TMI Blog2013 (4) TMI 604X X X X Extracts X X X X X X X X Extracts X X X X ..... vs Shelly Products [2003 (5) TMI 4], it is obvious that any mistake or inadvertence or on account of ignorance any income which is exempt from payment of tax or is not an income within the contemplation of law it may be brought to the notice of the assessing authority, which, if satisfied, may grant him relief or refund the taxes paid in excess, if any. Therefore, if any income which is otherwise not taxable is included in the return of income, it can be brought to the notice of the assessing authority in the course of assessment proceedings. Thus, the claim made by the taxpayer with regard to the assessability of the capital gain on sale of land needs to be examined by the A.O. even though such a claim was not made in the original return and the revised return was invalid. - ITA No. 247/Coch/2012 - - - Dated:- 12-4-2013 - Shri N. R. S. Ganesan JM And Shri B. R. Baskaran AM,JJ. For the Appellant : Shri TM Sreedharan, Sr counsel For the Respondent : Smt. S Vijayaprabha ORDER Per N. R. S. Ganesan (JM). This appeal of the taxpayer is directed against the order of the Administrative Commissioner passed u/s 263 of the Income-tax Act for the assessment year 2009-10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2(1). The taxpayer belatedly filed the return of income on 17-12-2010. Therefore, the return filed on 17-10-2010 is not a return filed either u/s 139(1) or u/s 142(1) of the Act. Referring to section 139(5) of the Act, the ld.DR submitted that if any person having furnished a return of income either u/s 139(1) or in pursuance of a notice issued u/s 142(1), discovers any omission or wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment whichever is earlier. In this case, admittedly, the taxpayer has not filed any return of income either u/s 139(1) or within the time limit prescribed u/s 142(1) of the Act. Therefore, the provisions of section 139(5) may not be applicable to the taxpayer. Hence, the revised return filed by the taxpayer on 20-12-2010 is invalid, therefore, it cannot be acted upon. 5. The ld.DR further submitted that admittedly, the taxpayer offered the capital gain for taxation in the original return. Therefore, the assessing officer is not justified in not bringing the capital gain for taxation. Hence, the Administrative Commissioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the land sold by the taxpayer is appurtenant to the engineering college which was sold by Carmel Education Trust to Believers Church of India. It is also necessary to examine whether the land was sold as part of the agreement between Carmel Education Trust and Believers Church of India. Since these facts were not examined by the assessing officer, this Tribunal of the considered opinion that there is an error in the order of the assessing officer which is prejudicial to the interest of the revenue. In other words, failure on the part of the assessing officer to conduct a proper enquiry and without application of mind with regard to the land sold by the taxpayer is an error as found by the Apex Court in Malabar Industrial Co Ltd vs CIT (2000) 243 ITR 83 (SC). Moreover, the assessing officer is bound to record reason in the assessment order why he finds the claim of the taxpayer as genuine as found by the Apex Court in Toyoto Motor Corporation (2008) 306 ITR 52 (SC). In view of the above, the judgment of the Apex Court in Max India Ltd (supra) may not be of any assistance to the taxpayer. 8. The next question arises for consideration is whether the revised return filed by the ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment of the Apex Court in Shelly Products (supra), it is obvious that any mistake or inadvertence or on account of ignorance any income which is exempt from payment of tax or is not an income within the contemplation of law it may be brought to the notice of the assessing authority, which, if satisfied, may grant him relief or refund the taxes paid in excess, if any. Therefore, if any income which is otherwise not taxable is included in the return of income, it can be brought to the notice of the assessing authority in the course of assessment proceedings. 11. The next question arises for consideration is whether such a mistake or inadvertence or ignorance needs to be brought to the notice of the assessing officer by way of revised return in view of the judgment of the Apex Court in the case of Goetze India Ltd (supra). 12. We have carefully gone through the judgment of the Apex Court in the case of Goetze India Ltd (supra). No doubt, the Apex Court confirmed the order of the Tribunal holding that the amendment in the return of income cannot be made without any revised return. However, the Apex Court after referring to their own judgment in the case of National Thermal Power C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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