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2025 (5) TMI 592 - AT - Income TaxValidity of the assessment done u/s 143(3) - assessment based on revised return - additional receipts shown in the revised return as income from other sources due to lack of verifiable documentary evidence and non-reflection in Form 26AS and bank accounts - HELD THAT - The order u/s 143(1) is not considered to be an assessment within the meaning of section 139(5) that would prevent an assessee from filing a revised return after the return of income originally filed being processed u/s 143(1). It may not be out of place to mention that the provisions of section 143(1) had been revised w.e.f. 1.04.2008 and now the revised section 143(1) refers to the processing of the return and does not use the word assessment at all. Thus it is quite clear that the processing of the return u/s 143(1) is not the assessment as envisaged in section 139(5) and therefore the plea of the assessee that its return is invalid and non-est and could not be the subject of a valid assessment order much less a valid appeal order is found to be without any basis and is accordingly rejected. The additional ground i.e. ground no. 5 is accordingly dismissed. Undisclosed receipts - AO was not able to find out any evidence whatsoever of the assessee indulging in any transactions over and above the transactions that had been declared by it in its return of income. AO has recorded that the assessee has neither shown these so called receipts in any of its bank accounts nor has it described the mode of receipts. The assessee has also not submitted any details that would enable the ld. AO to verify that it had actually indulged in construction of residential houses and supply of materials that resulted an excess turnover without any corresponding change in its return of income. It is true in the first instance the assessee did not point out the issue of its filing of a false return before the ld. AO but subsequently during remand proceedings it has furnished the details of the proceedings before the Vigilance authorities of NTPC Vindhyachal and Rihandnagar that prompted it to file its return in the manner that it has. Thus the assessee has effectively retracted upon the return that it has filed and in such circumstances it is for the ld. AO to prove that the retraction was unwarranted. This the ld. AO has not been able to prove. On the contrary the assessee has brought sufficient material on record in the form of inquiry letters and reports of the NTPC to demonstrate that the return that was filed by it may not represent its true state of affairs but was a return filed to meet certain qualification criteria in the NTPC tender. Now that the assessee has confessed before the ld. CIT(A)and before us that it had in fact filed a false return for this specific purpose it is our view that the ld. AO should consider the said report of the NTPC Vigilance authorities and the findings of the tender committee of the NTPC before proceeding to hold that the turnover reflected in the second balance-sheet that was filed before the income tax authorities along with the return dated 1.08.2015 represented the true receipts of the assessee or that the balance figure of Rs. 7, 08, 32, 552/- represented undisclosed income of the assessee. The ld. AO should also consider whether this enhanced turnover is in any way reflected in the hands of the assessee which would justify it being treated as the assessee s undisclosed income. Thus matter be restored to the file of the ld. AO for a fresh assessment after considering these aspects so that the true income of the assessee may be determined and the Department may take appropriate action for the determination of the true income of the assessee and consequent action if it finds that the assessee has acted in violation of section 277 of the Act. Appeal of the assessee is partly allowed the appeal of the Department is held to be allowed for statistical purposes.
1. ISSUES PRESENTED and CONSIDERED
The core legal questions considered in this appeal include: (a) Whether the revised return filed by the assessee after the processing of the original return under section 143(1) is a valid return under section 139(5) of the Income Tax Act, 1961, and if not, whether the assessment based on such revised return is void ab initio. (b) Whether the Assessing Officer (AO) was justified in treating the additional receipts of Rs. 7,08,31,552/- shown in the revised return as income from other sources due to lack of verifiable documentary evidence and non-reflection in Form 26AS and bank accounts. (c) Whether the Commissioner of Income Tax (Appeals) [CIT(A)] erred in accepting the assessee's statement that the receipts were from civil construction business activity without corroborative evidence and in estimating net profit at 8% on the entire turnover including the disputed amount. (d) Whether the turnover taken by the CIT(A) at Rs. 12,54,42,478/- was excessive compared to the original turnover of Rs. 5,46,10,926/- disclosed by the assessee. (e) Whether the net profit rate of 8% adopted by the CIT(A) was justified as against the disclosed net profit of 3.31% in the original return. (f) Whether the principles of natural justice and legal propriety were complied with in the assessment and appellate proceedings. 