DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR V. SMT. SHEENA MATHUR, JAIPUR

ITA 627/JPR/2017

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 0034 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 28-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROLEE AGARWAL
• Assessee Lawyers: S L PODDAR; ISHA KANUNGO
• Keywords: Source of fund; Revised return
• Section: 143(3); 153A; 139(5); 132; 2; 11; 139; 15

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA NO.627/JP/2017 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2011-12 DY. COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-4, JAIPUR CUKE VS. SMT SHEENA MATHUR A-8, SHYAM NAGAR AJMER ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEZPM2577H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT ROLEE AGARWAL (CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S.L.PODDAR & ISHA KANUNGO (ADV.) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 10/10/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 10/11/2017 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A), JAIPUR DATED 26.05.2017 FOR ASSESSMENT YEAR 2011-12 WHEREIN THE REVENUE HAS TAKEN FOLLOWING SOLE GROUND OF APPEAL:- 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) WAS RIGHT IN ALLOWING THE REVISED RETURN OF RS. 30,64,640/- INSTEAD OF ORIGINAL RETURN OF RS. 86,23,850/- 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSES SEE HAD FILED HER ORIGINAL RETURN OF INCOME U/S 139(1) OF THE ACT ON 30.07.201 1 FOR AY 2011-12 DECLARING TOTAL INCOME OF RS. 30,64,640/-. SUBSEQUENTLY, A SE ARCH AND SEIZURE OPERATIONS U/S 132 OF THE ACT WAS CARRIED OUT ON 30.10.2014 AT THE BUSINESS AND RESIDENCE PREMISES OF THE SDC GROUP, JAIPUR TO WHICH ASSESSEE BELONGS. THEREAFTER, ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 2 NOTICE U/S 153A FOR THE IMPUNGED ASSESSMENT YEAR 20 11-12 WAS ISSUED ON 17.12.2014 REQUIRING THE ASSESSEE TO FILE HER RETUR N OF INCOME WITHIN 20 DAYS FROM THE SERVICE OF THE NOTICE AND IN COMPLIANCE TO THE SAID NOTICE, THE ASSESSEE FILED HER RETURN OF INCOME ON 10.04.2015 D ECLARING TOTAL INCOME OF RS. 86,23,850/-. 3. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT WA S OBSERVED BY THE AO THAT THE ASSESSEE HAS DECLARED HER INCOME U/S 15 3A AT RS. 86,23,850/- WHEREAS IN HER ORIGINAL RETURN OF INCOME, SHE HAD D ECLARED TOTAL INCOME OF RS. 30,64,640/-. THE ASSESSEE WAS ACCORDINGLY ASKED TO FURNISH THE DETAILS OF THE INCOME DECLARED U/S 153A. 4. IN RESPONSE, THE ASSESSEE SUBMITTED THAT WHILE FILI NG THE RETURN OF INCOME U/S 153A, INCOME WAS BY MISTAKE DECLARED AT RS. 86,23,850/- AS AGAINST THE INCOME OF RS. 30,64,640/- WHICH WAS ALS O DECLARED IN HER ORIGINAL RETURN OF INCOME AND THE RETURN SO FILED U/S 153A H AS BEEN REVISED ON 14.12.2016 DECLARING INCOME OF RS. 30,64,640/-. THE SUBMISSION OF THE ASSESSEE FILED BEFORE AO IS REPRODUCED AS UNDER:- THAT THE ASSESSEE HAD FILED HER RETURN OF INCOME U /S 139(1) ON 30.07.2011 FOR RS. 30,64,640/- FOR THE YEAR UNDER CONSIDERATION, W HEN SEARCH WAS