Asstt.CIT Cir.-2,, Nashik v. M/s. United Builders, Nashik

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO ACCOUNTANT MEMBER ITA NO. 881/PN/2009 (ASSESSMENT YEAR: 2005-06) ASSTT. COMMISSIONER OF INCOME-TAX RANGE 2 NASHIK .. APPELLANT VS. UNITED BUILDERS .. RESPOND ENT UNITED HOUSE KUKKARNI COLONY GANGAPUR ROAD NASHIK PAN AAAFU1741L APPELLANT BY: SHRI HEMANT C LEUVA RESPONDENT B Y: NONE ORDER PER D. KARUNAKARA RAO A.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-II NASHIK DAT ED 15.5.2009 WHICH IN TURN HAS ARISEN FROM AN ORDER DATED 16.12.2008 PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE INCOME-TAX ACT 1961 (I N SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2006-07. 2. THE GROUND NOS. 1 & 2 RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD CIT (A) ERRED IN ACCEPTING THE REVISED RETURN WHICH IS IN CONTRAVENTION TO THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF ADDL. CIT V RADEY SHYAM (1980) 123 ITR 125 (ALL). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E THE LD CIT (A) ERRED IN NOT CONSIDERING THE FACT THAT ASSESSEE HAS FILED REVISED RETURN ONLY AFTER DETECTION OF UNDISCLOSED INVESTMENT IN PURCHASE OF LAND DURING THE COURSE OF SURVEY ACTION. 2. THE RELEVANT FACTS ARE THAT IN THIS CASE THE ORI GINAL RETURN OF INCOME DECLARING LOSS OF RS 15 69 393/- WAS FILED BY THE ASSESSEE ON 31. 10.2006. A ITA NO 1067/PN/09 SANSUI ELECTRONICS P LTD. PUNE 2 SURVEY ACTION UNDER SECTION 133A WAS CARRIED OUT ON 18.7.2007 IN THE BUSINESS PREMISES OF THE ASSESSEE AS A CONSEQUENTIAL ACTION UNDER SECTION 132 IN THE CASE OF SHRI CHANDAN MULCHAND PARWANI AND SHRI BHAR AT MULCHAND PARWANI OF PUNE. THE ASSESSEE SURRENDERED RS 50 LAKHS AS HIS U NDISCLOSED INVESTMENT IN PURCHASE OF LAND. ASSESSEE FILED A REVISED RETURN O F INCOME DECLARING TOTAL INCOME OF RS 29 57 650/- ON 31.7.2007. IN RESPONSE TO A NOTICE ISSUED BY THE ASSESSING OFFICER REQUIRING HIM TO SHOW CAUSE AS TO WHY THE REVISED RETURN FILED BY HIM SHOULD NOT BE TREATED AS INVALID RETURN T HE ASSESSEE SUBMITTED HIS REPLY WHICH WAS NOT ACCEPTED BY THE ASSESSING OFFICER WHO HELD THAT THE REVISED RETURN FILED WAS INVALID UNDER SECTION 139(5) OF THE ACT. ACCORDINGLY THE ASSESSING OFFICER PROCEEDED TO FINALIZE THE ASSESSMENT ON THE BASIS OF THE ORIGINAL RETURN FILED BY THE ASSESSEE COMPUTING THE TOTAL INCOME AT RS 30 57 393/-. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE THE FIRST APPE LLATE AUTHORITY. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DECIDED THE ISSUE IN F AVOUR OF THE ASSESSEE BY OBSERVING AS FOLLOWS: 5.2 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER OF THE AO AND THE SUBMISSION OF THE APPELLANT. THE APPELLANT HAS FILED ORIGINAL RETURN FOR THE AY 2006-07 U/S 139(1) OF THE ACT ON 31.10.2006. THE RETURN WAS REVISED BY OF FERING TO TAX ADDITIONAL INCOME AFTER SURVEY ACTION U/S 133A ON 18.7.2007. THEREFORE THE RETURN FILED BY THE APPELLANT MAY NOT BE A VOLUNTARY RETURN AND THE ADDITIONAL INCOME MIGHT HAVE BEEN OFFERED TO TAX AS A RESULT OF SURVEY ACTION. HOWEVER THIS DOES NO T MAKE THE REVISED RETURN FILED U/S 139(5) OF