INCOME TAX OFFICER, WARD-2-1, JAIPUR V. SMT. VANDANA JAIN, JAIPUR

MA 131/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7527 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P C PARWAL CA DHK
• Keywords: Reopening of assessment; Revised return; Reason to believe
• Section: 142(1); 139(5); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAI PUR JH FOT; IKY 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 Y ADAV, AM M.A. NO. 131/JP/2018 (ARISING OUT OF ITA NO. 915/JP/2017) FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2008-09 I.T.O., WARD 2(1), JAIPUR. CUKE VS. SMT. VANDANA JAIN, PROP.-M/S VANDANA JEWELLERS, 1847, CHOBIYON KA CHOWK, GHEE WALON KA RASTA, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ACLPJ 2647 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA JHA (ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 11/01/2019 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/01/2019 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAY OF THIS MISC. APPLICATION, THE REVENUE IS SE EKING RECTIFICATION OF THE MISTAKE IN THE ORDER DATED 08/05/2018 OF THI S TRIBUNAL PASSED IN ITA NO. 915/JP/2017. 2. WE HAVE HEARD THE LD DR AS WELL AS THE LD AR OF T HE ASSESSEE AND CAREFULLY PERUSED THE IMPUGNED ORDER OF THE TRIBUNAL . THE GRIEVANCE OF THE REVENUE AS STATED IN THE MISC. APPLICATION IS A S UNDER: MA 131/JP/2018_ ITO VS VANDANA JAIN 2 IT IS SUBMITTED THAT THE DECISION OF THE HONBLE I TAT THAT SECOND BELATED RETURN WHICH IS A RECTIFIED RETURN CANNOT BE HELD TO BE IN VALID IS NOT JUSTIFIABLE, AS THE RETURN FILED WITHIN THE TIME ALLOWED U/S 139(1) OR WITHIN THE TIME ALLOWED UNDER NOTICE ISSUED U/S 142(1) CAN BE REVISED U/S 139(5) BUT THE BELATED RETURN FILED U/S 139(4) CANNOT BE REVISED U/S 139(5) OF THE IT A CT, 1961. SINCE, THERE IS NO PROVISION IN THE ACT TO RECTIFY THE BELATED RETURN, DECISION OF THE HONBLE ITAT TO CONSIDER THE SECOND BELATED RETURN AS A RECTIFIED R ETURN IS NOT JUSTIFIABLE. FURTHER THERE IS NO CONCEPT OF RECTIFIED RETURN IN THE INCO ME TAX ACT, 1961. ANY RECTIFICATION IN THE RETURN OF INCOME ASSUMES THE F ORM OF A REVISED RETURN AND FILING OF REVISED RETURN IS PERMISSIBLE ONLY WHEN R ETURN OF INCOME HAS BEEN FURNISHED U/S 139(1) OF THE ACT. HENCE IN THIS CASE RETURN WAS FILED U/S 139(4) AND THIS RETURN HAS BEEN REVISED, THOUGH WITHIN THE TIME ALLOWED UNDER THE PROVISIONS OF LAW, BUT IT IS A REVISED RETURN FILIN G OF WHICH IS SUBJECT TO THE CONDITION THAT THE ORIGINAL RETURN U/S 139(1) HAS B EEN FILED WHICH IS NOT THE CASE IN THE MATTER UNDER CONSIDERATION. THUS, THE REVENUE IS SEEKING RECALLING OF THE ORDER ON THE GROUND THAT THE ASSESSEE FILED A BELATED RETURN AFTER THE LIMIT ATION PROVIDED U/S 139(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) AND THEREAFTER FILED A REVISED RETURN U/S 139(5) OF THE ACT WHICH I S NOT PERMITTED WHEN THE ORIGINAL RETURN WAS FILED BELATEDLY. THIS CONTEN TION OF THE REVENUE IS AGAINST THE DECISION TAKEN BY THE TRIBUNAL BUT NOT P OINTING OUT ANY APPARENT MISTAKE WHICH CAN BE RECTIFIED U/S 254(2) O F THE ACT. WE FURTHER NOTE THAT THE CONTENTIONS AS RAISED IN THE MISC. APPLICATION WERE ALSO RAISED AT THE TIME OF HEARING OF THE APPEAL AN D THE TRIBUNAL WHILE MA 131/JP/2018_ ITO VS VANDANA JAIN 3 PASSING THE IMPUGNED ORDER HAS ALREADY DEALT WITH A LL THESE ISSUES IN PARA 2.4 AS UNDER: 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THIS