Sri Manab Kejriwal, Kolkata V. ITO, WD-49(2), KOLKATA, Kolkata

ITA 698/KOL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4457 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 06-06-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S SRIVASTAVA
• Assessee Lawyers: S M SURANA
• Keywords: Assessment record
• Section: 263; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C, BENC H KOLKATA BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWANETHRA RAVI, JM ./ ITA NO.698/KOL/2014 ( / ASSESSMENT YEAR :2009-2010) SRI MANAB KEJRIWAL, BLOCK-9, FLAT NO.5H, 5 TH FLOOR, SPACE TOWN HOUSING COMPLEX, V.I.P. ROAD, KOLKATA-170052 VS. INCOME TAX OFFICER, WARD-49(2), KOLKATA ./ ./PAN/GIR NO. : AWJPK 1519 R ( /APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI S.M.SURANA /REVENUE BY : SHRI S. SRIVASTAVA / DATE OF HEARING : 06/06/2016 /DATE OF PRONOUNCEMENT 15/07/2016 / O R D E R PER WASEEM AHMED (A.M.) : THE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE ORDER VIDE MEMO NO. CIT-XVII/U/S263/2012-13/1154-1157 DATED 26-2-2014, PASSED BY LD. COMMISSIONER OF INCOME TAX-XVII, (CIT FOR SHORT) KO LKATA, RELATING TO ASSESSMENT YEAR 2009-2010, ON THE FOLLOWING GROUNDS :- 1. FOR THAT THE ORDER OF THE LD. CIT (A) IS ARBITRA RY, ILLEGAL AND BAD IN LAW. 2. FOR THAT THE LD. C.I.T ERRED IN PASSING THE ORDE R U/ S. 263 WHEN THE ASSESSEE DID NOT FILE ANY RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION, THE ISSUE WAS NOT EXAMINE D BY THE AO , THE ASSESSMENT WAS COMPLETED WHICH ITSELF WAS BAD IN LAW AND THEREFORE THE ENTIRE PROCEEDINGS U/S. 263 A RE ALSO VOID-AB INITIO. 3. FOR THAT THE LD. C.I.T ERRED IN EXERCISING JURI SDICTION U/S. 263 WHEN ALL THE ISSUES RAISED IN THE SHOW CAUSE NOTICE HAD BEEN CONSIDERED AND CATEGORICALLY SPELT OUT BY THE AO IN HIS ORDER PASSED U/S. 144, DULY EXAMINED BY HIM SINCE T HE ASSESSMENT ITSELF WAS TAKEN UP FOR SCRUTINY ONLY ON THE BASIS OF THE AIR INFORMATION IN RESPECT OF THE IMPUGNED A MOUNTS. 4. FOR THAT THE LD. CIT HIMSELF SHOULD HAVE DECIDE D THE ISSUE, CALL FOR THE RECORDS AND EXAMINED THE SAME WHEN THE ITA NO.698/KOL/14 SRI MANAB KEJRIWAL 2 SPECIFIC ISSUE WAS TAKEN UP BEFORE THE LD. CIT THAT THE APPELLANT DID NOT FILE ANY RETURN. 2. AT THE OUTSET LD. AR OF THE ASSESSEE HAS CHALLEN GED THE PROCEEDINGS U/S 263 OF THE ACT ON THE GROUND THAT T HE ASSESSEE HAS NEVER FILED INCOME TAX RETURN. THE SAME OBJECTION WAS ALS O RAISED BEFORE THE AO AT THE TIME OF ASSESSMENT FRAMED U/S.144 OF THE ACT . LD. AR ALSO FILED A PAPER BOOK COMPRISING PAGES FROM 1 TO 34. THE LD. A R DREW OUR ATTENTION ON PAGES 10 TO 34 OF THE PAPER BOOK, WHERE DETAIL O F ONLINE RETURN WAS PLACED. LD. AR CHALLENGED THE ABOVE INCOME TAX RETU RN AND STATED THAT THE SAME WAS NOT FILED BY THE ASSESSEE. IT WAS ALSO OBSERVED THAT THE RETURN WAS NOT SIGNED BY THE ASSESSEE. 3. ON THE LAST DAY OF HEARING I.E. 5/1/2016 THE LD. DR WAS DIRECTED TO PRODUCE THE ASSESSMENT RECORDS AND THEREAFTER THE CASE WAS FIXED FOR HEARING 4 TIMES BUT TILL DATE NO COMPLIANCE HAS BEE N MADE. ON A S PECIFIC QUERY FROM THE B ENCH ABOUT THE GENUINENESS OF THE RETURN FILED BY T HE ASSESSEE, LD. DR FAILED TO BRING ANYTHING CONTRARY TO THE ARGUMENTS ADVANCED PLACED BY THE LD. AR. IN VIEW OF THE ABOVE , WE ARE OF THE OPINION THAT THE RETURN FILED BY THE ASSESSEE IS NO T VALID RETURN . A CCORDINGLY ASSESSMENT FRAMED U/S.144 AND ORDER PASS ED U/S.263 OF THE ACT BECOMES VOID AB INITIO . SECTION 140 OF THE INCOME- TAX ACT, 1961 PROVIDES FOR THE PERSONS BY WHOM THE RETURN MUST BE SIGNED. THE PERTINENT QUESTION THAT ARISES IS