Sai Devlopers, Surat V. Dy.CIT CENTRAL CERCLE-4, SURAT

ITSSA 8/SRT/2018

AI Insights

The case involves Sai Developers, who filed appeals against the orders passed by the CIT(A) and the Assessing Officer concerning the assessment years 2009-10 to 2013-14. The appeals were related to the income declared by the assessee in response to a notice under section 153A of the Income Tax Act, following a search operation. The primary contention was regarding the acceptance of a revised return which declared a lower income than initially reported. The Assessing Officer and CIT(A) rejected the revised return as it was filed late, and the Tribunal upheld this decision, emphasizing that the legal framework does not allow for the revision of returns filed under section 153A after the stipulated time.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301753 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 7 month(s) 25 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 26-02-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-02-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 01-07-2018
• Other Referred Cases: Kumar Jagdish Chandra Sinha, 86 ITR 122 (SC)
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retraction; Revised return
• Section: 132; 139; 143(3); 142(1); 153A; 139(5); 143(2); 139(1); 139(4)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./IT(SS)A Nos.4 to 8/SRT/2018 Assessment Years: (2009-10 to 2013-14) (Physical Court Hearing) Sai Developers, AR House, Canal Road, Nr. Rajtilak Appartment, Surat. Vs. The DCIT, Central Circle-4, Surat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABJFS4342M (Revenue)/(Appellant) (Assessee)/(Respondent) Assessee by Shri Brijesh Ariwala, AR Respondent by Shri Ashok B. Koli, CIT(DR) Date of Hearing 09/02/2023 Date of Pronouncement 27/02/2023 आदेश / O R D E R PER DR. A. L. SAINI, AM: This is bunch of five appeals, filed by the assessee pertaining to the Assessment Years (AYs) 2009-10 to 2013-14, are directed against the separate orders passed by the Learned Commissioner of Income Tax (Appeals)-4, Surat [in short “the ld. CIT(A)”], which in turn arise out of separate assessment orders passed by the Assessing Officer under section 143(3) r.w.s. 153A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. Since the issues involved in all these appeals are common and identical, therefore we have clubbed these appeals and heard together and a consolidated order is being passed for the sake of convenience and brevity. The facts as well as grounds of appeals narrated in IT(SS)A No.8/SRT/2018, have been taken into consideration for deciding these appeals en masse. 3. Grounds of appeal raised by the assessee in lead case in IT(SS)A No.8/SRT/2018, are as follows: “01. The order of assessment is contrary to the facts and prejudicial to the assessee. Page | 2 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers 02. On appreciation of the facts and circumstances of the case, the Learned Commissioner of Income Tax (Appeals) has erred in upholding the action of the learned assessing officer determining the total income of the appellant as a sum of Rs. 44,73,110/-. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to law and based on erroneous understanding of the facts and deserves to be deleted. 03. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the learned assessing officer in computing the total income of the appellant at Rs. 44,73,110/- without considering the details and explanations of its income accrued or received from various sources during the year, furnished during the course of assessment proceedings. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts of the case and law and deserves to be deleted. 04. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) ought to have directed the learned assessing officer to re-compute the total income of the appellant at Rs. 29,80,810/- by accepting the explanations and claims put forward by the appellant by way of revised return of income or otherwise during the course of assessment proceedings. 05. On appreciation of the facts and circumstances of the case and law, the Learned Commissioner of Income Tax (Appeals) has erred in confirming the action of the Learned Assessing Officer in not accepting the revised return of income filed by the appellant on 03.03.2016 declaring a sum of Rs.29,80,810/- as income during the year. The action of the Learned Commissioner of Income Tax (Appeals) is contrary to the facts and circumstances of the case and law and deserves to be deleted. 06. The Appellant craves to add, amend, modify or alter the above grounds of appeal at any stage of appellate proceedings. 07. The Appellant humbly prays that the appeal be allowed in toto.” 4. Succinct facts are that a search action under section 132 of the Income Tax Act, 1961, was carried in Surat Metallics Group of Surat on 28.11.2013 and premises of assessee firm and its partners were also covered in the said action. Being a search case, a notice under section 153A of the Income Tax Act was issued to the assessee on 03.09.2014 and duly served upon the assessee. 