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2017 (12) TMI 179 - AT - Income TaxValidity of revised return - assessee being a working partner in VCE, and of it being an assessee covered u/s. 44AB - Held that:- In the present case, the claim is for negation or declaring invalid the assessee’s return in law and, consequently, the assessment framed in pursuance thereto, which the assessee is well entitled to make, provided there is no dispute qua facts required to determine the issue arising. Where the relevant facts are not on record, or the material or record points otherwise, or are to be brought on record, the claim cannot be admitted. At this stage, we may also clarify another aspect of the matter. It may be argued that the partnership deed of VCE shall bear out whether the assessee is or is not a working partner in the said firm for the relevant year. True, but the instrument of partnership shall be a part of the assessment record of the said firm and not of its partners. Further, even if, for the sake of argument, the assessment record or return for the earlier year indicates the assessee to be not a working partner, it cannot be said that the same position continues, or its accounts are subject to audit under law for the current year. That is, there is nothing on record to exhibit that the assessee is a working partner or not so, i.e., one way or the other, except the averment per Gd. 5.3 supra. Rather, the contrary claims by the assessee, stating the due date filing of return as 31.08.2012 (in the computation of income for the year), while at the same time preferring a revised return, i.e., u/s. 139(5), as well as contending per the grounds of appeal to be a working partner, so that the due date is 30.09.2012, makes his claim untenable, i.e., in the absence of any material establishing same. Our order stating the assessee’s legal claim as to the invalidity of his second ‘return’ as being inadmissible in view of indeterminate facts, being in fact subject to contrary claims and, in any case, answerable only against the assessee in view of its avowed stand in the assessment (filing a revised return, which can only be u/s. 139(5)) and appellate proceedings (per Gd.5.3 supra). The Revenue cannot treat the assessee’s first return as a valid return u/s. 139(1), so that it could be revised u/s. 139(5), and at the same time charge interest u/s. 234A (i.e., for the delay in filing the return), implying it to be a belated return, filed u/s. 139(4), again showing, if that was still necessary, indeterminate facts. We, accordingly, direct its deletion.
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