Income Tax Appellate Tribunal - Hyderabad
Andhra Pradesh Industrial Development ... vs Dcit, Circle-1(1), Hyderabad, ... on 7 September, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
HYDERABAD BENCHES "A", HYDERABAD
BEFORE SHRI D. MANMOHAN, VICE PRESIDENT
AND
SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER
I.T.A. No. 548/HYD/2017
Assessment Year: 2011-12
M/s. Andhra Pradesh Deputy Commissioner
Industrial Development Vs of Income Tax,
Corporation Limited, Circle-1(1),
HYDERABAD HYDERABAD
[PAN: AABCA7395Q]
(Appellant) (Respondent)
For Assessee : Shri A.V. Raghu Ram, AR
For Revenue : Smt. Suman Malik, DR
Date of Hearing : 31-08-2017
Date of Pronouncement : 07-09-2017
ORDER
PER INTURI RAMA RAO, A.M. :
This appeal filed by assessee-company is directed against the order of the learned Commissioner of Income Tax (Appeals)-5, Hyderabad, dated 30-12-2016 for the AY. 2011-12. The appellant raised the following Grounds of Appeal:
"1. The order of the learned CIT (A) not only is erroneous both on facts and in law but is contrary to the settled principles of law.
2. The learned CIT(A) erred in confirming the action of the AO in not accepting the revised computation based on audited financial statements without appreciating the legal position that the AO is bound to make assessment based only on audited financial statements and not based on provisional financial statements.
I.T.A. No. 548/Hyd/2017 :- 2 -:
3. The learned CIT(A) erred in holding that such revised computation based on Audited financial statements should be filed in the form revised return though no such ratio would apply for a decision by the appellate authority and there by erred in dismissing the appeal.
4. The learned CIT(A) failed to appreciate the fact that even the CBDT has issued circular u/s. 119 in respect of Government Corporations to accept the returns filed belatedly accepting the fact that the audited financial statements of the Government Corporations would invariably get delayed and in the assessee's case in view of such delay there was no time to file revised return and thereby erred in dismissing the appeal.
5. Any other ground that may be urged at the time of hearing".
2. Briefly, facts of the case are that the appellant is a Government company, engaged in providing finance to industries set up in the State of Andhra Pradesh. It filed return of income for the AY. 2011-12 disclosing total income of Rs. 2,80,48,470/- on 28-09-2011 under the normal provisions of the Income Tax Act [Act] and Rs. 3,90,47,195/- u/s. 115JB of the Act. After processing the return u/s. 143(1) of the Act, the said return was selected for scrutiny. During the course of assessment proceedings, the appellant had filed revised computation of income necessitated on account of audited accounts. The original return of income was filed based on the provisional accounts. However, the AO not considered the revised computation of income submitted by the assessee-company and proceeded with the framing of assessment order. Being aggrieved, appellant preferred an appeal before the CIT(A), who vide impugned order had dismissed by holding as under:
"5. The Decision: On the contentions of the appellant, the following questions fall for consideration:-
(i) Whether an assessee can revise his return of income by way of filing a revised statement of income after filing original return other than by way I.T.A. No. 548/Hyd/2017 :- 3 -:
of filing revised return as contemplated under Section 139(5) of the Income Tax Act?
(ii) Whether the Assessing Officer is justified in holding that the assessee has no right to claim revised income before the Assessing Officer after filing of the original return other than by way of filing revised return?
5.1 The facts are that the assessee, a government company follows mercantile system of accounting and has filed its return of income on 28- 09-2011 based on unnaudited provisional accounts admitting total income of Rs.2,80,48,470/- under normal provisions of the Act and Rs.3,90,47,195/- u/s. 115JB. During the assessment proceedings, the appellant filed revised computation of income based on audited accounts revising the income into loss of Rs.1,04,90,340/- under normal provisions and Rs. 4,04,46,756/- under Section 115JB as against admitted originally of Rs. 3,90,47,195/- along with audited accounts and audit report. The return was filed on the basis of provisional statement of accounts as the statutory audit was not completed. The returns were filed on the basis of the provisional accounts and it was claimed that during the course of audit it was found that reversal of provision for diminution in value of investments was taken as Rs.3,33,18,048/ - whereas the correct figure is Rs. 47, 10,269/- only. On the basis of the original return filed notices under Section 143(2) and 142(1) were issued to the assessee to produce the documents/accounts. Assessment was completed under Section 143(3) on the basis of the original return. The assesse filed a rectification petition which was also rejected.
5.3 It is quite possible and natural that in submitting a return, some bona fide omission or wrong statement may have occurred. In order to obviate this possibility the legislature has made provisions in section 139(5) enabling an assessee to furnish a revised return. Thus, the assessee has a right to file revised return if he discovers any omission or any wrong statement in the originally filed return. Such a revised return can be furnished at any time before expiry of one year from the end of the relevant A.Y. or the completion of the assessment, whichever is earlier. Thus, the statute provides safeguard to an assessee in case he discovers any omission or wrong statement in his original return to file a revised return. The further requirement is that this omission or wrong statement in the original return must be due to a bona fide inadvertence or mistake on the part of the assessee.
