Kerala High Court
M/S. Vaniampara Rubber Co. Ltd vs The Assistant Commissioner Of Income on 30 March, 2010
Author: Antony Dominic
Bench: Antony Dominic
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU
THURSDAY, THE 26TH DAY OF MAY 2016/5TH JYAISHTA, 1938
ITA.No. 277 of 2010 ( )
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AGAINST THE ORDER/JUDGMENT IN ITA 875/COCH/2008 of I.T.A.TRIBUNAL,COCHIN
BENCH DATED 30-03-2010
APPELLANT(S)/APPELLANT:
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M/S. VANIAMPARA RUBBER CO. LTD.,
VAZHAKALA BUILDING, K.K.ROAD, KOTTAYAM-686 001.
BY ADVS.SRI.JOSEPH MARKOSE (SR.)
SRI.V.ABRAHAM MARKOS
SRI.MATHEWS K.UTHUPPACHAN
SRI.TERRY V.JAMES
SRI.B.J.JOHN PRAKASH
RESPONDENT(S):
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THE ASSISTANT COMMISSIONER OF INCOME
TAX, CIRCLE-I, KOTTAYAM.
R BY SRI.P.K.R.MENON, SC, IT
R BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX
THIS INCOME TAXAPPEAL HAVING BEEN FINALLY HEARD ON 26-05-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
APPENDIX IN ITA.277/10
APPELLANTS' EXHIBITS:
ANNEXURE A: TRUE COPY OF THE COMPUTATION OF INCOME FILED WITH THE
ORIGINAL RETURN.
ANNEXURE B: TRUE COPY OF INTIMATION ISSUED BY THE RESPONDENT UNDER
SECTION 143(1) ON 15.12.2005.
ANNEXURE C: TRUE COPY OF NOTICE DATED 5.4.2006 ISSUED BY THE RESPONDENT
UNDER SECTION 143(2).
ANNEXURE D: TRUE COPY OF THE COMPUTATION ACCOMPANYING THE REVISED
RETURN OF the APPELLANT.
ANNEXURE E: TRUE COPY OF LETTER DATED 10.10.2007 ISSUED BY THE
DEPARTMENT.
ANNEXURE F: TRUE COPY OF REPLY DATED 22.10.2007 FILED BY THE APPELLANT.
ANNEXURE G: TRUE COPY OF ASSESSMENT ORDER DATED 12.11.2007 ISSUED BY
THE RESPONDENT.
ANNEXURE H: TRUE COPY OF APPELLATE ORDER DATED 30.6.2008 OF THE
COMMISSIONER OF INCOME TAX.
ANNEXURE I: TRUE COPY OF ORDER DATED 22.7.2008 ISSUED BY THE RESPONDENT.
ANNEXURE J: TRUE COPY OF SECOND APPEAL DATED 28.8.2008 FILED BY THE
RESPONDENT BEFORE THE APPELLATE TRIBUNAL.
ANNEXURE K: CERTIFIED COPY OF ORDER DATED 30.3.2010 OF the APPELLATE
TRIBUNAL.
/TRUE COPY/
PS TO JUDGE
ANTONY DOMINIC & DAMA SESHADRI NAIDU, JJ.
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I.T.A.No.277 of 2010
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Dated this the 26th day of May, 2016
JUDGMENT
Antony Dominic, J.
1. The assessee has filed this appeal aggrieved by the order passed by the Income Tax Appellate Tribunal, Cochin Bench in ITA.875/08 concerning the assessment year 2005-06. The assessee is a company. On 29.10.2005, the assessee filed its return for the assessment year 2005-06. On 15.2.2005, notice under section 143(1) of the Income Tax Act was issued to the assessee and on 5.4.2006, the assessment was re- opened for completion under section 143(3). Subsequently, on 8.10.2007, the assessee filed a revised return under section 139(5) of the Act. Rejecting the revised return filed by the assessee as belated, assessment order was issued under section 143(3). The appeal filed by the assessee was allowed by the Commissioner (Appeals). The matter was carried before the Tribunal at the instance of the Revenue, which was allowed by the impugned order. It is in this background, this appeal is filed raising ITA.277/10 2 the following questions of law for the consideration of this Court:
i. Whether on the facts and in the circumstances of the case and in the light of the fact that the intimation under Section 143(1) was reopened for completion of assessment under Section 143 (3) the Appellate Tribunal was right in holding that the revised return filed by the Appellant before completion of assessment under Section 143(3) cannot be acted upon?
ii. Whether on the facts and in the circumstances of the case and in the light of Section 10(38) and the claim made by the Appellant for excluding the receipt from sale of shares from total income made during the course of assessment proceedings the Appellate Tribunal was right in confirming the assessment of long term capital gain from sale of shares on the ground that the Appellant had returned the receipt in the original return?
iii. Whether on the facts and in the circumstances of the case the Assessing Officer having accepted the revised return for the purpose of computing the deduction under Section 33AB based on the revised return can at the same time reject the revised return as beyond the period of limitation for the purpose of denying ITA.277/10 3 a claim for exclusion from total income under Section 10(38)?
iv. Whether on the facts and in the circumstances of the case the mere circumstance that the petitioner has shown a receipt as an income in the return makes the Petitioner liable to tax thereon even if the said receipt is excluded from the scope of total income under Section 10(38)?
2.We heard learned counsel for the appellant and learned senior standing counsel for the Revenue.
3.According to us, the short question that requires to be considered is whether the revised return filed by the assessee was liable to have been accepted. The answer to this question will depend upon the terms of section 139(5) of the Act. This provision reads thus:
"139. Return of Income * * * * * * * (5) 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 ITA.277/10 4 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."
4.Reading of this provision shows that if any person who has filed a return under section 139(1) discovers any omission or any wrong statement in the return, he may furnish a revised return. The section, however, further provides that such revised return shall be filed 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. In so far as this case is concerned, admittedly, on 29.10.2005, the assessee had filed its return under section 139(1). The revised return was filed by it, again admittedly, only on 8.10.2007. This obviously ITA.277/10 5 is beyond the end of the relevant assessment year 2005-06. This means that the revised return was filed belatedly and could not have been entertained. Consequently, neither the Assessing Officer nor the Tribunal can be faulted for taking the view that the revised return filed belatedly could not have been accepted.
5.However, learned counsel for the assessee relied on various judgments in order to drive home the point that at any stage of the proceedings, the assessee had the freedom to point out the omission and errors in the return and that the Assessing Officer or the other authorities under the Act are bound to have acted upon the same. The first decision relied on is a judgment of the Division Bench of this Court in Parekh Brothers v. Commissioner of Income Tax, Kerala-II, Ernakulam [(1984) 150 ITR 105]. The portion of the judgment which was relied on by the learned counsel only explains the circular dated 11.4.1955 issued by the Central Board of Direct Taxes. The section which has been extracted in the judgment explains the manner in which the statutory ITA.277/10 6 authorities under the Act are to discharge their duties.
6.The next judgment that is relied on by the learned counsel is Chandrakant J.Patel v. V.N.Srivastava [(2011) 339 ITR 310]. This judgment only lays down that there is no restriction on the Commissioner's revisional power to give relief to the assessee in a case where the assessee detects a mistake on account of which he was over-assessed, after the assessment was completed. The next judgment relied on by the learned counsel is Sanchit Software and Solutions P.Ltd. v. Commissioner of Income Tax [(2012) 349 ITR 404 (Bom)]. In this judgment, finding that the Commissioner of Income Tax committed a fundamental error in proceeding on a erroneous assumption of fact while passing an order, the Bombay High Court had set aside the order and remitted the matter back for fresh consideration.
7.Counsel also placed reliance on the judgment of the Apex Court in National Thermal Power Co. Ltd. v. Commissioner of Income Tax [(1998) 229 ITR 383]. In ITA.277/10 7 this judgment, referring to the provisions of section 254, the Apex Court has explained the wide powers that are conferred on the appellate Tribunal. However, in the subsequent judgment in Goetze (India) Ltd. v. Commissioner of Income Tax [(2006) 284 ITR 323], the Apex Court itself clarified that the judgment in National Thermal Power Co. Ltd. (supra) does not, in any way, relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return.
8.Having considered the judgments relied on by the learned counsel, we are of the view that none of the judgments or the principles therein would come to the rescue of the appellant to insist that revised return filed by them in violation of the provisions under section 139(5) of the Act should have been accepted by the Assessing Officer. On the other hand, the judgment in Goetze (India) Ltd. (supra) emphasises the need for filing a revised return which obviously has to be in compliance with section 139(5). We, therefore, do not find any illegality in the view taken by the Tribunal.
ITA.277/10 8 In the aforesaid circumstances, answering the questions of law raised by the appellant in favour of the Revenue and against the assessee, this appeal is dismissed.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
DAMA SESHADRI NAIDU, Judge.
kkb.