WHETHER IT SHOULD BE TREATED NON EST OR A CURABLE DEFECT OR A RECTIFIABLE MISTAKE OR CAN IT B E SAVED BY SOME OTHER STATUTORY PROVISION. DISCUSSING THE SITUATION AND T HE JUDICIAL DECISIONS IN THIS REGARD, WE ARE OF THE OPINION THAT SECTION 139 (1) OF THE ACT MANDATORILY REQUIRES THAT THE RETURN SHOULD BE FURNISHED IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER. SECTION 140 OF THE ACT, AGAIN, MANDATORILY PROVIDES THE LIST OF PERSONS WHO ARE ELIGIBLE TO S IGN THE RETURN. IT IS A WELL SETTLED PR INCIPLE THAT IF A STATUTE PROVIDES FOR A THING TO B E DONE IN A PARTICULAR MANNER, THEN IT IS TO BE DONE IN TH AT MANNER AND IN NO OTHER MANNER, BUT THE PERTINENT QUESTION IS, IF THAT THIN G IS NOT DONE IN CONFORMITY ITA NO.698/KOL/14 SRI MANAB KEJRIWAL 3 WITH THE STATUTORY REQUIREMENT WHAT WOULD BE ITS EFFECT? W HETHER IT SHOULD BE TREATED NON EST OR A CURABLE DEFECT OR A RECTIFIABLE MISTAKE OR CAN IT BE SAVED BY SOME OTHER STATUTORY PROVISION? AS A MATTER OF FACT, THE AFORESAID FOUR PROBABILITIES HAVE BEEN DRAWN FROM THE ANOMALOUS STATUTORY AND JUDICIAL DELINEATIONS OF THE MOOT-POI NT. IN THE CASE OF COMMR. OF AGRL. IT VS. KESHAB CHANDRA MANDAL (1950) 18 ITR 56 9 (SC) : TC 9R.617 , THE HONBLE APEX COURT HAD LAID DOWN THAT RETURN NOT SIGNED OR THUMB MARKED BY THE ILLITERATE ASSESSEE COULD NO T BE TREAT ED AS A PROPERLY SIGNED AND A VALID RETURN. IN WAMAN PADMANABH DANDE VS. CIT (1952) 22 ITR 339 (NAG) : TC 9R.394 , A DIVISION BENCH OF THE NAGPUR HIGH COURT HAD HELD THAT 'WHERE A RETURN MADE IS NOT IN THE PRESCRIBED FORM, OR IS NOT SIGNED AND VERIFIED AS R EQUIRED BY THE PRESCRIBED FORM, IT IS AN INVALID RETURN. THE IDENTICAL VIEW SEEMS TO HAVE BEEN EXPRESSED BY THE HONBLE ALLAHABAD HIGH COURT IN CIT VS. DR. M.K. GUPTA 1978 CTR (ALL) 36 : (1978) 113 ITR 473 (ALL). AGAIN, IN CIT VS. DR. KRISHAN LAL GOYAL (1984) 43 CTR (P&H) 135 : (1984) 148 ITR 283 (P&H) : TC 9R.628, THE HONBLE PUNJAB AND HARYANA HIGH COURT HELD THAT IF A RETURN IS NOT SIGNED AND VERIFIED AS REQUIRED BY THE PRESCRIBED FORM, IT IS AN INVALID RETURN. HONBLE JURISDICTIONAL HIGH COURT IN NATIO NAL INSURANCE CO. LTD. VS. CIT (1995) 127 CTR (CAL) 238 : (1995) 213 ITR 862 (CAL) : TC S9.1087 HAS ALSO HELD THAT THE NON-SIGNING OF A RETURN FILED BY THE ASSESSEE WOULD INVALIDATE THE RETURN AND NO ASSESSME3.1 NT THEREON IS CALLED FOR AND IT CANNOT BE SAID TO BE A DEFECTIVE RETURN AS THE SPECIFIC CASES AND CIRCUMSTANCES INDICATING WHEN/WHICH RETURN WOULD BE DEFECTIVE HAVE BEEN INDICATED IN THE EXPLANATION TO SECTION 139(9) AND THE INCOME-TAX OF FICER CANNOT TREAT OTHER CASES AND CIRCUMSTANCES OF DEFIC IENCIE S FATAL TO THE RETURN AS BEING NEARLY DEFECTS IN THE RETURN . ACCORDINGLY, THE UNSIGNED RETURN WAS HELD TO BE INVALID AND NOT A CASE OF MER E DEFECTIVE RETURN. 3.1 IN THE INSTANT CASE, WE FIND THAT ASSESSEE ST ATES IN HIS RETURN, HAS NOT BEEN SUBMITTED. FURTHER, WE FIND FROM THE RETURN SUBMITTED BEFORE US THAT ITA NO.698/KOL/14 SRI MANAB KEJRIWAL 4 THE RETURN IS ALSO NOT SIGNED. RELYING ON THE AFORE SAID JUDGMENTS WE ARE INCLINED TO REVERSE THE IMPUGNED ORDER OF AUTHORITI ES BELOW. HENCE THIS GROUND OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 15/07/20 16. SD/ - (S.S.VISWANETHRA RAVI) SD/ - (WASEEM AHMED) ! / JUDICIAL MEMBER ' ! / ACCOUNTANT MEMBER KOLKATA ; %& DATED 15/07/2016 . .()/PKM ,/*DKP . / PS #$% &% / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, KOLKATA 1. / THE APPELLANT 2. / THE RESPONDENT. 3. . ( ) / THE CIT(A), KOLKATA 4. . / CIT 5. /01 2 , 2 , / DR, ITAT, KOLKATA 6. 13 / GUARD FILE. / //TRUE COPY//