CONDUCTED ON THE RESIDENTIAL AND BUSINESS PREMISES OF THE ASS ESSEE ON 28.10.2014. THE ASSESSEE HAS NEITHER DECLARED ANY INCOME FOR THE YE AR UNDER CONSIDERATION NOR WERE ANY INCRIMINATION DOCUMENTS FOUND RELATING TO THE ASSESSEE. THE ASSESSEE HAS NOT DECLARED ANY INCOME DURING THE COURSE OF SE ARCH IN ANY OF THE YEARS, BUT DUE AN INADVERTENT MISTAKE THE ASSESSEE AT THE TIME OF FILING OF RETURN U/S 153A, WRONGLY FILED THE RETURN OF INCOME FOR RS. 86,23,850/- INSTEAD OF RS. 30,64,640/-, THE ASS ESSEE DOES NOT HAVE ANY INTENTION FOR INCREASING THE RETURN AND THE SAME HA S HAPPENED DUE TO SOME CLERICAL ERROR AT THE TIME OF FILING OF RETURN, WE ARE FILING THE REVISED RETURN FOR ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 3 THE YEAR UNDER CONSIDERATION FOR THE CORRECT AMOUNT SHOWING THE INCOME EARNED BY THE ASSESSEE FOR YEAR UNDER CONSIDERATION , YOU ARE REQUESTED TO CONDONE THE MISTAKE OF THE ASSESSEE AND REPLACE THE RETURN WITH THE REVISED RETURN. THE SAME IS ENCLOSED ALONG WITH THE COMPUTA TION FOR YOUR KIND PERUSAL. 5. THE REPLY FILED BY THE ASSESSEE WAS CONSIDERED THOU GH NOT FOUND ACCEPTABLE BY THE AO FOR THE REASONS STATED IN THE ASSESSMENT ORDER WHICH ARE REPRODUCED AS UNDER:- THE ASSESSEE HAS REVISED THE RETURN FILED U/S 153A AS STATED ABOVE. IT IS NOT UNDERSTOOD AS TO UNDER WHICH SECTION THE ASSESSEE H AS REVISED THE RETURN FILED U/S 153A, AS THERE IS NO SUCH RELAXATION IN THE ACT TO REVISE THE RETURN FILED U/S 153A. HENCE, THE REVISED RETURN ENCLOSED WITH THE S UBMISSION IS NOT ACCEPTED AND ACCORDINGLY REJECTED BEING BEYOND THE MANDATORY PROVISIONS OF THE INCOME TAX ACT, 1961. FURTHER THE ASSESSEE HAS SUBMITTED T HAT THE INCOME DECLARED IN HER RETURN OF INCOME FILED IN COMPLIANCE OF NOTICE U/S 153A OF THE ACT HAS BEEN BY CLERICAL ERROR DECLARED AT RS. 86,23,850/- INSTE AD OF RS. 30,64,640/- DECLARED IN ORIGINAL RETURN. THE CONTENTION OF THE ASSESSEE THAT IT HAPPENS BY CLERICAL MISTAKE IS NOT ACCEPTED. ON PERUSAL OF THE RETURN F ILED U/S 153A IT IS OBSERVED THAT EVERY ENTRY IN THE COLUMNS OF THE RETURN FILED 153A TALLY WITH THE COMPUTATION OF INCOME DECLARED BY THE ASSESSEE WHER E POSSIBILITY OF CLERICAL MISTAKE IS FAR FETCHED. NO WHERE IN BOTH THE RETURN S FILED U/S 153A AND THE ORIGINAL RETURN FIGURE RESEMBLES WITH EACH OTHER WH ICH MAY CAUSE MISTAKE. HENCE, IT APPEARS TO BE THE AFTER THOUGHT OF THE AS SESSEE TO CONCEAL TRUE PARTICULARS OF INCOME. IN VIEW OF THESE FACTS, INCO ME DECLARED U/S 153A AT RS. 86,23,850/- IS TREATED AS TOTAL INCOME OF THE ASSES SEE FOR THE YEAR UNDER CONSIDERATION. 6. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS GIVEN THE RELIEF OF RS. 55,59,210 AN D ACCEPTED THE REVISED RETURN FILED PURSUANT TO ISSUANCE OF NOTICE U/S 153 A. NOW THE REVENUE IS IN ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 4 APPEAL AGAINST THE FINDING OF THE LD. CIT(A) IN ACC EPTING THE REVISED RETURN FILED BY THE ASSESSEE ON 14.12.2016 INSTEAD OF RETURN FIL ED IN RESPONSE TO NOTICE U/S 153A OF THE ACT ON 10.04.2015. 