2. ISSUE-WISE DETAILED ANALYSIS (a) Validity of the Revised Return under Section 139(5) Legal Framework and Precedents: Section 139(5) permits filing of a revised return before the completion of assessment. The question arises whether the processing of the original return under section 143(1) constitutes completion of assessment, thereby barring filing of a revised return. The Tribunal relied on the judgment of the Hon'ble Calcutta High Court in Tata Metaliks vs. CIT, which held that intimation under section 143(1) is not an assessment within the meaning of section 139(5). It further relied on the Supreme Court judgment in CIT vs. Rajesh Jhaveri Stock Brokers, which clarified that processing under section 143(1) is a ministerial act and not an assessment. Court's Interpretation and Reasoning: The Tribunal held that since the original return was only processed under section 143(1) and no assessment was completed, the revised return filed thereafter was valid. It noted that section 143(1) was amended to refer to 'processing' and not 'assessment', supporting this interpretation. Conclusion: The Tribunal rejected the assessee's contention that the revised return was invalid and non-est, holding that the revised return was validly filed within the time permitted under section 139(5). (b) Treatment of Additional Receipts of Rs. 7,08,31,552/- Facts and AO's Findings: The AO observed that the additional receipts shown in the revised return were not reflected in Form 26AS or bank accounts, and no documentary evidence such as bills or PAN details were furnished. The AO doubted the genuineness of labour and material expenses claimed, noting forged registers and lack of vouchers. Consequently, the AO treated the amount as income from other sources and made additions. Assessee's Submission: The assessee admitted before the CIT(A) and the Tribunal that the inflated turnover was reflected in a revised balance-sheet submitted to NTPC to meet tender qualification criteria and to avoid forfeiture of earnest money deposit (EMD). It stated no actual work or receipts for the additional amount existed and that the revised return was filed only to match the tender documents on advice of its Chartered Accountant. Court's Reasoning: The Tribunal noted the assessee's confession that the revised return was filed to meet tender requirements and not reflective of actual receipts. It criticized the AO for disregarding the NTPC vigilance report indicating the assessee had submitted a fake balance-sheet. The Tribunal observed that the AO failed to consider this material and that the assessee had brought sufficient evidence to challenge the AO's adverse inference. Application of Law to Facts: The Tribunal held that the AO must consider the NTPC vigilance report and the tender committee's findings before concluding that the additional turnover represented true receipts or undisclosed income. It directed the AO to reassess the matter considering these aspects and the true state of affairs. Competing Arguments: The Department argued that the assessee failed to prove the receipts and thus the AO was justified in treating them as undisclosed income. The assessee contended the turnover was fictitious and filed only to avoid tender disqualification. Conclusion: The Tribunal found merit in the assessee's explanation and remanded the matter to the AO for fresh assessment after considering the NTPC reports and the genuineness of the receipts. (c) Acceptance of Receipts as Business Receipts and Profit Estimation at 8% AO's Approach: The AO rejected the books of accounts for the verifiable turnover of Rs. 5,46,10,926/- and estimated net profit at 8% on this amount. The AO did not accept the lower net profit rate declared by the assessee. CIT(A)'s Approach: The CIT(A) accepted the entire turnover shown in the revised return but allowed net profit at 8% on the entire turnover, including the disputed amount, thereby granting relief of Rs. 6,51,65,031/- to the assessee. Assessee's Submission: The assessee contended that the net profit rate was depressed due to competitive tendering and low contract execution rates, and thus the declared net profit was correct. Court's Observations: Since the matter was remanded for fresh assessment on the validity of turnover, the Tribunal held that the other grounds relating to net profit rate and turnover were to be reconsidered by the AO afresh. (d) Excessive Turnover Taken by CIT(A) The CIT(A) accepted the revised turnover of Rs. 12,54,42,478/- instead of the original turnover of Rs. 5,46,10,926/-. The assessee challenged this as excessive. The Tribunal, taking into account the admitted filing of a false balance-sheet and the tender committee's findings, held that the correctness of the turnover figure was disputed and required fresh examination by the AO in light of all relevant material, including the NTPC vigilance report. (e) Compliance with Principles of Natural Justice and Legal Propriety The assessee contended that the order was contrary to principles of natural justice. The Tribunal did not find any specific procedural irregularity but emphasized that the AO must consider all relevant material, including the NTPC vigilance report and the tender committee's findings, in the reassessment proceedings to ensure just determination of income. 3. SIGNIFICANT HOLDINGS "The order under section 143(1) is not considered to be an assessment, within the meaning of section 139(5), that would prevent an assessee from filing a revised return, after the return of income originally filed, being processed under section 143(1)." "The Tribunal held that the AO must consider the NTPC vigilance report and the tender committee's findings before concluding that the additional turnover represented true receipts or undisclosed income." "The Tribunal observed that the assessee had brought sufficient material on record in the form of inquiry letters and reports of the NTPC, to demonstrate that the return that was filed by it may not represent its true state of affairs, but was a return filed to meet certain qualification criteria in the NTPC tender." "The Tribunal directed the AO to reassess the matter considering these aspects, so that the true income of the assessee may be determined and the Department may take appropriate action for the determination of the true income of the assessee and consequent action if it finds that the assessee has acted in violation of section 277 of the Act." Final determinations: (i) The additional ground challenging the validity of the revised return was dismissed; the revised return was held valid. (ii) The matter was remanded to the AO for fresh assessment considering the NTPC vigilance report and tender committee findings regarding the genuineness of the turnover and receipts. (iii) Other grounds, including the quantum of turnover and net profit rate, were allowed for statistical purposes pending fresh assessment. (iv) Both the assessee's and Department's appeals were allowed for statistical purposes in view of the remand.
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