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TMI Blog2017 (4) TMI 253X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) has failed to appreciate the fact that once the revised return of income filed by assessee - appellant was rejected than the assessment so framed under section 143(3) of the Act could not have been so framed, as no noticed under section 143(2) was issued within the prescribed period of limitation i.e. six months from the end of the assessment year in which original return of income was filed and thus, the assessment so framed is without jurisdiction and should be quashed as such. 3. That thelearned Commissioner of Income Tax (Appeals) has ignored the basic fact that the assessee - appellant was carrying on the business of transportation and income declared in its revised return was at presumptive rates of tax as specified under section 44AE of the Act, which claim of the assessee - appellant had been arbitrarily rejected without understanding the legal mandate of the provisions of section 44AE of the Act and as such, the additions so made by learned AO and so sustained by learned CIT (A) should be deleted. 4. That the learned Commissioner of Income Tax (Appeals) has further grossly erred in relying on the judgments totally inapplicable to the facts of the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified in not accepting the income declared therein, following the presumptive scheme for computing income from plying of goods carriages as laid down in section 44AE(2) of the Act. Alternatively, it was also argued that notice under section 143(2) of the Act has been issued within the limitation available with reference to the revised return of income and if same is not accepted than the notice issued under section 143(2) of the Act is barred by the limitation and no assessment could have been framed with reference to the original return of income. The learner counsel referred to the provisions of section 44AE of the Act, in existence during relevant period and submitted that in terms of the clause(ii) of section 44AE(2) of the Act, the assessee was required to declare profit equal to Rs. 3,500/- per month per goods carriage owned by the assessee or an amount higher than aforesaid amount as declared by him in his return of income, and accordingly, the assessee chosen the profit at the rate of Rs. 3500 per month per goods carriage and same was declared in the revised return of income. The Ld. counsel submitted that the assessee discovered error in the original return of income filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one year from the end of the assessment year was expiring on 31/03/2012 and therefore the revised return filed with assessee on 28/09/2011 was well within the limitation period. This revised return was not held to be a defective return in terms of the section 139(9) of the Act. The Tribunal in the case of R. Kasi Visvanathan & Bros. Versus assistant Commissioner of income tax (2014) 42 taxmann.com 176 (Cochin-Trib) held that where assessee filed a revised return in accordance with the provisions of section 139(5), the revenue authorities were not justified in rejecting said return without following procedure prescribed under section 139(9) by merely taking a view that the revised return was an afterthought and it was filed only to reduce assesses tax liability. 6. Further, the notice under section 143(2) of the Act has been issued on 01/08/2012 and duly served upon the assessee. As per the provisions of the Act, notice under section 143(2) was required to be served within a period of six months from the end of the financial year in which return is furnished. Thus, according to the provisions of section 143 , notice in the case of the assessee could have been served till 30/09/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous year or, as the case may be, an amount higher than the aforesaid amount as declared by him in his return of income; (ii) other than a heavy goods vehicle, shall be an amount equal to three thousand one hundred rupees for every month or part of a month during which the goods carriage is' owned by the assessee in the previous year or, as the case may be, an amount higher than the aforesaid amount as declared by him in his return of income." The amended provisions came into effect from 01.04.2011 and are as under: "(2) For the purpose of sub-section (1), the profits and gains from each goods carriage: (i) being a heavy goods vehicle, shall be an amount equal to five thousand rupees for every month or part of a month during which the heavy goods vehicle is owned by the assessee in the previous year or an amount claimed to have been actually earned from such vehicle, whichever is higher ; (ii) other than a heavy goods vehicle, shall be an amount equal to four thousand five hundred rupees for every month or part of a month during which the goods carriage is owned by the assessee in the previous year or an amount claimed to have been actually earned from such vehicle, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be assessed in the case of the assessee. 12. In our view, the contention of the Revenue is not correct as during the relevant period, the assessee was having option of choosing a prescribed fixed sum towards profit from plying of goods carriages for declaration or higher amount declared in the return of income. The assessee has chosen the option of a prescribed fixed sum per month in the revised return of income, which has already been held by us as a valid return. The provision of assessing higher income out of two options has been made effective only from assessment year 2011-12 and not for the year under consideration. 13. Before us, the Ld. counsel relied on the decision of the Tribunal, Ahmedabad bench in the case of a Kesharbhai Ghamarbhai Choudhary Vs. ITO in ITA No. 1402/Ahd/2009. In said case, the AO did not accept the revised return on the ground that original return was not within the time. In the revised return the assessee claimed income on estimate basis as per section 44AE of the Act. The Tribunal directed the Assessing Officer to determine the income of the assessee as per section 44AE of the Act. 14. In view of above discussion, in our opinion, the Ld. CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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