7. ON PERUSAL OF THE ORDER PASSED BY THE LD CIT(A), WE FIND THAT THE LD CIT(A) NOTED THE RIVAL CONTENTIONS OF BOTH THE PART IES AND WHICH HAVE BEEN REITERATED AND ADVANCED BEFORE US AS WELL. WHILE T HE AO CONTENDS THAT INCOME TAX RETURN FILED U/S 153A CANNOT BE REVISED AS THER E IS NO PROVISIONS IN THE ACT FOR FILING A REVISED RETURN FILED PURSUANT TO NOTIC E U/S 153A. PER CONTRA, THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT SUCH RETURN CAN BE REVISED IN VIEW OF THE AFFIRMATIVE STATEMENT IN SECTION 153A(1)(A) THA T ALL THE PROVISIONS OF THE ACT WOULD APPLY TO THE RETURN AS IF SUCH RETURN WERE A RETURN FILED UNDER SECTION 139 AND SUCH PROVISIONS INCLUDES SECTION 139(5) OF THE ACT WHICH PROVIDES FOR THE REVISION OF THE RETURN OF INCOME AND THE TIME L IMIT AS SPECIFIED IN SECTION 139(5) WILL APPLY IN THE INSTANT CASE. 8. THE LD. CIT(A) FURTHER HELD THAT THERE SHOULD BE RELEVANCY OF INFORMATION AS GIVEN IN THE RETURN FILED FOR THE YEAR AND AO IS REQUIRED TO ACT ON THAT. APART FROM THIS, IF AO IS IN POSSESSION OF OTHER INCREDIB LE INFORMATION FOR THE YEAR, HE/SHE MAY USE THE SAME FOR DETERMINATION OF INCOME OF THE ASSESSEE FOR THAT PARTICULAR YEAR. HERE IN THIS CASE, ASSESSEE HAS FI LED ORIGINAL RETURN ON 30.07.2011 DECLARING TOTAL INCOME AT RS. 30,64,640/ - AND PURSUANT TO NOTICE ISSUED U/S 153A OF THE ACT, ASSESSEE FILED RETURN A T A TOTAL INCOME OF RS. 86,91,160/- ON 10.04.2015. SUBSEQUENT, AS STATED BY THE ASSESSEE, SHE REALIZED THAT FIGURES FOR AY 2014-15 WERE INADVERTE NTLY COPIED AND PASTED IN THE RETURN FOR AY 2011-12, ACCORDINGLY, ASSESSEE ON 14.12.2016 FILED RETURN WHERE TOTAL INCOME WAS TAKEN AT RS. 30,64,640/-. IT IS ALSO SUBMITTED THAT AS THE ITD SYSTEM DID NOT ALLOW ASSESSEE TO REVISE ITS RETURN FILED PURSUANT TO THE NOTICE ISSUED U/S 153A OF THE ACT, ASSESSEE SIMPLY FILED THE FRESH RETURN FOR THE AY 2011-12 ON 14.12.2016 BY RECTIFYING THE MISTAKE APPARENT FROM THE RECORD. ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 5 9. THE LD. CIT(A) FURTHER HELD THAT INADVERTENTLY ASSESSEE HAS PUT FIGURES OF AY 2014-15 IN THE RETURN OF AY 2011-12. AO HAS ALSO NOT CARRIED OUT ANY INVESTIGATION OR ENQUIRY WITH REGARD TO RELEVANCY O F INFORMATION CONTAINED IN THE SAID RETURN. AO HAS SIMPLY OBSERVED THAT RETURN FILED PURSUANT TO NOTICE ISSUED U/S 153A CANNOT BE RECTIFIED, HENCE HE SIMPL Y ADDED THE DIFFERENTIAL FIGURES WHILE COMPLETING THE ASSESSMENT. IT IS PERT INENT TO MENTION HERE AGAIN THAT INCOME-TAX RETURN IS THE FORM IN WHICH AN ASSE SSEE FILES INFORMATION ABOUT HIS INCOME FOR THE YEAR AND TAX PAID THEREON TO GOV TS A/C. IT IS A STATEMENT OF ASSESSEES EARNINGS FROM VARIOUS SOURCES OF INCOME, TAX LIABILITY THEREON, DETAILS OF TAX PAID AND REFUND IF ANY, THAT IS REQUIRED TO BE GIVEN BY THE GOVERNMENT. THEREFORE, IF THE FIGURE OF INCOME AND PAYMENT OF T AXES DOES NOT MATCH TO FIGURES DULY RECORDED IN ASSESSEES BOOKS OF A/C FO R THE YEAR, BUT MATCHES WITH THOSE OF AY 2014-15, THEN IN ABSENCE OF ANY INCRIMI NATING DOCUMENT AND SUBSEQUENT ENQUIRY CONDUCTED BY THE AO, THE DETAILS AS MENTIONED IN THE RETURN FILED ON 10.04.2015 IS NOT RELEVANT FOR THE AY 2011-12. 