5. In response to the said notice, the assessee furnished the return of its income on 07.01.2016 declaring total income at Rs.44,73,110/-. The assessee has offered an additional income of Rs.14,92,300/- in the return of income filed in response to the notice under section 153A of the Act. Page | 3 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers 6. Then after assessing officer issued a notice under section 143(2) of the Act on 08.01.2016 and duly served upon the assessee. Subsequently, a questionnaire and notices under section 142(1) were issued to the assessee and duly served on assessee. The assessee firm has revised its return of income and e-filed on 03.03.2016 declaring total income at Rs.29,80,810/-. 7. The assessing officer noted that notice under section 153A of the Act was issued on 03.09.2014 requesting assessee firm to file return of income within 30 days of receipt of this notice. The notice was sent vide speed post no. EG561490995IN on 04.09.2014 and served on the assessee. The Assessee- firm has further filed revised return of income under section 153A on 07.01.2016. The assessing officer noted that such revised return was late filed by assessee, by 14 Months. The assessing officer noted that section 139(4) of the I.T. Act is squarely applicable in this case also where return is filed under section 153A of the Act and therefore, revised return so filed by the assessee was treated as NON EST in the eye of law. Finally, the assessing officer accepted the amount declared by the assessee in the return of income filed by assessee under section 153A of the Act at Rs.44,73,110/-. 8. Aggrieved by the order of Assessing Officer, the assessee carried the matter in appeal before the ld. CIT(A), who has confirmed the action of the Assessing Officer, observing as follows: 6.0 DECISION: 6.1.1 I have carefully considered the submission of the appellant and perused the assessment order. The Grounds of appeal – Ground No.1 & 2 pertains AO has erred in making addition of Rs.14,92,300/- while completing the assessment and AO has erred in not accepting the revised return of Income filed by the appellant on 04.03.2016. In this case, a search operation u/s 132 of the Act was carried in Surat Metalics Group on 28.11.2013. The appellant had filed the original return of income u/s 139(1) on 12.10.2013 declaring total income at Rs.29,80,180/-. The AO issued notice u/s. 153A of the Act on 03.093.2014. The appellant in response to the notice u/s 153A of the Act filed a return of income on 07.01.2016 declaring total income of Rs.44,73,110/-. The notice u/s 143(2) was issued on 08.01.2016. The appellant e-filed revised return of income of 03.03.2016 declaring total income at Rs.29,80,810/-. The copy of the revised return of income was submitted before the AO on 04.03.2016. The AO held that notice u/s 153A was issued on 103.09.2014 requesting the appellant firm to file return of income within 30 days of receipt of this notice. The notice u/s 153A of the Act was sent vide speed post Page | 4 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers no.EG561490969IN on 04.03.2014. The appellant firm had filed the return of income u/s 153A on 07.01.2016. The AO held that return of income was filed late by 14 months by the appellant firm and as per the provisions of section 139(4) of the I.T. Act the revised return was treated as NON EST. 6.1.2 The appellant submitted that the return of income was filed in response to the notice u/. 153A of the Act in which he had offered under the head “income offered for taxation” profit before tax as per P& L A/c. to the tune of Rs.44,73,110/-. The appellant submitted that he had clearly mentioned by way of a note that “since the firm has not made any sales during the year under review, there is no profit and loss account maintained by the firm”. The appellant has declared Rs.44,73,110/- during the course of search itself and paid taxes thereon. The search team had not found any incriminating material during the search and in respect of one project named “Vettorio” the appellant had admitted income to the tune of Rs,.5,02,00,000/- on which tax has been paid. In that project the appellant could not obtain NA permission from the concerned authority and therefore could of the Act commence even construction activity. Since, the said project could not be implemented and completed by the appellant no income arose to the appellant. The appellant relied on several case laws in support of this contention. 6.1.3 On the perusal of the details, it is observed that the appellant has claimed to file a revised return of income u/s 153A of the Act in which the income shown in the RETURN OF INCOME u/s 153A has been withdrawn. The claim of the appellant is devoid of merits and law. The reference of the sections 153A shows that the return of income u/s 153A cannot be revised. The section u/s 153A is being is reproduced as under: Assessment in case of search or requisition. 153A. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003 22 [but on or before the 31st day of March, 2021], the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years and for the relevant assessment year or years referred to in clause (b), in the prescribed form and verified 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 required to be furnished under section 139; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made and for the relevant assessment year or years : 6.1.4 The opening of the section is by a non obstinate clause ‘not withstanding anything contained in section 139...’ this simply implies that section 139 is not applicable for the returns filed u/s 153A. The reference to section 139 in u/s Page | 5 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers 153A(1)(a) may tend to mislead to conclude that section 139 is applicable. But reference to section 139 is applicable to the extent of filling of return in prescribed form and verified in the manner as is prescribed by the statue. This is no way provides the taxpayer opportunity to revise the return filed u/s 153A. While the return filed cannot be revised the legitimate claims can be entertained before the AO or CIT(A). For example, any error apparent from record can be claimed before. For example if there is computation/factual error that can be rectified. The claims which are not claimed earlier and has not reference to the seized material cannot be claimed. Naturally the retraction of disclosure is not permitted by filling of revised return. 6.1.5 Even for the sake of argument, the claim of the appellant of filling the revised return of income u/s 153A of the Act is considered a valid claim then the question arises whether the revised return filed was a valid return as per the provisions u/s 139(4) of the Act. On this claim of the appellant, it is observed that the appellant has not filed any return of income in compliance to notice u/s 153A of the Act within the stipulated time as per the provisions of section 139(1) of the Act. The return was filed after 14 months of the issuance of notice u/s. 153A. The provisions of section 139(4) of the Act lays down that if an assessee has not furnished a return of his income within the time allowed to him under section 1398(1) or within the time allowed under a notice issued under section 142(1), he may furnish the return for any previous year at any before the expiry of one year from the end of the relevant assessment year or before compliance of the assessment, whichever is earlier. The appellant filed a revised return of income which was NON EST as per the provisions u/s 139(4) of Act. the contention of the appellant that no notice was issued u/s 143(2) of the Act within six months in which the original return was filed by the appellant and the AO had issued notice u/s 142(1) calling for filling of return of income is misplaced in law and facts. The notice u/s 143(2) dated 08.01.2016 was issued by the AO in relation to the return of income filed by the appellant u/s. 153A of the Act. The notice u/s. 142(1) of the Act was issued on 08.01.2016 wherein the appellant was asked to submit details on 19 issues and nowhere it was issued for filling of return of income. The contention of the appellant that the revised statement of income and revised return of income filed by the appellant is to be accepted by the AO is devoid of merits. 6.1.6 In regards to the appellant’s alternate claim that a revised computation of income had been filed during the assessment proceedings is again misplaced in law and facts. The issue arises here whether an assessee can modify/revise his return of income by way of filling a computation of income or invalid return of income after filling original return other than by way of filling revised return as contemplated under section 139(5)? It is quite possible and natural that in submitting a return, some bonafide omission or wrong statement may have occurred. In order to obviate this possibility the legislature has made provisions in section 139(5) enabling an assessee to furnish a revised return. Thus, the assessee has a right to file revised return if he discovered any omission or any wrong statement in the original filed return. Such a revised return can be furnished at any time before the expiry of one year from the end of the relevant assessment year or the completion of the assessment, whichever is earlier. Thus, the stature provides safeguard to an assessee in case he discovered any omission or wrong statement in his original return to file a revised return. The further requirement is that this Page | 6 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers omission or wrong statement in the original return must be due to bonafide inadvertence or mistake on the part of the assessee. 6.1.7 There is a distinction between a revised return and a correction in the originality filed return. If an assessee filed an application for correcting a return already filed or for making some amendments therein, it would not certainly mean that he had filed a revised return. Such a petition is not recognized under the income tax Act. The basis of assessment is the return filed by the assessee. If a revised return is filed under section 139(5) the assessment can be completed only on the basis of revised return and not otherwise. In absence of the revised return as provided under section 139(5), the Assessing Officer is bound to make assessment on the basis of original return. There is no provision under the Income Tax Act, to enable an assessee to revise his return of income by way of filling an computation of income and making a claim of rental income and job work u/s 44AD which has not been done in the ROI. In such revised statement of income is accepted, then the very purpose of enacting section 139(5) for filling revised return shall be frustrated and provision of said section becomes redundant. Similarly view has been expressed by the Apex Court in the case of Gurjargravures (P.) Ltd. 111 ITR 1 (SC). 6.1.8 The Assessing officer has no power to entertain fresh claim made by the assessee after filling of the original return other than by filling of revised return. Law is well settled that when the stature requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim ‘Empressio unius est exclusion alteris’. Meaning there by that if a stature provides for a thing to be done in particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (Nazir Ahmed v. Kind Emperor AIR 1936 PC 253; Ram Phal Kundu vs Kamal Sharma [2004] 2 SCC 759 and Indian Banks’ Association vs Devkala Consultancy Service AIR 2004 SC (2615). Similar view has been expressed in the Orissa Rural Housing Development Corpn. Ltd, 343 ITR 316 (Orissa). 6.19. In view of the above discussions and facts, it is evident that the return of income u/s 153A of the Act cannot be revised, in view of the specific exclusion of section 139 of the Act. Even the alternate argument of the appellant that return of income u/s 153A can be revised also does not help the cause of the appellant as this return of income was late as per the provisions of section 139(4) r.w.s. 139(5) of the Act and has been correctly treated as non-est. In view of the legislative provisions and judicial findings, the claim of the appellant has been rightly disallowed by the AO as the appellant never filed a valid revised return of income. Hence, the grounds of appeal are dismissed.” 7. In the result, the appeal of the assessee is dismissed.” 9. Aggrieved by the order of ld. CIT(A), the assessee is in further appeal before us. Page | 7 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers 10. Learned Counsel for the assessee submitted that the assessee can also revise the belated return. The assessee furnished the return of its income on 07.01.2016 declaring total income at Rs.44,73,110/- in response to notice under section 153A of the Act, and offered an additional income of Rs.14,92,300/- in the return of income filed in response to the notice under section 153A of the Act. However, later, the assessee thought that he offered an additional income of Rs.14,92,300/-, wrongly. Therefore, assessee again filed revised return u/s 153A on 03.03.2016 declaring total income at Rs.29,80,810/- ( Rs.44,73,110- Rs.14,92,300). Therefore, ld Counsel contended that total income at Rs.29,80,810/- may be accepted and addition sustained by ld CIT(A) may be deleted. 11. On the other hand, the Ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer, which we have already noted in our earlier para and is not being repeated for the sake of brevity. 12. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the facts of the case including the findings of the ld. CIT(A) and other material brought on record. We note that revised return filed by the assessee under section 153A of the Act is not within the legal framework. Even the alternate argument of the assessee that return of income u/s 153A can be revised also does not help the cause of the assessee as this return of income was late as per the provisions of section 139(4) r.w.s. 139(5) of the Act and has been correctly treated as non-est in the eye of law, by lower authorities. In view of the legislative provisions and judicial findings, the claim of the assessee has been rightly disallowed by the ld CIT(A), as the assessee never filed a valid revised return of income. We also do not agree with the arguments of the Ld. Counsel to the effect that belated return can be revised. We note that belated return filed by the assessee cannot be revised, therefore we do not agree with the arguments advanced by the Ld. Counsel of the assessee [Kumar Jagdish Chandra Sinha, 86 ITR 122 (SC)]. Page | 8 IT(SS)A.4 to 8/SRT/2018/AY.2009-10 to 2013-14 Sai Developers 13. The Assessing officer has no power to entertain fresh claim made by the assessee after filling of the original return other than by filling of revised return. Law is well settled that when the stature requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. We note that revised return filed by the assessee was very late, hence it cannot be recognized in the Act, as a valid revised return. Hence, we note that the conclusions arrived at by the CIT(A) are, therefore, correct and admit no interference by us. Hence, these appeals deserve to be dismissed by upholding the orders passed by the CIT(A) and they are dismissed. 14. In the result, these five appeals filed by the assessee in IT(SS)A Nos. 4 to 8/SRT/2018, are dismissed. Registry is directed to place one copy of this order in all appeals folder / case file(s). Order is pronounced on 27/02/2023 by placing the result on the Notice Board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 27/02/2023 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat