TMI Blog2017 (12) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... y to blow hot and cold. If the tribunal decision would not have been in his favour, the assessee could not have contended that this is nonest. Even if the department would have denied that this is nonest, he would have contested the matter. Revised return was not permissible and revised return of revised return is not thought of by the legislature. Thus, u/s 139(5) once return is filed after the period of limitation which is prescribed under the Act, the position of the assessee is very clear that he cannot do it. It is only for the department to take the call whether to accept or not. On the point of Sec.80A (5), in our considered opinion the return which is claimed under consideration not of return which he has filed. In that view of the matter, the contention of Mr. Pathak that the revised return alongwith the earlier return ought to have been considered, in our considered opinion, the return which is referred in 80A(5) is to be considered which is filed for the relevant year under consideration of the AO and not of the return which he stated and he cannot claim any benefit of the same. - Decided in favour of the department and against the assessee. - D.B. Income Tax Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal and pending the appeal he has filed a revised return Annexure-C on 7.5.2008 and has withdrawn his claim u/s 10BA Annexure-1 to avoid any penalty proceedings. 4.2 However, to his fortune, the tribunal held in his favour vide judgment and order dt. 21.8.2009 Annexure-7 and immediately he has withdrawn his revised return which was filed on 7.5.2008. 5. He has emphasized the following claim made by the assessee in his letter dated 7.9.2009:- 6. Therefore in view of the decision of Hon'ble ITAT, I hereby request to your good self to please consider my claim of deduction u/s 10BA as made by me in my original return filed on 31.10.2007 for which necessary documents are already on record. Again copies of all necessary documents are enclosed hereby for your reference. 7. It may be pointed out that it is a settled law that there can be no estoppels against law. If a claim is legitimately allowable to me the same has to be allowed even if I make such a claim in assessment proceeding. In present case I have originally made the claim but for the reasons stated above I withdrew the said claim but now in view of the ITAT decision I be allowed the claim of deduction u/s 10BA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account also the claim of the appellant can not be allowed. The action of the AO is therefore upheld. First ground of appeal is decided against the appellant. 5.3 He further contended that the tribunal while considering the case observed as under:- 2.7 During the course of proceedings, the ld.AR was informed that one of us (Accountant Member) was a party to the order of Bangalore Bench in the case of ACIT vs JSW Steels Ltd., 4 ITR (Trib) 202 in which it was held that depreciation cannot be allowed by adverting to particulars furnished in the original return when revised return has been filed.The ld.AR relied on the decision of Honb'le Apex Court in the of Bajaj Tempo Ltd. 196 ITR 188 in which it has been held that a provision granting incentive should be construed liberally. Reliance has been placed on the decision of Hon'ble Allahabad High Court in the case of CIT vs Andhra Cotton Mills Ltd., 219 ITR 404 in which it is held that revised return cannot be filed for withdrawing claim in original return correctly made. The Hon'ble Calcutta High Court held that revised return cannot wash away original return. 2.8 We have heard both the parties. It is useful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purposes of assessment is thus the return which is ultimately filed by an assessee on the basis of which he wants his income to be assessed... But when an assessment has to be made the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return.... Once a revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of assessment. 5.4 Counsel for the appellant Mr. Pathak has relied upon the following decisions:- In Golden Insulation Engg. Ltd. vs. Commissioner of Income Tax (DEL HC) (2008) 305 ITR 427 it has been held as under:- 10. A bare reading of the aforesaid Section makes it clear that the assessed may file a revised return if it discovers any omission or any wrong statement therein. Insofar as the present case is concerned, there is no omission or wrong statement which required the assessed to file a revised return. The reason for filing the revised return was only that the company had passed a resolution to change its me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 81(1) was to encourage and promote the growth of cooperative societies and consequently a liberal construction must be given to the operation of that provision. And since ginning and pressing was incidental or ancillary to the activities mentioned in Section 81(1) the assessee was entitled to exemption and the proviso did not stand in way. In Commissioner of Income Tax, Amritsar v. Strawboard Manufacturing Company Ltd., MANU/SC/0119/1989 : [1989]177ITR431(SC) was held that the law providing for concession for tax purposes to encourage industrial activity should be liberally construed. The question before the Court was whether Straw Board could be said to fall within the expression paper and pulp mentioned in the Schedule relevant to the respective assessment yeaRs. The Court held that since word paper and pulp was mentioned in the Schedule the intention was to refer to the paper and pulp industry and since Straw Board Industry could be described as forming part of the paper and pulp industry it was entitled to benefit. In Commissioner of Income Tax vs. Chitranjali (1986) 159 ITR 801, Calcutta High Court held as under:- 6. In the instant case, the assessment has