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TMI Blog2023 (6) TMI 1214X X X X Extracts X X X X X X X X Extracts X X X X ..... bad in law, against the facts of the case and principles of natural justice. 2. That the assessment of income by the Ld AO is illegal since the Assessment Order is based on a time barred revised Return. . 3. That the assessment, of income by the Ld AO is erroneous since additions made to the returned income under Section 68 in respect of unsecured loans have not been obtained during the Financial Year relevant to the Assessment Year 2011-12. 4. The appellant therefore, pray that the appeal may be admitted and orders may be passed rendering justice to the appellant. 5. That the Appellant craves for the right to add, alter, amend or delete any ground of appeal during the course of appeal proceedings. 4. We have heard the rival submissions and perused the materials available on record. The assessee is a proprietor of M/s. Garhwal Sabzi Bhandar, Vikas Nagar and is in business of commission agent. The assessee has shown business income from commission agent and income from other sources. The return of income for the assessment year 2011-12 was originally filed under section 139(1) of the Income-tax Act, 1961 (in short 'the Act') on 14.12.2011 declaring total income of Rs. 2,45, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 96/- to all the assessment years commencing from assessment years 2011-12 to 2017-18. Accordingly, the additional income offered by him in the revised return filed on 13.12.2018 for various assessment years are as under: Assessment year Amount (in Rs. ) 2011-12 4,17,602 2012-13 6,40,112 2013-14 6,37,080 2014-15 27,95,725 2015-16 7,96,806 2016-17 12,16,310 2017-18 9,97,365 7. The assessee in the revised return filed on 13.12.2018 submitted that the taxes and interest payable on the additional income so offered for the AYs 2011-12 to 2016-17 had to be appropriated from the refunds available in assessment year 2017-18 in view of the fact that the income disclosed in the revised return filed for assessment year 2017-18 is less by roughly Rs. 65 lakhs and it would ultimately result in refund. In other words, the refund arising in assessment year 2017-18 was sought to be adjusted by the assessee with the demands payable for assessment years 2011- 12 to 2016-17 pursuant to the revised returns filed on 13.12.2018. 8. Learned AO did not agree to the contentions of the assessee in distributing the unaccounted income of Rs. 74,96,096/- to various years. Having not ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... due date as per section 139(1) of the Act. Admittedly, the maximum time granted by learned AO in the notice issued under section 153A of the Act to the assessee for filing of returns for assessment years 2011-12 to 2016-17 was 22.01.2018. Hence, the date of 22.01.2018 becomes the due date as per section 139(1) of the Act. When the return is not filed within due date, the returns filed by the assessee on 13.06.2018 would become belated returns. 12. Next consequential issue that emerges for consideration is as to whether such belated returns could be revised or not. This issue is no longer res integra in view of the decisions of Hon'ble Supreme Court in the case of Kumar Jagdish Chandra Sinha Vs. CIT, reported in 220 ITR 67 (SC). 13. The issue of maximum time limit granted by learned AO in the notices issued under section 153A of the Act to file the return is to be construed as due date under section 139(1) of the Act, has been duly addressed by the Coordinate Bench decision of Chennai Tribunal in the case of ACIT Vs. V.N. Devadoss, in ITA No.1219 & 1221/Mad/2012, dated 04.02.2013 and ACIT Vs. V.N. Devadoss (HUF) in ITA No.1220,1222 & 1223/Mds/2012, dated 04.02.2013. The relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and explanations thereto. Therefore, the reference made to section 139 in section 153A(1)(a) is virtually the reference made to section 139(1). 35. It is suffice to mention section '139' while stating the character of the return filed under section 153A. That is why, sub-section(l) of section 139 has not been more particularly provided in section 153A(1)(a). 36. Search under section 132 enables an Assessing Officer to issue notice to file returns under section 153A. Section 153A is a substantive provision to do the assessment for six assessment years. Section 153A, by way of adaptation, conveys the responsibility for filing of the return under section 139 Therefore, a return filed in pursuance of a notice issued under section 153A is as good as a return filed under section 139 and more particularly under section 139(1). 37. In the present case, the assessees being the builders, had the option to recognize their income either on percentage completion method or on project completion method. Therefore, it was not certain to hold that the assessees were liable at all to file returns under section 139(1). Whether the assessees had recognized their income for the impugned assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two relevant decisions of the Income-tax Appellate Tribunal. The Income-tax Appellate Tribunal, F-Bench, Mumbai in the case of Mr. Faisal Abbas vs DCIT, in ITA Nos.3485 & 3487/Mum/2010 dated 25-10-2011 has held that the return of income filed under section 153A was to be deemed to be a return filed under section 139 and therefore all other provisions of the Act would apply in view of the provisions of law stated in section 153A(1)(a). The Tribunal, therefore, held that even if a return of income was filed under section 153A, the assessee was entitled for the benefit of brought forward losses to be set off against the assessable income. Section 139(3) provides that if any person who has sustained a loss in any previous year under the head 'Profits and gains of business or profession', the same could be carried forward and set off against future income only if the assessee has filed his return within the due date prescribed under section 139(1). It is exactly like the provisions of law stated in section 80AC. In spite of that, the Tribunal in the above stated case of Mr. Faisal Abbas has held that the assessee is still entitled for carry forward and set off of business loss as the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filing the return of income while issuing the notice under section 153A of the Act itself. Accordingly, where the return of income has been filed within the prescribed time limit for filing such return as per notice issued under section 153A of the Act, the assessee shall be eligible for filing revised return as the due date mentioned in the notice has to be considered as due date under section 139(1) of the Act. But where the return has been filed in response to notice under section 153A beyond the time limit permitted in the said notice under section 153A of the Act, the said return shall become belated return, which cannot be revised in view of the aforesaid decision of Hon'ble Apex Court in Kumar Jagdish Chandra Sinha reported in 220 ITR 67 (SC). 15. When a search is initiated, the assessee is not required to file his return till such time he receives notice under section 153A of the Act. Once such notice is received, the liability fastens on the assessee to file the return within the reasonable time specified in the relevant notice. This principle has been duly addressed by the Coordinate Bench of Chennai Tribunal referred to supra. 16. Considering the issue in dispute bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-16 in absence of any incriminating materials found during the course of search. Admittedly, the assessments for assessment years 2011-12 to 2015-16 are unabated/concluded assessments as on the date of search. For all these years, either the assessments were already completed or the due date of issuing notice under section 143(2) of the Act had already expired, as the case may be. The following table would prove this fact: Particulars Assessment Years Date Date of filing of original return under section 139(1) 2011-12 14.12.2011 2012-13 20.06.2012 2013-14 30.07.2013 2014-15 02.09.2014 2015-16 30.08.2015 Date of search 01.12.2016 21. Hence, from the above, it could be concluded that assessment years 2011-12 to 2015-16 are concluded assessments and the assessments thereon could be disturbed by learned AO only when he has in possession of any incriminating material found during the course of search relatable to those assessment years qua the additions made by learned AO. Admittedly, there is absolutely no incriminating material found during the course of search for assessment years 2011-12 to 2015-16 in respect of making addition made towards unsecur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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