Kamal Nayan Specific Family Trust, Gandhinagar V. The Income tax Officer,Ward-4, Mehsana

ITA 794/AHD/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 1626 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 31-03-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 10-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SONIA KUMAR
• Keywords: Revised return
• Section: 139(5); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHM EDABAD , (BEFORE SHRI ANIL CHATURVEDI, A.M. & SHRI KUL BHARA T, J.M.) ( , !'# $ , ! %& ) ITA NO. 794/AHD/2012 (ASSESSM ENT YEAR: 2006-07) KAMAL NAYAN SPECIFIC FAMILY TRUST, PROP. OF RADHE PACKAGING, BLOCK NO.1075, KADI CHATTRA; ROAD CHHATRAL, DIST. GANDHINAGAR, VS. INCOME-TAX OFFICER, WARD-4, MEHSANA PAN NO. AAATK8058L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HIMANSHU SHAH, A.R. RESPONDENT BY : SMT. SONIA KUMAR, SR. D.R. DATE OF HEARING : 31-03 -2016 DATE OF PRONOUNCEMENT : 03-05-2016 ( )/ ORDER PER ANIL CHATURVEDI, ACCOUNTANT MEMBER THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF CIT(A), GANDHINAGAR, DATED 06.02.2012 FOR THE ASSESSMENT YEAR 2006-07. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER: 3. THE ASSESSEE IS AN ASSOCIATION OF PERSONS (TRUST ) WHICH DERIVES INCOME FROM MANUFACTURING OF BOXES FROM CRAFT AND DUPLEX PAPER. THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2006-07 ON 31.12.2006 DECLARING TOTAL LOSS OF RS.33,36,151/-. THE CASE WAS SELECTED FOR SCRUTINY AND THEREAFTER A SSESSMENT WAS FRAMED ITA NO.794/AHD/12 A.Y. 2006-07 (KAMAL NAYAN SPECIF IC FAMILY TRUST VS. ITO) 2 U/S.143(3) VIDE ORDER DATED 30.12.2008 AND THE TOTA L INCOME WAS DETERMINED AT RS.2,23,033/-. AGGRIEVED BY THE ORDER OF ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) WHO VIDE ORDER DATED 0 6.02.2012 (IN APPEAL NO. CIT(A) /GNR/186/2008-09) GRANTED PARTIAL RELIEF TO THE ASSESSEE. AGGRIEVED BY THE ORDER OF LD. CIT(A), ASSESSEE IS NOW IN THE APP EAL BEFORE US AND HAS RAISED THE FOLLOWING GROUNDS: 1) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE AP PELLANT'S CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GROSSLY ER RED IN POINTS OF LAW AND FACTS. 2) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANT'S CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GROSSLY ER RED IN CONFIRMING ADDITION REGARDING ESTIMATING NET PROFIT OF RS.2,23,033 BEIN G 15% OF THE TOTAL SALES. 3) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANT'S CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GROSSLY ER RED IN HOLDING THAT GROUND REGARDING DISALLOWANCE OF JOB WORK EXPENSES RS.86,4 40 ON ACCOUNT OF ADDITION MADE AFTER REJECTION OF BOOKS OF ACCOUNT ON AN ESTI MATE BASIS. 4) IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANT'S CASE, THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) HAS GROSSLY ER RED IN CONFIRMING DISALLOWANCE OF DEDUCTION RS. 4,42,159. ON ACCOUNT OF DEBIT BALANCE OF EXCISE AND SALES TAX. 3.1 SUBSEQUENTLY, VIDE LETTER DATED 19 TH JANUARY, 2016, ASSESSEE HAS RAISED ADDITIONAL GROUND WHICH READS AS UNDER: IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPEL LANT'S CASE, THE LEARNED ASSESSING OFFICER HAS GROSSLY ERRED IN NOT ALLOWING LOSS AS P ER REVISED RETURN OF INCOME. THE ORIGINAL RETURN OF INCOME WAS FILED ON 31.12.2006 W HICH WAS WITHIN THE EXTENDED PERIOD VIDE PRESS RELEASE DATED 16.10.2006. APPELLANT FIL ED VALID REVISED RETURN AND THE LOSS AS PER REVISED RETURN OF INCOME RS.8,30,662/- SHOULD B E ALLOWED TO BE CARRIED FORWARD. 4. BEFORE US, AT THE OUTSET, LD. A.R. SUBMITTED THA T ALL THE GROUNDS ARE INTER- CONNECTED AND THEREFORE THEY CAN BE CONSIDERED TOGE THER. HE SUBMITTED THAT ASSESSEE HAD FILED ITS ORIGINAL RETURN ON 31.12.200 6. SUBSEQUENTLY, ASSESSEE FILED REVISED RETURN OF INCOME ON 20.04.2007 WHICH WAS NO T CONSIDERED BY THE LOWER AUTHORITIES BECAUSE ACCORDING TO THEM, THE ORIGINAL RETURN FILED BY THE ASSESSEE ON ITA NO.794/AHD/12 A.Y. 2006-07 (KAMAL NAYAN SPECIF IC FAMILY TRUST VS. ITO) 3 31 ST DECEMBER-2006 WAS BELATED RETURN AND THEREFORE ASS ESSEE COULD NOT REVISE RETURN AND, THEREFORE, THE REVISED RETURN OF INCOME FILED BY THE ASSESSEE ON 20/4/2007 WAS NO RETURN IN THE EYES OF LAW. BEFORE US, LD.A.R. SUBMITTED THAT CENTRAL BOARD OF DIRECT TAXES (CBDT) HAD EXTENDED T HE LAST DATE OF FILING INCOME TAX RETURN IN THE STATE OF GUJARAT FROM 31 ST OCTOBER, 2006 TO 31 ST DECEMBER-2006. IN VIEW OF THE AFORESAID CIRCULAR OF CBDT THE ORIGI NAL RETURN FILED BY THE ASSESSEE WAS THEREFORE WITHIN THE TIME LIMIT PRESCRIBED U/S .139(1) OF THE ACT AND, THEREFORE, THE REVISED RETURN FILED BY THE ASSESSEE SHOULD HAV E BEEN TAKEN INTO CONSIDERATION. IN SUPPORT OF THE CONTENTION OF CBDT HAVING EXTENDE D THE TIME LIMIT FOR FILING THE RETURN OF INCOME HE PLACED ON RECORD THE COPY OF TH E PRESS RELEASE DATED 16.10.2006. HE THEREFORE SUBMITTED THAT SINCE THE A.O. HAS NOT CONSIDERED THE REVISED RETURN OF INCOME FILED ON 20/04/2007, THE M ATTER MAY BE REMITTED BACK TO THE LOWER AUTHORITIES TO DECIDE THE MATTER AFRESH A FTER CONSIDERING THE REVISED RETURN. LD. D.R. ON THE OTHER HAND SUPPORTED THE O RDERS OF A.O. AND LD.CIT(A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IT IS AN UNDISPUTED FACT THAT ASSESSEE HAD FILED THE O RIGINAL RETURN OF INCOME FOR A.Y. 2006-07 ON 31.12.2006. IT IS ALSO A FACT THAT CBDT HAD EXTENDED THE LAST DATE OF FILING INCOME TAX RETURN AND TAX AUDIT REPORT IN TH E STATE OF GUJARAT FOR AY 2006- 07 FROM 31 ST OCTOBER, 2006 TO 31 ST DECEMBER, 2006. IN VIEW OF THE ABOVE EXTENSION OF TIME LIMIT BY CBDT, THE ORIGINAL RETUR N FILED BY THE ASSESSEE ON 31 ST DECEMBER CANNOT BE CONSIDERED TO BE A BELATED RETUR N BUT WILL HAVE TO BE CONSIDERED AS RETURN FILED U/S.139(1) OF THE ACT. AS PER THE PROVISIONS OF SECTION 139(5) OF THE ACT, THE PERSON WHO HAS FILED THE RET URN U/S.139(1) OF THE ACT CAN FURNISH THE REVISED RETURN BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASS ESSMENT, WHICHEVER IS EARLIER. IN THE PRESENT CASE, ASSESSEE HAS FILED THE REVISED RETURN ON 20/4/2007 AND THE ASSESSMENT WAS COMPLETED ON 31.12.2008 AND THEREFOR E THE REVISED RETURN OF ITA NO.794/AHD/12 A.Y. 2006-07 (KAMAL NAYAN SPECIF IC FAMILY TRUST VS. ITO) 4 INCOME FILED BY ASSESSEE ON 20/04/2007 IS WITHIN TH E TIME PRESCRIBED U/S.139(5) OF THE ACT. IN THE PRESENT CASE, SINCE THE REVISED RE TURN FILED HAS NOT BEEN CONSIDERED BY THE AO, WE ARE OF THE VIEW THAT THE ASSESSMENT N EEDS TO BE FRAMED ON THE BASIS OF REVISED RETURN OF INCOME AND, THEREFORE THE MATT ER NEEDS TO BE RE-EXAMINED AT THE END OF AO. WE, THEREFORE, REMIT THE ISSUE BACK TO THE FILE OF AO. NEEDLESS TO STATE THAT THE AO SHALL GRANT SUFFICIENT OPPORTUNIT Y OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE AND PROMPTL Y FURNISH ALL THE REQUIRED DETAILS CALLED FOR BY THE A.O. SINCE, THE MATTER IS REMI TTED BACK TO THE FILE OF A.O., WE HAVE NOT ADJUDICATED THE OTHER GROUNDS ON MERIT. T HUS, THIS GROUND OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON - 04 - 201 6. SD/- SD/- (KUL BHARAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED /04/2016 ORDER PRONOUNCED ON 03/05/2016 SD/- S D/- SKY AC (JM) (AM) S K SINHA COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD