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TAXAP/138/2009 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 138 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE D.A.MEHTA
HONOURABLE
MS.JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
THE
COMMISSIONER OF INCOME TAX-II - Appellant(s)
Versus
HIMGIRI
FOODS LIMITED - Opponent(s)
=========================================
Appearance :
MR
MR BHATT, SR. COUNSEL with MRS MAUNA M BHATT
for Appellant(s) : 1,
None
for Opponent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 08/03/2010
ORAL
JUDGMENT
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
In
this appeal under Section 260A of the Income Tax Act, 1961 (the
Act), appellant-revenue has proposed the following question stated
to be a substantial question of law arising from the impugned order
of Tribunal dated 25th January 2007 of the Income Tax
Appellate Tribunal:
Whether
the Appellate Tribunal is right in law and on facts in confirming the
order passed by the CIT(A) in directing the Assessing Officer to
process revised return filed by the assessee u/s 143(1B) of the Act
though the same was filed after the original return had already been
processed u/s 143(1)(a) ?
The
assessment year is 1995-96. The respondent-assessee had filed its
original return of income for the assessment year under
consideration on 30th November 1995 disclosing total
income of Rs.21,46,600/-. The said return was filed in time and was
processed under section 143(1)(a) of the Act. Within a period of
one year from the relevant assessment year, the assessee on the
basis of the opinion of the Chartered Accountant and Tax Expert,
filed a revised return on 21st January 1997 declaring
business loss of Rs.12,08,686/-. The revised return was occasioned
because certain expenses which were of revenue nature remained to be
claimed in the original return as they were debited to pre-operative
expenses. The Assessing Officer did not process the revised return
under section 143(1B) of the Act and intimated the assessee that he
was not acting upon the revised return as assessment under section
143(1) (a) was already completed. In the meantime, the assessee
moved an application under section 119 of the Act before the
Commissioner of Income Tax, Gujarat-1, Ahmedabad on 27th
December 1999, requesting for issuance of directions to the
Assessing Officer to consider the revised return filed under section
139(5) of the Act. The said application came to be rejected by
Commissioner who also held that the claim of the assessee was devoid
of any merit and that, section 139(5) was not intended to provide a
loophole for reducing the tax liability by extra legal means. The
assessee, thereafter moved an application dated 30th
March, 2000 under section 154 of the Act before the Assessing
Officer requesting him to take cognizance of the revised return
under the provisions of section 143(1B) of the Act. The Assessing
Officer rejected the said application holding that the revised
return had been filed beyond the time limit stipulated under section
139(5) of the Act. While rejecting the said application the
Assessing Officer also placed reliance upon the order passed by
Commissioner under section 119 of the Act.
The
assessee carried the matter in appeal before Commissioner (Appeals)
who recorded a finding that the revised return was filed on 21st
January 1997, but rejected the application on other grounds. The
assessee carried the matter in further appeal before Tribunal, who,
vide the impugned order dated 25th January 2007 allowed
the appeal.
Mr.
M. R .Bhatt, learned Senior Counsel appearing for the appellant
revenue supported the orders passed by the Assessing Officer and the
Commissioner, (Appeals).
As
can be seen from the impugned order of the Tribunal, the Tribunal
has held that under section 143(1B) of the Act, it is permissible
for an assessee to file a revised return under section 139(5) after
issuance of the intimation and that the intimation already sent is
required to be amended on the basis of the revised return; that the
said provision does not permit the Assessing Officer to consider the
validity of the claim made by the assessee under section 139(5) of
the Act. The Tribunal recorded as a matter of fact that the revised
return which was filed on 21st January, 1997 was within a
period of one year from the date of filing of the original return.
The Tribunal further found that although intimation as envisaged
under section 143(1) had been sent to the assessee prior to the
filing of the revised return, the assessment had not been completed
by the Assessing Officer by that date. The Tribunal was of the view
that an intimation under section 143(1)(a) of the Act cannot be
regarded to be an assessment and that if intimation under section
143(1)(a) is treated as an assessment the provisions of section
143(1B) would be rendered nugatory. The Tribunal held that section
143(1B) makes it obligatory on the part of the Assessing Officer to
process the revised return provided it is filed within the time
permitted under the Act and to revise the intimation that has
already been issued by the Assessing Officer. The Tribunal observed
that in the order made under section 154, the Assessing Officer had
not held that the revised return was invalid but had rejected the
application on the ground that the return had been filed beyond
time, whereas on the basis of evidence and the material filed before
it, the Tribunal has found as a matter of fact that the revised
return had been filed within the time permitted under section 139(5)
of the Act. The Tribunal, accordingly held that once the revised
return was filed within time, the Assessing Officer was bound to
process it under section 143(1B) of the Act.
Sub-section
(5) of section 139 provides that if any person, having furnished a
return under sub-section (1), or in pursuance of a notice issued
under sub-section (1) of section 142, discovers any omission or
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 assessment, whichever is
earlier.
In
the present case the assessment year is 1995-96. It is an admitted
position that only intimation under section 143(1) (a) had been
issued and that the assessment had not been completed when the
revised return came to filed. Hence, the assessee was entitled to
furnish the revised return at any time before the expiry of one year
from the end of assessment year 1995-96. From the facts noted
hereinabove it is apparent that the revised return was filed on 21st
January, 1997 which is well within the prescribed period.
Section
143(1B) as it stood between 1.4.1989 to 31.5.1999, insofar as the
same is relevant for the purpose of the present appeal reads thus:
(1B)
Where an assessee furnishes a revised return under sub-section (5) of
section 139 after the issue of an intimation, or the grant of refund,
if any, under sub-section (1) of this section, the provisions of
sub-sections (1) and (1A) of this section shall apply in relation to
such revised return and-
the
intimation already sent for any income-tax, additional tax or
interest shall be amended on the basis of the said revised return
and where any amount payable by way of income-tax, additional
income-tax or interest specified in the said intimation has already
been paid by the assessee then, if any such amendment has the effect
of-
enhancing
the amount already paid, the intimation amended under this clause
shall be sent to the assessee specifying the excess amount payable
by him and such intimation shall be deemed to be notice of demand
issued under section 156 and all the provisions of this Act shall
apply accordingly;
reducing
the amount already paid, the excess amount shall be refunded to the
assessee;
(ii)
xxxx.
On
a plain reading of section 143(1B) it is apparent that the provision
mandates that if after the issuance of intimation, a revised return
is furnished by an assessee under sub-section (5) section 139 it is
incumbent upon the Assessing Officer to process the revised return
and amend the intimation issued under section 143(1)(a) on the basis
of the revised return. At this stage there is no question of going
into the validity of the return filed under section 139(5) of the
Act, if the revised return is filed within the prescribed period of
limitation. An intimation under section 143(1)(a) of the Act cannot
be equated with an assessment framed under section 143(3) of the Act
and the Assessing Officer cannot refuse to process the revised
return and modify the intimation in accordance with section 143(1B)
of the Act.
In
the aforesaid facts and circumstances, it cannot be said that the
impugned order of the Tribunal suffers from any legal infirmity so
as to warrant interference. The appeal is, accordingly, dismissed in
absence of any question of law, as proposed or otherwise, much less
any substantial question.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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