THE ACT AS INVALID RETURN. SECTION 1 39(5) RELATING TO FILING OF REVISED RETURN REQUIRES THAT THE ORIGINAL RETURN SHOULD HAV E BEEN FILED U/S 139(1) OF THE ACT AND AFTER NOTICING ANY WRONG STATEMENT THEREIN THE REVISED RETURN IS TO BE FILED BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE R ELEVANT ASSESSMENT YEAR. IN THE CASE UNDER APPEAL THE APPELLANT HAS COMPLIED WITH BOTH THE CONDITIONS THAT THE ORIGINAL RETURN WAS FILED U/S 139(1) ON 31.10.2006 AND THE REVISED RETURN DECLARING ADDITIONAL INCOME WAS FILED ON 31.7.2007 I.E. BEFOR E THE EXPIRY OF ONE YEAR FROM THE END OF THE AY 2006-07 (I.E. BEFORE 31.3.2008) AND A LSO BEFORE THE COMPLETION OF THE ASSESSMENT ON 16.12.2008 . IN VIEW OF THE ABOVE IT MAY BE STATED THAT THE A OS OBSERVATION IN THIS REGARD IN THE ASSESSMENT ORDER IS MISPLACED EVEN THOUGH THE RETURN OF INCOME WAS NOT VOLUNTARILY REVISED BY THE APPELLANT . THEREFORE GROUND NOS 2 & 3 STAND ALLOWED. (EMPHASIS SUSPPLIED) 4. AGAINST THE AFORESAID DECISION OF THE COMMISSION ER OF INCOME-TAX (APPEALS) REVENUE IS IN APPEAL BEFORE US. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE LEARNE D DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE. NONE APPEARED ON B EHALF OF THE ASSESSEE. ITA NO 1067/PN/09 SANSUI ELECTRONICS P LTD. PUNE 3 FROM THE PERUSAL OF THE ORDERS WE FIND THAT AO FAI LED PROVIDE ANY VALID REASON TO REJECT THE REVISED RETURN OF INCOME FILED BY THE AS SESSEE. IN OUR OPINION IT IS TOTALLY UNFAIR THAT THE IMPUGNED REVISED RETURN WAS REJECTED WITHOUT ASCRIBING ANY REASONS. AFTER CAREFULLY CONSIDERING THE SUBMISSI ONS MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AS WELL AS FINDINGS GIV EN BY THE COMMISSIONER OF INCOME-TAX (APPEALS) WE ARE OF THE OPINION THAT NO INTERFERENCE IS CALLED FOR IN THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEAL S) AND THE HIGHLIGHTED PARTS OF THE ORDER OF THE CIT(A) IN PARA 5.2 REPRODUCED A BOVE IS PROPER AND THE SAME IS UPHELD. WE ARE IN FULL AGREEMENT WITH THE REASONIN G OF THE COMMISSIONER OF INCOME-TAX (APPEALS) THAT THE ASSESSEE HAS COMPLIED WITH BOTH THE CONDITIONS OF SECTION 139(5) AS THE ORIGINAL RETURN WAS FILED U/S 139(1) ON 31.10.2006 AND THE REVISED RETURN DECLARING ADDITIONAL INCOME WAS FILE D ON 31.7.2007 I.E. BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE AY 2006-07 ( I.E. BEFORE 31.3.2008) AND ALSO BEFORE THE COMPLETION OF THE ASSESSMENT ON 16. 12.2008. IN THIS VIEW OF THE MATTER WE FIND NO INFIRMITY IN THE ORDER OF THE CO MMISSIONER OF INCOME-TAX (APPEALS) AND ACCORDINGLY AFFIRM HIS DECISION. RE VENUE FAILS ON THESE GROUNDS OF APPEAL. 6. IN THE RESULT APPEAL OF THE REVENUE IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON THIS 28TH DAY OF FE BRUARY 2011. SD/- SD/- (I.C. SUDHIR) (D. KARUNAKA RA RAO) JUDICIAL MEMBER ACCO UNTANT MEMBER PUNE DATED: 28 TH FEBRUARY 2011 COPY TO:- 1) UNITED BUILDERS NASHIK 2) THE ACIT R-2 NASHIK 3) THE CIT (A)-II NASHIK 4) THE CIT-I NASHIK 5) THE DEPARTMENTAL REPRESENTATIVE B BENCH I.T.A.T. PUNE. BY ORDER TRUE COPY ITA NO 1067/PN/09 SANSUI ELECTRONICS P LTD. PUNE 4 ASST. REGISTRAR I.T.A.T. PUNE B