10. THE LD. CIT(A) FURTHER HELD THAT TO FURTHER SUB STANTIATE HER CLAIM, ASSESSEE HAS ALSO FILED AN AFFIDAVIT STATING THE FACT THAT C ORRECT INCOME FOR THE YEAR SHOULD BE TAKEN AT RS. 30,64,640/-. APART FROM THIS , IT IS ALSO PERTINENT TO NOTE THAT ASSESSEE DURING THE SEARCH OPERATION CARRIED O UT HAD NOT MADE ANY DISCLOSURE OF INCOME NOR ANY INCRIMINATING MATERIAL SUGGESTING ADDITIONAL UNDISCLOSED INCOME OF RS. 55,59,210/- (RS. 86,23,85 0 RS. 30,64,640) WAS FOUND FROM HER POSSESSION. 11. THE LD. CIT(A) FINALLY HELD THAT IN VIEW OF FA CTS AND CIRCUMSTANCES OF THE CASE AND MOST RESPECTFULLY FOLLOWING THE DECISION O F HONBLE ITAT MUMBAI (SUPRA), THE RETURN FILED PURSUANT TO NOTICE ISSUED U/S 153A OF THE ACT CAN BE REVISED, PROVIDED MISTAKES ARE APPARENT FROM THE RE CORD, ACCORDINGLY, IN THIS CASE, IT IS SEEN THAT INFORMATION/DETAILS GIVEN IN THE RETURN FILED ON 10.04.2015 IS IRRELEVANT & NO USE TO THE AO FOR THE AY 2011-12 . HENCE, AO IS HEREBY DIRECTED TO TAKE THE FIGURES OF RETURN FILED ON 14. 12.2016 AT A TOTAL INCOME OF ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 6 RS. 30,64,640/-. ASSESSEES APPEAL STANDS ALLOWED I N GR NO. 1. ASSESSEE GETS A RELIEF OF RS. 55,59,210/-. 12. IN LIGHT OF ABOVE BACKGROUND, IN ORDER TO APPRE CIATE THE RIVAL CONTENTIONS OF BOTH THE PARTIES AS WE HAVE NOTED IN PARA 7 ABOV E, IT WOULD BE RELEVANT TO REFER TO THE PROVISIONS OF SECTION 153A OF THE ACT WHICH READS AS UNDER:- 153A (1) NOTWITHSTANDING ANYTHING CONTAINED IN SEC TION 139, SECTION 147, SECTION 148,SECTION 149, SECTION 151 AND SECTION 15 3, IN THE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL- (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSME NT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFI ED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRE D TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSME NT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITI ON IS MADE. 13. ON READING OF THE ABOVE PROVISIONS, IT PROVIDES FOR ISSUANCE OF NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH THE RETURN OF INCOME WITHIN THE PRESCRIBED TIME LIMIT AS MAY BE SPECIFIED IN THE NOTICE. FURTH ER, IT PROVIDES THAT THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APP LY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTIO N 139 OF THE ACT. 14. THE EXPRESSION SO FAR AS MAY BE USED IN SECT ION 153A(1)(A) CAME UP FOR CONSIDERATION BEFORE THE CO-ORDINATE BENCH IN C ASE OF R.S. INVESTMENT VS. ITO REPORTED IN 15 TAXMAN.COM 270 WHEREIN IN THE CO NTEXT OF WHETHER PROVISIONS IN RESPECT OF PENALTY FOR VIOLATION OF P ROVISIONS OF SECTION 139 SHALL ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 7 BE APPLICABLE WHERE THERE IS A VIOLATION OF SECTION 153C, READ WITH SECTION 153A IN RESPECT OF FILING RETURN OF INCOME, IT WAS HELD AS UNDER: 7. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. THE PROVISIONS OF SECTION 153C UNDER WHICH THE ASSESSMENT HAS BEEN MADE PROVIDE IN RESPECT OF THE ASSESSMENT OF INCOME OF ANY OTHER PERSON IN ADDITIO N TO THE ASSESSMENT IN THE CASE OF SEARCH OR REQUISITION U/S 153A OF INCOME-TA X ACT. THE PROVISIONS ITSELF PROVIDE THAT THE ASSESSMENTS UNDER THIS SECTION SHA LL BE MADE BY THE AO OF SUCH PERSON BY ISSUING THE NOTICE AND ON THAT BASIS , THE AO WILL ASSESS OR REASSESS THE TOTAL INCOME OF SUCH PERSON OR SUCH AS SESSMENT YEARS IN THE MANNER PROVIDED IN SECTION 153A. THUS, THE ASSESSME NT AND REASSESSMENT HAS TO BE MADE IN THE MANNER PROVIDED IN SECTION 153A. SECTION 153A PROVIDES THAT THE AO SHALL ISSUE THE NOTICE REQUIRING TO FURNISH RETURN OF INCOME WITHIN A PERIOD AS SPECIFIED IN THE NOTICE. THE ASSESSEE WAS UNDER THE OBLIGATION TO FILE THE RETURN OF INCOME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS IN A PRESCRIBED FORM AND VERIFIED IN A PRESCRIBED MANNER ALONG WITH OTHER PARTICULARS AS MAY BE PRESCRIBED A ND THE PROVISIONS OF INCOME-TAX ACT SHALL, AS FAR AS MAY BE, APPLY, ACCO RDINGLY AS IF SUCH RETURN WAS A RETURN REQUIRED TO BE FURNISHED U/S 139. IN VIEW OF THESE, WE ARE NOT IN AGREEMENT WITH THE PLEADINGS OF THE LEARNED AR THAT THE PROVISIONS OF SECTION 271F CANNOT BE APPLIED WHERE THE RETURN IS REQUIRED TO BE FURNISHED U/S 153C READ WITH SECTION 153A OF THE INCOME-TAX ACT. ALTHO UGH THERE IS NO MINIMUM TIME REQUIRED TO BE GIVE IN THE NOTICE TO BE ISSUED U/S 153A FOR FILING THE RETURN AND ALSO NO SEPARATE FORM HAS BEEN PRESCRIBED, HOWE VER, ASSESSEE WAS UNDER LEGAL OBLIGATION TO FILE THE RETURN OF INCOME. THE PHRASE HAS BEEN USED 'SO FAR AS MAY BE' IN SECTION 153A. IN OUR CONSIDERED VIEW, THESE WORDS 'SO FAR AS MAY BE' HAVE BEEN USED TO RESTRICT THE APPLICABI LITY OF THOSE PROVISIONS WHICH ARE INCONSISTENT WITH THE PROVISIO NS OF SECTION 153A. MEANING THEREBY THAT BY USING WORD 'SO FAR AS MAY B E' IN SECTION 153A, THE PROVISIONS AND REQUIREMENT OF SECTION 139 WHICH ARE NOT ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 8 INCONSISTENT WITH PROVISIONS OF SECTION 153A SHALL BE APPLICABLE AND COMPLIANCE THEREOF SHALL BE AS MANDATORY. THE PROVISIONS IN RESPECT OF THE PENALTY FOR THE VIOLATION OF THE PROVISIONS OF SECTION 139 SHALL BE VERY MUCH APPLICABLE WHENEVER THERE IS A VIOLATION OF SECTION 153C READ WITH SECTION 153A IN RESPECT OF THE FILING THE RETURN OF INCOME. SINC E WE ARE HOLDING THAT THE PROVISIONS OF SECTION 271F ARE APPLICABLE WHEN THER E IS A VIOLATION OF NON-FILING THE RETURN WHEN NOTICES U/S 153 READ WITH SECTION 1 53A ARE ISSUED, THEREFORE, THE CASE LAWS RELIED UPON BY THE LEARNED AR WITH RE GARD TO PROPOSITION THAT PENALTY PROVISIONS SHOULD BE CONSTRUED STRICTLY HAS NO RELEVANCE ON THE ISSUE. FURTHER, THE LEARNED AR'S PLEADINGS THAT THE PENALT Y FOR NOT FILING THE ORIGINAL RETURN OF INCOME CAN ALSO BE NOT LEVIED DUE TO BEYO ND THE REASONABLE TIME. IN THIS REGARD, WE ARE OF THE VIEW THAT REVENUE HAD NO T ESTABLISHED BEYOND DOUBT THAT RETURNS WHEREVER ASSESSEE WAS REQUIRED TO BE F ILED HAD NOT BEEN FILED BY THE ASSESSEE. AS WE HAVE SEEN THAT ASSESSEE WAS