been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led before him. In Commissioner of Income Tax vs. Andhra Cotton Mills Ltd. (1996) 219 ITR 404 Andhra Pradesh High Court held as under:- 3. According to learned counsel for the Revenue, even the statutory provisions relating to assessment require that the particulars of depreciation had to be given and the deduction of depreciation allowance was necessary in making the assessment. We have gone through the decision cited by learned counsel for the Revenue and also the provisions of the IT Act. We find that under s. 139(5), a revised return could be filed if there is an omission or a wrong statement. No doubt, in the case of a company under the Companies Act, Sch. VI, Part II, the P L account need not contain a provision for depreciation. But that fact has to be mentioned. In the present case, the assessee had prepared a P L account providing for depreciation and, therefore, did not opt for at the option in the normal course of its business. In the original return, the P L account containing the provision for depreciation has been filed. In the circumstances, it cannot be said that there was any wrong statement in the original return which could enable the assessee to file a rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dutt (2009) 319 ITR 331, Karnataka High Court held as under:- 9. The following questions of law was proposed by the State for consideration: (1) Whether the Tribunal had jurisdiction to entertain the cross-objections filed by the assessee to the appeal filed by the Revenue when the Revenue's appeal had been dismissed by upholding the order of remand passed by the Appellate Commissioner resulting in the entire assessment order being set aside for consideration afresh ? (2) Whether the Tribunal was correct in proceeding to examine the merits of the assessment proceedings as to whether the income should be assessed in the hands of the assessee or not when the assessment order itself had been set aside and the entire matter was before the Assessing Officer for consideration afresh as the particulars available when passing the original assessments were not sufficient ? (3) Whether the Tribunal was correct in proceeding to entertain the crossobjections and permitting the assessee in the said proceedings for the first time to withdraw his earlier admission and concession that the income declared by him did not belong to him but to certain other entities without basing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B State.... any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income Tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year. In Commissioner of Income Tax vs. Lucknow Public Educational Society (2009) 318 ITR 223, Allahabad High Court held as under:- 10. In the facts and circumstances of the case, we are of the view that the Assessing Officer has treated the Revised Return as non est wrongly for the reason that the Assessing Officer himself has passed the order under Section 143(3) on the basis of the Original Return where the assessee was legally entitled for the exemption under Section 11, if not under Section 10(23C). The department should not take advantage of the ignorance of the assessee as per the CBDT Circular No. 14 (XL-35)/1955, dated 11-4- 1955, quoted in Parekh Bros. v. CIT MANU/KE/0059/1983 : [1984] 150 ITR 105 : [1983] 15 Taxman 539 (Ker.). Hence, it was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned Sec.80IB, in our view, it cannot be said to be such a mistake by which the exemption could be disallowed outrightly. It was already stated by the assessee during the course of hearing before the AO himself that it complies with all the requirements for claim of exemption u/s 10B. The assessee company was under the bonafide belief that there was no mistake in the return, hence no revised return was filed but after knowing the clerical/computerized mistake that the claim was wrongly mentioned as u/s 80IB instead of Sec.10B, the assessee company filed a revised computation of income claiming deduction u/s 10B of the IT Act vide letter dt. 13/12/2010 before the AO. Not only this, the assessee also filed copy of ARE-1 duly sealed and signed by the custom authorities in respect of the exports having taken place. For evidencing realization of export bills, the statement of outstanding export bills from Andhra Bank as on 31/08/2008 showing the export bills outstanding for realization as on that date was also submitted. From the statement of outstanding export bills as confirmed by the Andhra Bank, it was clear that no bill prior to the date of March, 2008 had been shown as outstanding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt was with regard to provisions of Sec. 139(5) which reads as under:- (5) If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under subsection (1) of section 142, discovers any omission or any 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 : Provided that where the return relates to the previous year relevant to the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, the reference to one year aforesaid shall be construed as a reference to two years from the end of the relevant assessment year.] 5.6 He contended that the return was filed with a view to avoid penalty since his claim u/s 10BA was rejected by the Assessing Officer and confirmed by the CIT(A) in two previous years. Therefore, to avoid any penalty he has withdrawn his claim. However, subsequently when the decision came in his favour, the tribunal has written letter withdrawing the revised return which was filed on 7.5.2008. The main contention was that the return which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer to grant depreciation even if the assessee had not furnished the prescribed particulars. In this case the assessee did not give the particulars relating to depreciation in the return form nor did it claim depreciation. On being called upon by the Income-tax Officer to furnish necessary particulars the assessee in response thereto furnished the particulars under protest. On that basis the Income-tax Officer granted the depreciation. We do not think that the views expressed by the Madras High Court lay down correct law. Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by Section 34, there is no mandate on the Incometax Officer under Section 29 to compute the income by allowing depreciation under Section 32. In the second Madras case (CIT v. Southern Petro Chemicals Industries Corporation Ltd. MANU/TN/0902/1998 : [1998]233ITR400(Mad) the assessee did claim depreciation but he withdrew the same in the revised return. On that basis it was held that since the assessee had furnished the particulars regarding the claim of depreciation in the original return the assessee would not be able to withdraw his claim fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereupon revising the return if a case for loss arises which the assessee wishes to carry forward, the same would be impermissible. In terms, sub-section (5) of Section 139 allows the assessee to revise the return filed under subsection (1) or sub-section (4) as long as the time frame provided therein is adhered to and the requirement of the revised return has arisen on discovery of any omission or a wrong statement in the return originally filed. Accepting the contention of the revenue would amount to limiting the scope of revising the return already filed by the assessee flowing from sub-section (5). No such language or intention flows from such provision. 6.1 The Allahabad High Court in case of Dhampur Sugar Mills Ltd. vs. Commissioner of Income Tax, Delhi Central reported in [1973] 90 ITR 236, in the context of the Income Tax Act, 1922 held that the assessee is given a right to file a correct and complete return if he discovers an error or omission in the return filed earlier. The assessment can be completed only on the basis of the correct and complete return. The earlier return, after a revised return has been filed, cannot form the basis of assessment although it may be us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... He also relied upon the decision of Allahabad High Court in Dhampur Sugar Mills Ltd. Vs. Commissioner of Income Tax (1973) 90 ITR 236 wherein it has been held as under:- 5. The question however remains as to whether this return will continue to form the basis for purposes of assessment even after it was substituted by a revised return. Section 22(3) of the 1922 Act as also Section 139(5) of the 1961 Act permit an assessee to file a revised return if he discovers any omission or wrong statement in the return filed by him. The Income-tax Actcontemplates the filing by the assessee of a correct and complete return. The law gives him a right to substitute and bring on record a correct and complete return if he discovers any omission or wrong statement in the return originally filed by him. The law cannot contemplate the making cf assessment on the basis of a return which even the assessee claims contains wrong statements. When an assessee files a revised return, he in fact admits that the original return filed by him was not correct or complete and substitutes the same by a revised return which according to him is correct and complete. The effective return for purposes of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even before first authority or the Tribunal and when the act and provisions are made it is not to be presumed ultra vires unless it has been quashed and set aside by the High Court or any High Court or the Supreme Court, in writ jurisdiction. 11. In our considered opinion, regarding Section 35G it will not be appropriate to held any provision to be unconstitutional because power under section 35G is only to be exercised in substantial question of law arising out of the Central Excise Act and not on any constitutional point. 12. In that view of the matter, the fist question is required to be answered against the assessee in favour of the department. On the second issue which is posed for our consideration is Section 10 of the General Clauses Act and the judgment of Manglore Chemicals (supra). 13. In our considered opinion, when considering the rule there are five conditions which are required to be fulfiled since the assessee is claiming exemption. If one is to claim exemption and non-payment of tax, interpretation of such exemption should be construed and it is in aid to rule. Once the interpretation is found to be proved one has to go by the rule. 14. In our considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Again copies of all necessary documents are enclosed hereby for your reference. 7. It may be pointed out that it is a settled law that there can be no estoppels against law. If a claim is legitimately allowable to me the same has to be allowed even if I make such a claim in assessment proceeding. In present case I have originally made the claim but for the reasons stated above I withdrew the said claim but now in view of the ITAT decision I be allowed the claim of deduction u/s 10BA as originally claimed by me. 10. In that view of the matter, revised return was not permissible and revised return of revised return is not thought of by the legislature. Thus, u/s 139(5) once return is filed after the period of limitation which is prescribed under the Act, the position of the assessee is very clear that he cannot do it. It is only for the department to take the call whether to accept or not. 11. On the point of Sec.80A (5), in our considered opinion the return which is claimed under consideration not of return which he has filed. In that view of the matter, the contention of Mr. Pathak that the revised return alongwith the earlier return ought to have been considered, in our ..... X X X X Extracts X X X X X X X X Extracts X X X X
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