THE ASSESSEE WHAT IS THE BASIS FOR TREATING THE MONEY FROM LENDING BUSINESS AS BUSINESS INCOME OF THE ASSESSEE, THE ASSESSEE IS NOT ABLE TO SUBSTANTIATE HIS ARGUMENT BY FILING ANY RELEVANT MATERIAL. IT HAS ALSO NOT BEEN ABLE TO EXPLAIN WHY IT HAS BEEN TREATED AS A BUSINESS INCOME . A PART FROM THAT ONCE THE ASSESSEE HAS FILED A RETURN OF INCOME BELATEDLY UNDER SECTION 139(4), HE CANNOT BE FILED UNDER SECTION 139(5) IN THE LIGHT OF THE CBDT CIRCULAR NO. 888 DATED 01/10/1975 . THE COMMISSIONER OF INCOME TAX (APPEALS) BY FOLLOWING THE CIRCULAR AS WELL A S THE JUDGMENT OF THE HON'BLE SUPREME 4 ITA NO. 464 / VIZ /201 4 COURT IN THE CASE OF KUMAR JAGDISH CHANDRA SINHA V . CIT REPORTED IN (1996) 220 ITR 67 HELD TH A T NO REVISED RETURN CAN BE FILED WHEN THE RETURN IS FILED UNDER SECTION 139(4) OF THE ACT. I FIND THAT THE COMMISSIONER OF INCOME TAX (APPEALS) BY FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT AND ALSO BY CONSIDERING THE CBDT CIRCULAR (SUPRA) , REJECTED THE REVISED RETURN FIELD BY THE ASSESSEE AND UPHELD THE ORDER PASSED BY THE CPC, BANGALORE . HENCE, I FIND NO REASON TO INTERFERE WITH THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 7 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 21 ST DAY OF DECEMBER , 201 6 . SD/ - ( V. DURGA RAO ) JUDICIAL MEMBER DATED : 21 ST DECEMBER , 201 6 . VR/ - COPY TO: 1 . THE ASSESSEE. JALADI SUBBA RAO, 14 - 15 - 13/2, BEHIND BVS MARKET, CHIRALA, PRAKASAM DISTRICT. 2 . THE REVENUE. THE ACIT, CENTRALIZED PROCESSING CENTRE (CPC), POST BAG NO. 2, ELECTRONIC CITY POST OFFICE, BANAGALORE. 3 . THE CIT, GUNTUR. 4 . THE CIT(A) , GUNTUR. 5 . THE D.R . 6 . GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY, I.T.A.T., VISAKHAPATNAM.