M/s Punjab State Cooperative, Chandigarh V. DCIT,

ITA 700/CHANDI/2007

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8449 (ITAT-CHANDIGARH)
• Duration Of Justice: 8 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-03-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 03-07-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Question of law; Revised return
• Section: 139(5); 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI H.L. KARWA, HONBLE VICE PRESIDENT AND MS. ANNAPURNA MEHROTRA, ACCOUNTANT MEMBER ITA NO.700/CHD/2007 ASSESSMENT YEAR : 2003-04 M/S PUNJAB STATE COOPERATIVE VS. THE DCIT, FEDERATION OF HOUSING BUILDING, CIRCLE 4 (1) SOCIETIES LTD. SCO 150-152 CHANDIGARH SECTOR 34-A, CHANDIGARH PAN NO. AAAAT0759L (APPELLANT) (RESPONDENT) APPELLANT BY : SH. M.R. SHARMA RESPONDENT BY : SH. MANOJ MISHRA DATE OF HEARING : 07/01/2016 DATE OF PRONOUNCEMENT : 04/03/2016 ORDER PER ANNAPURNA MEHROTRA A.M. THIS APPEAL HAS BEEN FIXED FOR HEARING AS A CONSEQU ENCE TO THE DIRECTION OF THE HONBLE PUNJAB & HARYANA HIGH COURT VIDE ITS ORDER DATED 12.08.2009. 2. BRIEFLY STATED THE ASSESSEE IS A FEDERATION OF C O-OPERATIVE HOUSE BUILDING SOCIETIES. THE BUSINESS OF THE ASSESSEE IS TO GRANT LOANS TO ITS MEMBER SOCIETIES AND ALSO CONSTRUCTION OF HOUSES AND HOUSING COMPLEX ES. FOR THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE FILED RETURN DECLARIN G INCOME OF RS. 18,37,416/- ON 29.11.2003. THE RETURN WAS PROCESSED U/S 143(1) ON 12.01.2004. ON 31.03.2005, THE ASSESSEE FILED REVISED RETURN DECLARING THE SAM E INCOME I.E. RS. 18,37,418/-. IN THE ORIGINAL RETURN THE ASSESSEE HAD CLAIMED DEDUCT ION U/S 10(20A) OF THE INCOME TAX ACT, 1961, WHILE IN THE REVISED RETURN, THE ASSESSEE CLAIMED THE SAME AMOUNT OF DEDUCTION U/S 80IB(10). ASSESSMENT U/S 14 3(3) WAS FRAMED ON THE ASSESEE AND DURING THE COURSE OF WHICH THE ASSESSEE CLAIMED THAT NO INCOME HAD IN FACT BEEN RECEIVED BY IT, SINCE THE PROPERTI ES HAD NOT BEEN SOLD BY IT AND THEREFORE NO INCOME COULD BE ARRIVED AT TILL THE PR OPERTIES ARE SOLD. THE A.O. DENIED THE DEDUCTION CLAIMED U/S 80IB(10) ON MERITS AND FURTHER STATED THAT THE NEW CLAIM OF NO INCOME EARNED HAD BEEN MADE BY WAY OF REVISING THE INCOME IN THE WRITTEN SUBMISSIONS FILED BEFORE THE A.O. DU RING ASSESSMENT PROCEEDINGS 2 ON 21.12.2005 WHICH WAS BEYOND THE PRESCRIBED TIME PERIOD OF REVISION I.E. UPTO 31.03.2005 AND HENCE INVALID. 3. THE ASSESSEE APPEALED TO THE CIT(A) WHO DISMISSE D THE ASSESEES APPEAL BY HOLDING THAT THE REVISED RETURN WAS NOT FILED WI THIN THE TIME ALLOWED U/S 139(5). 4. THE MATTER WAS CARRIED IN APPEAL BEFORE THE HON BLE ITAT WHO VIDE THEIR ORDER DATED 30.05.2008 HELD THAT THE A.O. HAD NOT T REATED THE RETURN REVISED U/S 139(5) AS INVALID OR BEYOND TIME WHILE THE CIT(A) H AD HELD SO AND THEREFORE, THEY SET ASIDE THE ORDER OF THE CIT(A) AS WELL AS OF THE AO AND DIRECTED THE AO TO MAKE FRESH ASSESSMENT IN ACCORDANCE LAW. AGGRIEVED BY THE SAME THE REVENUE FILED AN APPEAL BEFORE THE HONBLE PUNJAB & HARYANA HIGH COURT WHO VIDE THEIR ORDER DATED 12.08.2009 REMANDED THE MATTER BACK TO THE TRIBUNAL FOR FRESH DECISION ON MERITS . THE HONBLE HIGH COURT AS FOLL OWS:- LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT THE TR IBUNAL IN EXERCISE OF ITS APPELLATE POWERS, COULD SET ASIDE THE IMPUGNED ORDE RS ONLY AFTER RECORDING A FINDING THAT SUCH ORDERS WERE IN ANY WAY ERRONEOUS. LEARNED COUNSEL FOR THE ASSESSEE IS UNABLE TO SHOW ANY FINDING WHICH MAY HAVE BEEN RECORDED BY THE TRIBUNAL THAT THE ORDERS OF TH E ASSESSING OFFICER OR CIT (A) WERE ERRONEOUS IN ANY MANNER, MUCH LESS REASONS FOR SUCH A FINDING. WE ARE OF THE VIEW THAT THE ORDER OF THE TRIBUNAL I S PERVERSE AND UNSUSTAINABLE IN LAW AND BEYOND ITS AUTHORITY. THE APPEAL, THUS, INV OLVES SUBSTANTIAL QUESTION OF LAW, AS TO WHETHER THE TRIBUNAL COULD HAVE SET ASID E THE ORDERS OF LOWER AUTHORITIES WITHOUT RECORDING ANY FINDINGS OR ABOUT THEIR CORRECTNESS. THE SAME QUESTION, THUS, HAS TO BE ANSWERED IN FAVOUR OF THE REVENUE ACCORDINGLY, THE APPEAL IS ALLOWED, THE ORDER OF TH E TRIBUNAL IS SET ASIDE AND THE MATTER IS REMANDED TO THE TRIBUNAL FOR FRESH DECISI ON ON MERITS IN ACCORDANCE WITH LAW. THE PARTIES MAY APPEAR BEFORE THE TRIBUNAL FOR FURTHER PROCEEDINGS ON DECEMBER 14, 2009. 