NOT HAVING TAXABLE INCOME AT LEAST IN FOUR ASSESSMENT YEARS. FURTHER, THE ASSESS EE HAS ALSO FILED THE AFFIDAVIT STATING THAT ORIGINAL RETURN OF INCOME WERE FILED. REVENUE HAD NOT DISPROVED/DISLODGED THE CONTENTS OF AFFIDAVIT. THER EFORE, AFTER CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND VARIOUS PLEAD INGS MADE BEFORE US, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE DOES NOT D ESERVE TO BE VISITED PENALTY U/S 271F OF THE INCOME-TAX ACT. IN VIEW OF THESE FA CTS, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW. 15. HERE, IT WOULD ALSO BE RELEVANT TO REFER TO ER STWHILE PROVISIONS OF SECTION 158BC CONTAINED IN CHAPTER XIV-B WHICH CONTAINS SIM ILAR PROVISIONS FOR FILING OF RETURN OF INCOME PURSUANT TO ISSUANCE OF NOTICE BY THE AO WHERE THE SEARCH HAS BEEN CONDUCTED. BY WAY OF A PROVISO TO SECTION 158BC(A), IT WAS SPECIFICALLY PROVIDED THAT A PERSON WHO HAS FURNISH ED A RETURN UNDER THIS CLAUSE SHALL NOT BE ENTITLED TO FILE A REVISED RETURN OF I NCOME. THE SAID PROVISIONS HAVE SINCE BEEN SUPERSEDED BY THE PROVISIONS OF SECTION 153A OF THE ACT. UNLIKE THE ERSHWHILE PROVISIONS OF SECTION 158BC WHICH PROVIDE S A CLEAR EMBARGO ON FILING ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 9 THE REVISED RETURN, CURRENT PROVISIONS IN SECTION 1 53A DONOT CONTAIN ANY SPECIFIC RESTRICTION. RATHER, IT IS SEEN THAT CURRENT PROVIS IONS HAVE BEEN DRAFTED IN A WAY SO AS TO ALIGN WITH THE PROVISIONS CONTAINED IN SEC TION 139 PROVIDED THERE ARE NOT INCONSISTENT WITH THE PROVISIONS OF SECTION 153 A OF THE ACT. THEREFORE, IN ABSENCE OF A SPECIFIC RESTRICTION UNDER SECTION 153 A, IT WOULD BE WRONG TO HOLD THAT THE ASSESSEE WOULD BE BARRED FROM FILING A REV ISED RETURN ASSUMING SHE SATISFIES THE CONDITIONS FOR FILING SUCH REVISED RE TURN. 16. IN LIGHT OF ABOVE DISCUSSIONS, WE ARE OF THE V IEW THAT THERE IS NO RESTRICTION FOR FILING A REVISED RETURN PURSUANT TO FILING OF RETURN IN RESPONSE TO NOTICE UNDER SECTION 153A OF THE ACT AND THE PROVIS IONS OF SECTION 139(5) ARE EQUALLY APPLICABLE IN CASE OF RETURN FILED PURSUANT TO NOTICE UNDER SECTION 153A OF THE ACT. 17. NEXT ISSUE THAT ARISE FOR CONSIDERATION IS WHE THER THE CONDITIONS FOR FILING THE REVISED RETURN AS PROVIDED UNDER SECTION 139(5) HAVE BEEN COMPLIED WITH IN THE INSTANT CASE OR NOT. THE PROVISIONS OF SECTION 139(5) READ AS UNDER: '(5) 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 OR BEFORE THE COMPLETION OF THE ASS ESSMENT, WHICHEVER IS EARLIER : PROVIDED THAT WHERE THE RETURN RELATES TO THE PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1988, OR ANY EARLIER ASSESSMENT YEAR, THE REFERENCE TO ONE YEAR AFORESAI D SHALL BE CONSTRUED AS A REFERENCE TO TWO YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR.' 18. ON READING OF ABOVE PROVISIONS, IT IS CLEAR TH AT WHERE THE RETURN OF INCOME HAS BEEN FILED UNDER SECTION 139(1) OF THE A CT, IT CAN BE REVISED. IN OTHER WORDS, WHERE THE RETURN OF INCOME HAS BEEN FI LED WITHIN THE TIME ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 10 PRESCRIBED FOR FILING THE RETURN OF INCOME UNDER SE CTION 139(1) OF THE ACT, THE SAME CAN BE REVISED UNDER SECTION 139(5) OF THE ACT . IN THE INSTANT CASE, WHERE THE RETURN IS FILED UNDER SECTION 153A, THERE IS NO STATUTORY TIME LIMIT FOR FILING THE RETURN OF INCOME, HOWEVER THE POWERS HAV E BEEN STATUTORILY DELEGATED TO THE AO TO PRESCRIBE THE TIME LIMIT FOR FILING T HE RETURN OF INCOME WHILE ISSUING THE NOTICE UNDER SECTION 153A OF THE ACT. AS A NECESSARY COROLLARY, WHERE THE RETURN OF INCOME HAS BEEN FILED WITHIN TH E PRESCRIBED TIME LIMIT FOR FILING SUCH RETURN AS PER NOTICE ISSUED UNDER SECTI ON 153A, THE ASSESSEE SHALL BE ELIGIBLE FOR FILING A REVISED RETURN. IN THE INSTA NT CASE, THE NOTICE U/S 153A WAS ISSUED BY THE ACIT, CENTRAL CIRCLE-3, JAIPUR FOR AY 2011-12 ON 17.12.2014 STATING AS UNDER: A SEARCH U/S 132 OF THE INCOME TAX ACT, 1961 WAS C ONDUCTED ON 30.10.2014 IN YOUR CASE. IN PURSUANCE OF THE PROVISION OF THE SECTION 153A OF THE INCOME- TAX ACT, 1961, YOU ARE REQUESTED TO FURNISH YOUR TR UE AND CORRECT RETURN OF INCOME IN RESPECT OF WHICH YOU ARE ASSESSABLE FOR T HE ASSESSMENT YEAR MENTIONED ABOVE. 2. THE RETURN OF INCOME SHOULD BE FURNISHED IN THE APPROPRIATE FORM AS PRESCRIBED IN RULE-12 OF THE INCOME-TAX RULES 1962. IT SHOULD BE DULY VERIFIED AND SIGNED IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 140 OF THE SAID ACT AND DELIVERED AT MY OFFICE AT ROOM NO. N.A. 102 NEW CEN TRAL REVENUE BUILDING, STATUE CIRCLE, JAIPUR WITHIN TWENTY DAYS (20 DAYS) FROM SERVICE OF THIS NOTICE. IN THE ASSESSMENT ORDER, THE AO AT PARA 5 HAS STATE D CLEARLY THAT THE NOTICE UNDER SECTION 153A WAS ISSUED ON 17.12.2014 AND DUL Y SERVED ON THE ASSESSEE. THE ISSUANCE AND SERVICE OF NOTICE IS THUS NOT IN D ISPUTE. SUBSEQUENTLY, THE ASSESSEE HAS FILED HER RETURN OF INCOME PURSUANT TO SUCH NOTICE U/S 153A ON 10.04.2015. THE QUESTION IS WHETHER SUCH RETURN HA S BEEN FILED WITHIN THE STIPULATED TIMEFRAME AS PRESCRIBED IN NOTICE U/S 15 3A OF THE ACT. APPARENTLY, THE AO SEEMS SATISFIED AND HAS NOT DISPUTED THIS FA CT AND HAS ALSO NOT INITIATED ANY PENAL ACTION UNDER SECTION 271F FOR DELAY IN FI LING OF THE RETURN OF INCOME. ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 11 19. THE SECOND CONDITION REQUIRED TO BE SATISFIED FOR FILING A REVISED RETURN IS THAT THE ASSESSEE DISCOVERS ANY OMISSION OR WRONG S TATEMENT IN THE RETURN ORIGINALLY SO FILED BY HIM, IN THAT SCENARIO, HE CA N REVISE THE RETURN ORIGINALLY FILED. IN THE INSTANT CASE, THE LD CIT(A) HAS RETU RNED A FINDING AFTER EXAMINATION OF THE RETURN OF INCOME THAT THE ASSESS EE HAS INADVERTENTLY PUT FIGURES OF AY 2014-15 IN THE RETURN OF AY 2011-12. THE LD CIT (A) HAS FURTHER HELD THAT IF THE FIGURE OF INCOME AND PAYMENT OF TA XES DOES NOT MATCH TO FIGURES DULY RECORDED IN ASSESSEES BOOKS OF A/C FO R THE YEAR, BUT MATCHES WITH THOSE OF AY 2014-15, THEN IN ABSENCE OF ANY INCRIMI NATING DOCUMENT AND SUBSEQUENT ENQUIRY CONDUCTED BY THE AO, THE DETAILS AS MENTIONED IN THE RETURN FILED ON 10.04.2015 IS NOT RELEVANT FOR THE AY 