TMI Blog2011 (12) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... change over from mercantile system to cash system is not permissible by filing a revised return much less a revised statement of income. Whether National Housing Bank Act,1987 overrides the Income Tax Act, 1961 – Held that:- There is no such provision in the National Housing Bank Act that it will override the Income Tax Act. Whether any sequence prescribed for issuance of notice u/s 142(1) and 143(2) – Held that:- The purpose of service of notices issued u/s 142(1) and 143(2) is different. There is no sequence prescribed as to in what manner two notices are to be issued. Therefore, there is nothing to say that the notice u/s 142(1) should precede notice u/s 143(2) so far as production of documents/accounts is concerned. Maintainability of appeal before CIT (Appeals) when petition of assessee u/s 264 is rejected – Held that:- Once the revisionary power vested with the Commissioner u/s 264 is invoked and the Commissioner passes the order by exercising his jurisdiction under that section, the order of assessment merges with the order of revision. The order passed by the Commissioner u/s 264 is also not an appealable order u/s 246/246A. Writ petition filed for refund - Held that:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner carries on the business of a non-banking financial institution. To carry on its business, the petitioner borrows and lends money under various schemes, either on its own approval or concurrence from the Government. The petitioner maintains details of account for the purpose of Income Tax. It commenced its business during the year 1994-95 and follows mercantile system of accounting to recognize income and expenses to compute its total income. It had got its account audited for the financial year ending on 31st March, 1995 and up to 31st March, 2006 and returns of income were filed with the Income Tax Department for those periods. Difficulty of the petitioner arose when the statutory auditors were not appointed in time and its own appointed auditor delayed in completing its audit. 4. The petitioner submitted its return for the assessment year 2006-07 on 30.11.2006 within the due time wherein it disclosed its total loss at Rs.1,94,48,311/-. The Assessing Officer issued notice (Annexure-3A) to the petitioner on 10.10.2007 under Section 143(2) of the Income Tax Act (for short, "I.T. Act") requiring the petitioner to attend his office on 09.01.2008 either in person or by a represen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner of Income Tax no appeal before him can lie against the order passed by the learned CIT. Hence, the present writ petition. 6. Mr. B.K. Mahanti, learned Senior Advocate appearing on behalf of the petitioner submitted that learned Assessing Officer has committed an error by not considering the revised statement of income filed before him on 08.12.2001 while passing the order of assessment. At the time of filing the return, the statutory audit was not completed. Returns were filed on the basis of the provisional accounts and interest on Non-Performing Asset (for short, 'NPA') account was wrongly recognized in contravention with the provisions of National Housing Bank (for short, 'NHB) guidelines and the petitioner-assessee has also claimed expenses in contravention of Section 43D of the I.T. Act. On the basis of petition dated 08.12.2001, though the petitioner explained before the learned Assessing Officer that the National Housing Bank Act (for short, 'NHB Act') has overriding effect over the Income Tax Act and on a reworking of the figure the loss shown would go up to Rs.43,63,93,492/-. the learned Assessing Officer has not considered the same. Both the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court in the case of Goetze (India) Ltd. v. Commissioner of Income Tax, [2006] 284 ITR 323 (SC), it is submitted that the Assessing Officer has no power to entertain a fresh claim made by the Assessee after filing of the original return other than by filing of a revised return. Supporting the order of the Commissioner of Income Tax (Appeals), Mr. Mohapatra submitted that the petitioner having invoked the provision of Section 264 of the IT Act, thereafter he has no right to approach the Commissioner of Income Tax (Appeals) invoking its appellate jurisdiction. Referring to Section 264(4) of the I.T. Act, he further submitted that the statute in this regard is amply clear and therefore, the Commissioner of Income Tax (Appeals) is justified to hold that the appeal filed by the petitioner before him is not maintainable. Concluding his argument, Mr.Mohapatra prayed for dismissal of the writ petition. 9. On the rival contentions of the parties, the following questions fall for consideration by this Court:- (i) Whether an assessee can revise his return of income by way of filing a revised statement of income after filing original return other than by way of filing revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) dated 03.10.2008 was also issued to the petitioner to produce the documents/accounts. Assessment was completed under Section 143(3) on the basis of the original return on 23.12.2008. The petitioner filed a revised return by registered post on 07.01.2011. 12. It is quite possible and natural that in submitting a return, some bona fide omission or wrong statement may have occurred. In order to obviate this possibility the legislature has made provisions in section 139(5) enabling an assessee to furnish a revised return. Thus, the assessee has a right to file revised return if he discovers any omission or any wrong statement in the originally filed return. Such a revised return can be furnished at any time before expiry of one year from the end of the relevant assessment year or the completion of the assessment, whichever is earlier. Thus, the statute provides safeguard to an assessee in case he discovers any omission or wrong statement in his original return to file a revised return. The further requirement is that this omission or wrong statement in the original return must be due to a bona fide inadvertence or mistake on the part of the assessee. 13. There is a distinction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (See Taylor v. Taylor, [1876] 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma; and Indian Bank's Association v. Devkala Consultancy Service, AIR 2004 SC 2615). 18. Therefore, we are of the view that the learned Assessing Officer is fully justified in completing the assessment under Section 143(3) of the I.T. Act on the basis of the original return filed under Section 139(1) without taking into consideration the revised statement filed on 08.12.2008 in absence of the revised return as contemplated under Section 139(5) of the I.T. Act and the CIT is also justified in confirming the view of the learned Assessing Officer. 19. Question No.(iv) is as to whether the National Housing Bank Act, 1987 overrides the Income Tax Act, 1961? Though both the Acts are Central Act they are occupying different fields. The purpose of enacting both the Acts are different. Income Tax Act has been enacted to levy tax on income which is covered under Entry No.82 of List-I-Union List of Seventh Schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecifying particulars of such claim of loss, exemption, deduction, allowance or relief and required him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003, (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not under-stated the income or has not computed excessive loss or has not under-paid the tax in any manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produced there, any evidence on which the assessee may rely in support of the return: Provided that no notice under [clause (ii)] shall be served on the assessee after the expiry of twelve months from the end of the month in which the return is furnished." 23. Thus, notice issued under Section 143(2) is issued requiring the assessee to produce his accounts, evidence, and particulars on which the Assessee may rely in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail remedy by way of appeal. Thus, remedy available under section 264 of the I.T. Act is an alternative remedy and not an additional remedy and the assessee is not permitted to pursue both the remedies either simultaneously or one after another. In the instant case, it is only after rejection of the petition under Section 264 by the Commissioner of Income Tax, the assessee has filed appeal, which right as stated above, by approaching the Commissioner under Section 264, the petitioner has lost. Apart from the above, once the revisional power vested with the Commissioner under Section 264 of the I.T. Act is invoked and the Commissioner passes the order by exercising his jurisdiction under that section, the order of assessment merges with the order of revision. The order passed by the Commissioner under Section 264 is also not an appealable order under Section 246/246A of the I.T. Act. 28. In view of the above, the Commissioner of Income Tax (Appeals) is justified in not entertaining the appeal filed by the petitioner before him on the ground that the same is not maintainable. 29. Question No.(vii) is as to whether any refund can be granted by exercising power under Article 226 an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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