5. BEFORE US LD. AR SUBMITTED THAT THE LD. CIT(A) H AD WRONGLY REJECTED THE ASSESSEES APPEAL BY HOLDING THAT THE REVISED RETUR N WAS INVALID BEING BEYOND THE LIMITATION DATE. LD. AR PLEADED THAT THE ASSESS MENT YEAR INVOLVED IN THE PRESENT CASE IS 2003-04 AND THE LIMITATION OF FILIN G REVISED RETURN EXPIRES ON 31.03.2005 AS PER THE PROVISIONS OF SECTION 139(5) OF THE ACT. LD. AR STATED THAT IT IS AN ADMITTED FACT THAT THE ASSESSEE HAD FILED ITS REVISED RETURN ON 31.03.2005 AND THEREFORE, IT COULD NOT BE SAID THAT THE RETURN WAS DELAYED AND HENCE INVALID. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS BEFORE US. WE FIND THAT THE ORDER OF LD. CIT(A) HOLDING THE REVIS ED RETURN FILED ON 31.03.2005 AS INVALID BEING BEYOND THE PRESCRIBED LIMITATION IS I NCORRECT IN LAW. THE ASSESSMENT 3 YEAR INVOLVED IN THE PRESENT CASE IS A.Y. 2003-04 A ND THE LIMITATION FOR FILING REVISED RETURN AS PER SECTION 139(5) EXPIRED ON 31. 03.2005. IT IS AN UNDISPUTED FACT THAT THE REVISED RETURN WAS FILED BY THE ASSES SEE ON 31.03.2005. THE IMPUGNED REVISED RETURN THEREFORE COULD NOT BE HELD TO BE INVALID. LD. CIT(A) WE FIND HAS GIVE CONTRADICTORY FINDINGS ON THIS WHEREI N, AT PARA6 OF ITS ORDER IT HAS HELD, WHILE DISMISSING THE ASSESSEES APPEAL THAT I N THE INSTANT CASE THE TIME LIMIT FOR FILING REVISED RETURN EXPIRED ON 31.03.2005 AND THE REVISED RETURN WAS FILED ON 31.03.2005 WHICH WAS BEYOND THE LIMITATION DATE. TH E FINDING OF THE LD. CIT(A) AT PARA6 OF THIS ORDER ARE REPRODUCED HEREUNDER: IN THIS CASE, A RETURN OF INCOME WAS FILED ON 29/11 /2003. FURTHER, THE ASSESSEE FILED A REVISED RETURN ON 31/3/2005. UNDER THE PROVISIONS OF SUBSECTION (5) OF SECTION 139, IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB-SECTION (1) OF SEC. 139 DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THERE IN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FR OM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT, WHICHEVER IS EARLIER. IN THE INSTANT CASE, THE TIME LIMIT OF ONE YEAR FRO M THE END OF THE RELEVANT ASSESSMENT YEAR EXPIRED ON 31/3/2005 AND THE ASSESS MENT ORDER WAS PASSED ON 31/1/2006 WHEREAS THE REVISED RETURN WAS FILED ON 3 1/3/2005 I.E. BEYOND THE LIMITATION DATE. AS SUCH, THE ASSESSING OFFICER WAS JUSTIFIED IN NOT TAKING COGNIZANCE OF THE REVISED RETURN. THEREFORE, THE AS SESSING OFFICER HAD JUSTIFIABLY REJECTED THE CLAIM MADE BY THE ASSESSEE IN THE REVI SED RETURN OF INCOME SINCE THE ACTION OF THE ASSESSING OFFICER IS IN ACCORDANC E WITH THE LAW, THE APPEAL OF THE APPELLANT IS DISMISSED. IT IS EVIDENT THEREFORE, THAT THE LD. CIT(A) HAD ER RED IN HOLDING THE REVISED RETURN TO BE INVALID AND THUS HAD ERRED IN DISMISSING THE ASSESSEES APPEAL FOR THIS REASON. FURTHER, WE FIND THAT THE LD. CIT(A) HAS NO T DECIDED THE CASE ON MERITS. WE THEREFORE RESTORE THE ISSUE BACK TO THE CIT(A) T O DECIDE THE MATTER ON MERITS. 7. THE APPEAL OF THE ASSESSEE IS THEREFORE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/2016. SD/- SD/- (H.L. KARWA) (ANNAPURNA MEHROTRA) VICE PRESIDENT ACCOUNTANT MEMBER DATED : 04/03/2016 AG COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT, TH E CIT(A), THE DR