TMI Blog2002 (9) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by it originally on 30th Nov., 1996. In the case of Tiwari Kanhaiyalal vs. CIT (1985) 47 CTR (Raj) 187 : (1985) 154 ITR 109 (Raj), it was held that it is a settled procedure that the assessee may simply file a letter relying upon the return filed earlier. The AO did not rightly object to this. 4. A survey was conducted under s. 133A on 3rd 4th Oct., 1996 relating to asst. yr. 1997-98. It appeared that on the basis of survey, action under s. 147 had been initiated. 5. The learned authorised representative submitted that the assessee should have filed the return of income in response to a notice under s. 148 on or before 22nd April, 1999. However, the same was filed long thereafter on 20th April, 2000. Thus, the return so filed was out of permissible time-limit and hence was an invalid/non est return. The AO had framed the assessment on the basis of return filed on 20th April, 2000. It was submitted by the learned authorised representative that where any assessment is based on an invalid return non est return, the resultant assessment will also be bad in law and void ab initio. For this proposition, he relied upon the following case laws: 1. Maya Dabi Bansal vs. CIT (19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-s. (5) of s. 139 in a case where the return is filed under s. 139(4). Once this is so the revised return filed by the assessee for both the said assessment years were invalid in law and could not have been treated and acted upon as revised returns contemplated by sub-s. (5) of s. 139. Consequently s. 153(c) was not attracted. The facts of this case are also different from the facts of the case before us. In the case before as originally the return was filed on 30th Nov., 1996. After survey under s. 133A on 3rd 4th Oct., 1996, notice under s. 148 was issued in response to which the return was to be filed on or before 22nd April, 1999 whereas the same was filed on 20th April, 2000, by writing a letter and by relying on the return already filed. 12. We agree with the view of the learned authorised representative that the return filed in response to notice issued under s. 148 was non est return. However, it is evident from the facts of the case that the appellant had not complied with the statutory notice issued under s. 148 of the Act for filing a return under s. 148 within statutory time-limit i.e., on or before 22nd April, 1999. Under s. 148(1), the assessee was required to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secondly it was contended that another aspect of the matter is that simply to make a serious lapse good on the part of the Revenue not to have issued a notice under s. 143(2) within the statutory limitation cannot at all be a ground to take an action under s. 147 inasmuch as (i) this will extend the time-limit otherwise expired which is not permissible by law and shall render the limitation provision nugatory, (ii) that this will confer power upon the AO which he otherwise did not deserve strictly legally speaking; and (iii) that action under s. 147 not being a matter of routine will become a routine. 15. The learned Departmental Representative relied upon the order of the AO. 16. We have considered the rival submissions. We find that the AO had initiated proceedings under s. 147 on the basis of fresh/new facts and material which came into his possession after the survey conducted under s. 133A on 3rd 4th Oct., 1996. During the course of survey the appellant had surrendered Rs. 1,00,000 on account of gifts received by the wives of the partners. Therefore, we hold that there is no change of opinion in this case and the AO had correctly issued notice under s. 148 on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... htwise depending upon the technical convenience and the prevailing trade practice. Even item had approximately 50 different qualify/variety sizewise, qualitywise, gradewise etc. In such a situation one can imagine, as to how day-to-day quantitative details could have been maintained. We also find from the order of the AO that he had specifically pointed out that the assessee had not maintained day-to-day stock register and no quantitative details of goods purchased and sold and also of the closing stock had been maintained by the appellant. Therefore, we hold that the provisions of s. 145 are applicable. This contention of the assessee fails. 22. Secondly, the learned authorised representative contended that the estimate of gross profit rate was not as per facts of the case. While applying the gross profit rate of 2.30 per cent the lower authorities totally ignored the submissions made before them and the reasons contributing to the slight fall in the gross profits rate. The learned authorised representative made the following submissions: (i) There was an increase in the turnover inasmuch as this year the assessee declared the sale of 13.57 crore as against 7.14 crores in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest on such credits. 28. The contention of the learned authorised representative is that no adequate opportunities were allowed by the AO inasmuch as notice under s. 143(2) calling for certain information about gift was issued on 16th Nov., 2000, received by the assessee on 20th Nov., 2000 i.e., just 1-1/2 months before the completion of assessment which was completed on 29th Dec., 2000. Thus, there was not adequate time/opportunity for the assessee to prove the genuineness of the transaction by any standard specially in the circumstances where (i) the donor was a NRI, living abroad, (ii) specific requests were made by the assessee on various dates, however, the AO has granted very short adjournments, which can be seen at pp. 4 5 of the assessment order, (iii) the case was not time-barring, therefore, the AO could very well have granted the opportunity on specific request of the assessee; and (iv) there was strike of the P T Department, which was also informed to the AO. 29. The learned authorised representative further explained that the alleged gifts were received by the partners of the firm through bank drafts dt. 4th Oct., 1995, in the case of Smt. Kusum Pokharna, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in vs. Asstt. CIT (1999) 63 TTJ (Del) 236. 34. He further contended that the sole statement by the assessee cannot be a foundation of assessment. This is a case of partnership and the alleged consent statement was given without the consent of the other partners. The AO got the signature of other lady partner. However, there was no mention that their signatures are in token of their acceptance/consent to the surrender. At the best they signed only as a witness of what Shri Anil Pokharna stated before the AO and not more than that. The statement of one partner cannot be made binding upon the entire partnership firm. Such statements are liable to be ignored. He referred to the case of Ashok Kumar Soni vs. Dy. CIT (2001) 72 TTJ (Jd) 323. 35. It was also contended that by now it is settled that a statement made out of ambiguity, under duress and pressure or which is against the facts available on record can be retracted later on at any point of time and the confessional statement given earlier cannot work as an estoppel against the assessee and after retraction it carries no value. He relied on 22 Tax World 209, 22 Tax World 245 and 22 Tax World 573, G. Kanagraj vs. Dy. CIT (2001) 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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