TMI Blog1995 (2) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer u/s 143(1) was neither erroneous nor prejudicial to the interests of the revenue and the application of section 263 was not warranted. 2. Though the assessee has raised definite grounds challenging the order passed u/s 263 by the CIT, but the ld. counsel has raised a new legal issue before us to the effect that the ld. CIT had no jurisdiction in law to set aside an order, which was an invalid one. 3. The facts of the case are that the return was filed on 29-7-1986. The accounting period ended on 31-12-1985. The assessee had shown income for the year under appeal at Rs. 1,29,18,243 but, after adjustment of unabsorbed investment allowance, the net income was shown at 'nil'. This return was processed by the A.O. u/s 143(1) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty held for charitable or religious purposes ; (e) a return furnished under sub-section (4B) in respect of a political party ; and (f) a return furnished in support of a claim for refund u/s 237." The ld. counsel has vehemently argued that the exceptions contained in clauses (a) to (f) of the proviso to sub-section (10) did not cover the assessee because the assessee was a company and since total income had been shown in the return below the maximum amount which was not chargeable to tax, the return had to be treated as not having been furnished at all. It is contended that the return showing 'nil'income could not be treated to have been furnished at all in the light of clear and unambiguous provisions contained in sub-section (10) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), conferred jurisdiction on the A.O. to proceed in respect of asst. on the basis of the return filed by the assessee. The CIT could have only annulled the assessment but could not have done anything else. 5. The ld. D.R. has, in reply, contended that the CIT had rightly invoked section 263 of the Act inasmuch as certain disallowances were required to be made in respect of certain expenditures. So far as the legal issue is concerned, our attention has been drawn to a civil writ petition filed by the assessee before the High Court of Punjab and Haryana raising the similar legal question which has now been raised in this appeal. It is stated that the writ petition was dismissed, vide order dated 3-3-1992 because the assessee did not choose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st appellate authority. 6. We have considered the rival contentions but we are unable to agree with the revenue's plea that the Board's circular could be taken into consideration so as to over-ride or eclipse the specific and clear provision of law. We have already seen that section 139(10) applied to a case where a return of income showed the total income below the maximum amount not chargeable to tax. The assessee's case is found to be squarely covered under the said provision. We are unable to say as to how the CBDT specified in the circular that the returns filed by the companies are to be admitted by the Assessing Officer when the specific and unambiguous provision in sub-section (10) declared otherwise. On a plain reading of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any strength to the revenue's plea. So far as subsequent proceedings are concerned, we refrain from making any comments because those proceedings are not under consideration in the present appeal. It is noted that the assessee had shown in the annexures filed with the return, net profit, as per the profit and loss account, at Rs. 1,20,78,108. Total income, after making certain adjustments in respect of depreciation, payment of excise duty, sales-tax and provident fund, was shown at Rs. 1,29,18,243. Thereafter, unabsorbed investment allowance relating to the earlier three assessment years, viz., 1981-82, 1982-83 and 1983-84, was adjusted to the extent of the total income shown in this year. It appears that the assessee has further carried fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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