CASE IS WHET HER AN INCOME WHICH IS ALREADY DECLARED IN THE BELATED RETURN FILED BY THE ASSESSEE CAN BE SUBJECT TO REASSESSMENT U/S 148. TO APPRECIATE THE ISSUE, IT WOULD BE RELEVANT TO CONSIDER THE FOLLOWING DATES RELEVANT T O THE ISSUE:- S. NO. PARTICULARS DATE INCOME DECLARED/ASSESSED 1. DUE DATE OF FILING OF RETURN 31/07/2008 - 2. DATE OF FILING OF RETURN U/S 139(4) 26/02/2009 RS. 1,10,460/ - 3. DATE OF FILING OF SECOND BELATED RETURN 17/11/2009 RS. 5,50,290/ - 4. DATE OF ISSUE OF NOTICE U/S 148 26/03/2015 - 5. DATE OF ORDER U/S 143(3)/148 31/12/2015 RS. 5,50,290/ - FROM THE ABOVE FACTS AND DATES, IT IS NOTED THAT AS SESSEE IN HIS SECOND BELATED RETURN FILED ON 17.11.2009 (PB 3-8) HAS DEC LARED INCOME OF RS.5,50,290/-. THE FACT OF FILING THIS RETURN WAS A LSO INTIMATED TO ITO, WARD-2(1), JAIPUR VIDE LETTER DATED 17.11.2009 (PB 12) IN RESPONSE TO HIS LETTER DATED 06.11.2009 (PB 11) AND TO ITO, WARD-1( 1), JAIPUR VIDE LETTER DATED 25.01.2010 (PB 16) IN RESPONSE TO HIS LETTER DATED 12.01.2010 (PB 15). IT IS FURTHER NOTED THAT IN THE SECOND BELATED RETURN FILED ON 17.11.2009, THE ASSESSEE HAS DECLARED SHORT TERM CA PITAL GAIN ON SALE OF PROPERTY BY CONSIDERING THE SALES CONSIDERATION AT RS.5,90,129/- (BEING, SHARE OF RS.11,80,258/-) WHEREAS THE REASONS FOR REOPENING OF ASSESSMENT U/S 148 (PB 9-10) IS THAT CAPITAL GAIN I NCOME ON SALE OF PROPERTY OF RS.11,80,258/- HAS ESCAPED ASSESSMENT I N AS MUCH AS ASSESSEE HAS NOT FILED THE RETURN FOR AY 2008-09. T HESE FACTS SHOWS THAT NOTICE U/S 148 IS ISSUED WITHOUT VERIFICATION OF RE CORDS AND THEREFORE SUCH NOTICE IS NOT VALID IN THE EYES OF LAW PARTICU LARLY WHEN THE INCOME MA 131/JP/2018_ ITO VS VANDANA JAIN 4 WHICH IS STATED TO HAVE ESCAPED ASSESSMENT HAS ALRE ADY BEEN DISCLOSED TO THE DEPARTMENT BY FILING THE RETURN OF INCOME. I T IS PERTINENT TO MENTION THAT NOTICE U/S 148 CAN BE ISSUED ONLY WHEN AO HAS REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT. AN INCO ME CAN BE SAID TO HAVE ESCAPED ASSESSMENT IF IT IS NOT DECLARED IN TH E RETURN FILED BEFORE THE AO. IN THE PRESENT CASE, THE INCOME WHICH IS ST ATED TO HAVE ESCAPED ASSESSMENT HAS BEEN DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME FILED ON 17.11.2009. THE RETURN SO FILED IS A VALID BELATED RETURN AS SUCH RETURN U/S 139(4) CAN BE FURNISHED AT ANY TIME BEFO RE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT AY OR BEFORE THE COMPLETION OF ASSESSMENT WHICHEVER IS EARLIER. THUS, THE TIME AVA ILABLE FOR FILING THE BELATED RETURN WAS UPTO 31.03.2010 WHEREAS THE RETU RN WAS FILED ON 17.11.2009. THIS IS ONLY A RECTIFIED RETURN AND NOT A REVISED RETURN. THE AO COULD HAVE ISSUED NOTICE U/S 143(2) FOR SCRUTINI SING THIS RETURN BY 30.09.2010, I.E. WITHIN 6 MONTHS FROM THE END OF TH E FY IN WHICH RETURN IS FILED. THERE IS NO PROVISION IN THE LAW WHICH DE BARRED AN ASSESSEE FROM FILING A SECOND BELATED RETURN. IN CASE OF N.C .E. (P) LTD. VS. ACIT 65 ITD 214 (KOL.) (TRIB.), IT IS HELD THAT THOUGH NO R EVISED RETURN UNDER S. 139(5) CAN BE FILED WHERE ORIGINAL RETURN WAS FILED UNDER S. 139(4) BUT IN SUCH A CASE, REVISED RETURN SO FILED MAY BE TREATED AS SECOND RETURN OR LATEST RETURN UNDER S. 139(4). THUS, THE RETURN FIL ED ON 17.11.2009 IS A VALID BELATED RETURN IN WHICH INCOME FROM CAPITAL G AIN HAS BEEN DECLARED BY THE ASSESSEE. THEREFORE, AN INCOME WHIC H IS ALREADY DECLARED BY THE ASSESSEE IN A VALID RETURN OF INCOM E CANNOT BE SUBJECT MATTER OF REASSESSMENT U/S 147. IN THESE CIRCUMSTAN CES, THE NOTICE ISSUED U/S 148 IS ILLEGAL AND BAD IN LAW. IN FIRST APPEAL, THE LD. CIT(A) HAS NOT ACCEPTED THE CONTENTION OF ASSESSEE FOR THE REA SON THAT SECOND BELATED RETURN FILED BY THE ASSESSEE IS INVALID RET URN OF INCOME BY RELYING ON THE DECISION OF HON'BLE SUPREME COURT IN CASE OF KUMAR JAGDISH CHANDRA SINHA 220 ITR 67. IN THIS CASE THE HONBLE SUPREME COURT WITH MA 131/JP/2018_ ITO VS VANDANA JAIN 5 REFERENCE TO THE REVISED RETURN AND THE RECTIFIED R ETURN HAS MADE THE FOLLOWING OBSERVATION AT PAGE 75 OF THE ORDER:- THE HIGH COURT HAS DRAWN A DISTINCTION BETWEEN A R EVISED RETURN AND A RECTIFIED RETURN. MAY BE, THERE IS A DISTINCTION. W E ARE NOT CONCERNED HERE WITH A RECTIFIED RETURN BUT WHAT WAS AVOWEDLY A REV ISED RETURN AND WHICH WAS IN TRUTH A NEW RETURN. THUS, THE HONBLE SUPREME COURT HAS ONLY STATED THA T A BELATED RETURN U/S 139(4) CANNOT BE REVISED. HOWEVER, THERE IS NO EMBA RGO THAT A BELATED RETURN CANNOT BE RECTIFIED OR A SECOND BELATED RETURN CANN OT BE FILED WITHIN THE TIME AVAILABLE FOR FILING THE BELATED RETURN. SIMILARLY, THE DECISION OF RAJASTHAN HIGH COURT IN CASE OF VIMAL CHAND VS. CIT 155 ITR 593 RE LIED BY CIT(A) IS NOT RELEVANT TO DECIDE THE ISSUE UNDER CONSIDERATION. THEREFORE, THE SECOND BELATED RETURN, WHICH IS A RECTIFIED RETURN CANNOT BE HELD TO BE IN VALID AND CONSEQUENTLY, AN INCOME WHICH IS ALREADY DECLARED IN SUCH RETURN CAN NOT BE CONSIDERED AS AN INCOME ESCAPING ASSESSMENT SO AS TO INVOKE THE JURI SDICTION U/S 147. IN VIEW OF THE ABOVE DELIBERATIONS, IT IS HELD THAT THE ORDER PASSED BY THE AO U/S 148/143(3) IS ILLEGAL AND THEREFORE, THE SAME IS QU ASHED. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED. THUS, IT IS CLEAR THAT THE TRIBUNAL HAS PASSED THE OR DER AFTER CONSIDERING ALL THESE RELEVANT FACTS AS WELL AS THE CONTENTIONS OF THE REVENUE AND THEREFORE, IF THE REVENUE IS AGGRIEVED BY THE SAID DECISION OF THE TRIBUNAL, WHICH CAN BE CHALLENGED BEFORE THE HON'BLE HIGH COURT. THUS, THIS IS NOT A CASE OF MISTAKE APPARENT ON RECORD TH OUGH IT MAY BE AN ERROR OF JUDGMENT IF CONSIDERED BY THE REVENUE, THE REMEDY FOR THE SAME IS ONLY AN APPEAL BEFORE THE HON'BLE HIGH COURT AND NOT THE APPLICATION U/S 254(2) OF THE ACT. THE JURISDICTION OF THE TRIBUN AL U/S 254(2) OF THE ACT IS VERY LIMITED AND CIRCUMSCRIBE TO RECTIFY THE APPARENT MISTAKE IN THE MA 131/JP/2018_ ITO VS VANDANA JAIN 6 ORDER AND NOT TO REVISE OR REVIEW THE DECISION TAKEN BY THE TRIBUNAL. HENCE, IN THE PROCEEDINGS U/S 254(2) OF THE ACT, TH E TRIBUNAL CANNOT GO TO REEVALUATE THE FACTS AND FINDINGS. ACCORDINGLY, WE DO NOT FIND ANY MERIT OR SUBSTANCE IN THE MISC. APPLICATION FILED B Y THE REVENUE AND THE SAME IS DISMISSED. 3. IN THE RESULT, THIS MISC. APPLICATION OF THE REV ENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH JANUARY, 2019. SD/- SD/- FOE FLAG ;KNO FOT; IKY JKO (VIKRAM SINGH YADAV) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11 TH JANUARY, 2019 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE I.T.O., WARD 2(1), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- SMT. VANDANA JAIN, 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 6. XKMZ QKBZY @ GUARD FILE (MA NO. 131/JP/2018) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR