TMI Blog2015 (8) TMI 984X X X X Extracts X X X X X X X X Extracts X X X X ..... d accounts and the variation that has occurred in the loss in the return originally filed by it on 30.11.2004. It was on that reasoning that the Tribunal has directed the Assessing Officer to reconsider the matter. Although it is true that by the time audited accounts and the revised return was submitted, the time limit provided in Section 139(5) of the Income Tax Act had expired that, in our view, did not stand in the way of the assessee in taking advantage of the principle laid down by the Apex Court in its judgment in Shelly Products (2003 (5) TMI 4 - SUPREME Court ). It is true that the learned Senior Counsel for the Revenue contended that the law declared by the Supreme Court is understood in the light of the provisions of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome Tax Act, the Assessing Officer completed the assessment ignoring the revised return. The appeal before the Commissioner (Appeals) was rejected. In the further appeal filed, by the impugned order, the Tribunal set aside the orders passed by the lower authorities and directed re-examination of the matter by the Assessing Officer. This order is challenged by the Revenue in this appeal and the questions of law framed are the following: 1. Whether, on the facts and in the circumstances of the case and also, on an interpretation of Section 139(5) of the Income Tax Act, 1961 the Tribunal is right in law- i) In holding the 'revised return' of income filed by the assessee beyond the time limit prescribed under section 139(5) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al shows that the Tribunal has followed the Apex Court judgment in Commissioner of Income Tax v. Shelly Products and Another [2003 (261) ITR 367] where the Supreme Court has held thus: We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the assessee in a more disadvantageous position than in what he would have been if a fresh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of the basis of the return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these principles, the Tribunal held that it is open to an assessee to point out mistakes committed by it in the return filed and that the authorities under the Income Tax Act are bound to assess the income and loss of the assessee in terms of the provisions of the Act. Accordingly, the Tribunal concluded that it was open to the assessee to bring to the notice of the authorities the finalised accounts and the variation that has occurred in the loss in the return originally filed by it on 30.11.2004. It was on that reasoning that the Tribunal has directed the Assessing Officer to reconsider the matter. 6. Although it is true that by the time audited accounts and the revised return was submitted, the time limit provided in Section 139(5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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