TMI Blog2017 (12) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... artner, it cannot be said that the same position continues, or its accounts are subject to audit under law for the current year. That is, there is nothing on record to exhibit that the assessee is a working partner or not so, i.e., one way or the other, except the averment per Gd. 5.3 supra. Rather, the contrary claims by the assessee, stating the due date filing of return as 31.08.2012 (in the computation of income for the year), while at the same time preferring a revised return, i.e., u/s. 139(5), as well as contending per the grounds of appeal to be a working partner, so that the due date is 30.09.2012, makes his claim untenable, i.e., in the absence of any material establishing same. Our order stating the assessee’s legal claim as to the invalidity of his second ‘return’ as being inadmissible in view of indeterminate facts, being in fact subject to contrary claims and, in any case, answerable only against the assessee in view of its avowed stand in the assessment (filing a revised return, which can only be u/s. 139(5)) and appellate proceedings (per Gd.5.3 supra). The Revenue cannot treat the assessee’s first return as a valid return u/s. 139(1), so that it could be revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment u/s. 143(3) in its respect could be made. The ld. CIT(A), admitting the additional grounds challenging the validity of the assessment, inas- much as the same raised a legal issue requiring (apparently) no investigation of facts, however, held in the negative. The assessee is a partner in a partnership firm M/s. Venkatam Construction Engineers (VCE); the fact of his being a partner being also mentioned in the return filed originally. The return in case of a partner of a partnership firm, whose accounts are to be audited, the due date of filing of return u/s. 139(1) is that of the firm itself, i.e., 30th September of the following year, or 30.09.2012 for A.Y 2012-13. Even the return for A.Y 2011- 12 was filed by the assessee on 29.09.2011 only. The original return filed on 29.09.2012 was thus a valid return u/s. 139(1), and not a return u/s. 139(4) (refer para 4 of the impugned order). He, then, proceeded to decide the assessee s appeal on the merits of the additions made (vide paras 4.1 4.2 of the order). The assessee s claim being denied thus, he is in second appeal, raising the following grounds: 1. The order of the learned CIT (A) is erroneous in law and agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties, and perused the material on record. Section 139(4) of the Act allows a person who has not furnished a return within the time allowed u/s. 139(1), or within the time allowed vide notice u/s. 142(1), to furnish a return for any previous year within one year from the end of the relevant assessment year or before the completion of assessment, whichever is earlier. Sec. 139(5) provides for any person, who having furnished a return u/s. 139(1) or in response to notice u/s. 142(1), to furnish a revised return within one year of the relevant assessment year or completion of assessment, whichever is earlier, in case he discovers any omission or misstatement in the return filed earlier. The Hon'ble Apex Court in Kumar Jagdish Chandra Sinha v. CIT [1996] 220 ITR 67 (SC), also relied upon by the assessee before the ld. CIT(A), has held that a belated return u/s. 139(4) cannot be revised u/s. 139(5). This in fact is also the clear mandate of the relevant provision (s. 139(5)). Clearly therefore, in the event of the assessee s first return (filed on 29.09.2012) being not a return u/s. 139(1), but a return u/s. 139(4), the same could not be revised and, accordingly, the return filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A for the delay in the filing of return per assessment u/s. 143(3). However, the same is without any basis. As aforesaid, there is no mention of the assessee s status as a working partner in the partnership firm, VCE, or of its accounts being audited, in the assessment order u/s. 143(3), so that the same is only with reference to the due date mentioned by the assessee per his return of income (copy on record), i.e., 31/8/2012. However, as aforesaid, any conflict with regard to the due date u/s. 139(1) for the relevant year would only operate to oust the assessee s legal case, raised in the appellate proceedings for the first time in-as-much as the same would require determination of facts relevant for adjudicating the same in the first place. There is, as afore-noted, no reference to the assessee being a working partner at any stage, i.e., prior to or de hors the assessee raising the said legal plea, which, as it turns out, is a material fact. This also explains the assessee s grounds before us. The assessee s Gd. 3 before us raises a question of fact, which is a material fact for deciding the legal issue raised per Gd.4. Under the circumstances, therefore, the legal issue raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts required to determine the issue arising. Where the relevant facts are not on record, or the material or record points otherwise, or are to be brought on record, the claim cannot be admitted. At this stage, we may also clarify another aspect of the matter. It may be argued that the partnership deed of VCE shall bear out whether the assessee is or is not a working partner in the said firm for the relevant year. True, but the instrument of partnership shall be a part of the assessment record of the said firm and not of its partners. Further, even if, for the sake of argument, the assessment record or return for the earlier year indicates the assessee to be not a working partner, it cannot be said that the same position continues, or its accounts are subject to audit under law for the current year. That is, there is nothing on record to exhibit that the assessee is a working partner or not so, i.e., one way or the other, except the averment per Gd. 5.3 supra. Rather, the contrary claims by the assessee, stating the due date filing of return as 31.08.2012 (in the computation of income for the year), while at the same time preferring a revised return, i.e., u/s. 139(5), as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is well-settled, and toward which reference be made, inter alia , to the decisions in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) and Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688 (SC), reference to which stands made, reproducing therefrom, in Abhinitha Foundation Pvt. Ltd. (supra) (at pgs 258-259), clarifying that where the relevant material was available on record, the legal question could be answered by the appellate forum itself or through a remand to the AO (para 18/pg. 264 of the Reports). There is no reference to the assessee s status as a working partner in a firm whose accounts are subject to audit under law, in the assessment order, or any material on record exhibiting so, so as to be regarded as an admitted fact, with in fact the assessee himself making contrary claims in its respect per his grounds of appeal (Gd. 5.3) and additional grounds of appeal (Addl. Gd.1) before the first appellate authority, before whom, the legal issue, requiring as a pre-requisite undisputed facts, was raised for the first time. The assessee could have, observing r. 46A, placed before the ld. CIT(A) material in support of his Gd. 5.3, i.e., as to he bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the parties may take of their rights in the matter (refer: CIT v. C. Parakh Co. (India) Ltd . [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC)). Further still, r. 11 27 of the Appellate Tribunal Rules are not exhaustive of the powers of the Tribunal ( Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 (SC)). In fact, continuing further, even if the said ground/s are taken as admitted, i.e., for the sake of argument, the same is to be answered on the basis of admitted facts, i.e., the assessee filing the revised return and contesting the late filing of the first return (by one month) on the factual basis that he is a working partner in VCE, whose accounts are subject to audit u/s. 44AB. That is, answered against the assessee, in-as-much as the first return becomes a return filed within the due date prescribed u/s. 139(1). This is in the absence of any material on record to rebut the assessee s claims , and which, where so, would require being confronted to the assessee. The contrary claims qua the relevant facts by the assessee makes the admission of his legal issue untenable. In our clear view, therefore, the assessee s legal ground, rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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