2011-12. IT WAS FURTHER HELD BY HIM THAT ASSESSEE HAS ALSO FILED AN AFFIDAV IT STATING THE FACT THAT CORRECT INCOME FOR THE YEAR SHOULD BE TAKEN AT RS. 30,64,64 0/- AND ASSESSEE DURING THE SEARCH OPERATION CARRIED OUT HAD NOT MADE ANY DISCL OSURE OF INCOME NOR ANY INCRIMINATING MATERIAL SUGGESTING ADDITIONAL UNDISC LOSED INCOME OF RS. 55,59,210/-. THE LD CIT(A) HAS THEREFORE RIGHTLY AN ALYSED THE RETURN OF INCOME, THE UNDERLYING FINANCIAL STATEMENTS AND HAS BASICAL LY COME TO A CONCLUSION THAT IT IS THE REAL INCOME WHICH IS REFLECTIVE OF THE AS SESSEES BUSINESS ACTIVITIES WHICH CAN BE BROUGHT TO TAX AND A RETURN OF INCOME SO FILED IS TO DISCLOSE SUCH INCOME TO THE AO AND THE AO HAS TO ACT ON THAT. HO WEVER, WHERE THERE ARE APPARENT MISTAKES IN THE RETURN SO FILED, THE SAID MISTAKES WHICH ARE APPARENT ON THE FACE OF THE RECORDS SHOULD NOT BE IGNORED TO THE DISADVANTAGE OF THE ASSESSEE. THE SAID FINDINGS OF THE LD CIT(A) REMAIN UNCONTROVERTED BEFORE US AND WE SEE NO REASON BUT TO ACCEPT THE SAME. IT IS THUS CLEARLY A CASE OF INADVERTENT HUMAN ERROR AND MISTAKE ON PART OF THE ASSESSEE CALLING FOR FILING OF REVISED RETURN. 20. THE THIRD CONDITION WHICH IS REQUIRED TO BE FU LFILLED IS THAT THE REVISED RETURN SHOULD BE FILED BEFORE THE END OF THE RELEVA NT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARL IER. IN THE INSTANT CASE, THE ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 12 RELEVANT ASSESSMENT YEAR IS AY 2011-12, THE REVISED RETURN OF INCOME WAS FILED ON 14.12.2016 AND THE ASSESSMENT WAS COMPLETED BY P ASSING OF ORDER U/S 153A R/W SECTION 143(3) ON 29.12.2016. IN THE INST ANT CASE, THE NOTICE REQUIRING THE FILING OF RETURN OF INCOME UNDER SECT ION 153A WAS ITSELF ISSUED ON 17.12.2014, THEREFORE APPLYING THE PRINCIPLE OF IMP OSSIBILITY OF PERFORMANCE, FILING OF REVISED RETURN OF INCOME ON OR BEFORE 31. 03.12 CANNOT BE SAID TO BE APPLICABLE OR ENFORCED UPON THE ASSESSEE IN THE PEC ULIAR FACTS OF THE CASE. GIVEN THAT THE REVISED RETURN WAS FILED ON 14.12.20 16 WELL BEFORE THE COMPLETION OF ASSESSMENT ON 29.12.2016, THE TIME LI MIT FOR FILING THE REVISED RETURN IS SATISFIED IN THE INSTANT CASE. 21. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE ENTIR ETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DONOT SEE ANY INFIRMI TY IN THE ORDER OF THE LD CIT(A) AND THE SAME IS HEREBY CONFIRMED. IN THE RE SULT, REVENUES GROUND OF APPEAL IS DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/11/2017. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 10/11/2017 *GANESH KR VKNS'K DH IZFRFYFI VXZSF'KR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT - DCIT, CENTRAL CIRCLE-4, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT - SMT. SHEENA MATHUR, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDRVIHY@ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR ITA NO. 627/JP/2017 DY. COMMISSIONER OF INCOME-TAX, JAIPUR VS SMT. SHEENA MATHUR, JAIPUR 13 6. XKMZ QKBZY@ GUARD FILE (ITA NO. 627/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.