5.4 There is a distinction between a revised return and a correction in the originally filed return. If an assessee files an application for correcting a return already filed or for making some amendments therein, it would not certainly mean that he has filed a revised return. Such a petition is not recognized under the Income Tax Act. The basis of assessment is the return filed by the assessee. If a revised return is filed under Section I.T.A. No. 548/Hyd/2017 :- 4 -:
139(5) of the Income Tax Act the assessment can be completed only on the basis of revised return and not otherwise.
5.5 Where an assessee furnishes a return of income, the filing of a revised statement of income, on the ground that reversal of provision for diminution in value of investments, is of no avail. In absence of the revised return as provided under Section 139(5), the Assessing Officer is bound to make assessment on the basis of original return. Further, a change over from mercantile system to cash system is not permissible by filing a revised return much less a revised statement of income.
5.6 There is no provision under the Income Tax Act to enable an assessee to revise his income by way of filing a revised statement of income as has been done by the petitioner. In the instant case, a revised statement of income was filed before the Assessing Officer after commencement of assessment proceedings. If such revised statement of income is accepted, then the very purpose of enacting Section 139(5) under the Income Tax Act for filing revised return shall be frustrated and provision of said section becomes redundant. During the relevant time, as the assessee had maintained the accounts, it was bound to file the returns on that basis.
5.7 The Honble Supreme Court in the case of Goetze (India) Ltd. (2006) 284 ITR 323 (SC), held that the Assessing Officer has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return.
5.8 Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden.
The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alteris", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (Taylor v. Taylor (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma and Indian Banks Association v. Devkala Consultancy Service AIR 2004 SC 2615).
5.9 Therefore, I am of the view that the Assessing Officer is justified in completing the assessment under Section 143(3) of the Income Tax Act on the basis of the original return filed under Section 139(1) without taking into consideration the revised statement filed subsequently in absence of the revised return as contemplated under Section 139(5) of the Income Tax Act. While drawing this inference, I rely on ORISSA RURAL HOUSING DEVELOPMENT CORPORATION LTD. vs. ASSISTANT COMMISSIONER OF INCOME TAX (2012) 247 CTR 0137: (2012) 343 ITR 0316: (2012) 204 TAXMAN 0673, where in it was held that there is no provision under the IT I.T.A. No. 548/Hyd/2017 :- 5 -:
Act to enable an assessee to revise his income by way of filing a revised statement of income. Assessee cannot revise his return of income by way of filing a revised statement of income. In absence of the revised return as provided under s. 139(5), the AO is bound to make assessment on the basis of original return".
Being aggrieved, appellant preferred an appeal before us in the present appeal.
3. We have heard the rival submissions and perused the material on record. The only issue in the present appeal is whether the AO was justified in ignoring the revised computation of total income submitted during the course of assessment proceedings on the ground that no revised return of income was filed. Now, the law is quite settled to the extent that a claim made before the AO by way of a letter even it did not form part of original return of income can be entertained by the AO. It is trite law that income tax proceedings are not adversial proceedings. The decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (2006) 284 ITR 323 (SC) held to be inapplicable to the proceedings before the CIT(A) and Tribunal and it is also well settled that the AO can always entertain a claim made before him by way of letter and in this context, it is relevant to refer to the judgements of the Hon'ble Delhi High Court in the following cases:
i. CIT Vs. Sam Global Securities Ltd., [38 taxmann.com 129 (Delhi)];
ii. CIT Vs. Jai Parabolic Springs Ltd., [ 306 ITR 42] [172 taxman 258 (Delhi)] I.T.A. No. 548/Hyd/2017 :- 6 -:
3.1. Recently, the Hon'ble Madras High Court in the case of CIT Vs. Abhinitha Foundation P. Ltd., [83 taxmann.com 100] held as under:
"12.5 A reading of the aforesaid observations would clearly establish that the arguments advanced by Mr.Ravi that the assessee company could only raise an additional ground and not make a new claim or additional claim is not sustainable. As indicated by us hereinabove, this power of entertaining the claim vests with the appellate authorities based on the facts and circumstances of the case. The power of the appellate authorities to consider claims made based on material already on record is coterminous with the power of the Assessing Officer. The failure to advert to the claim in the original return or the revised return cannot denude the appellate authorities of their power to consider the claim, if, the relevant material is available on record and is otherwise tenable in law. Any other view, in our opinion, will set at naught the plenary powers of appellate authorities.
13. The judgment of the Division Bench of this Court rendered in Shriram Investments case (supra) , which is relied upon by the learned counsel for the Revenue, is clearly distinguishable, as in that case, the assessee had sought assessment of tax by disclosing a lower taxable income, albeit, by filing a second revised return. It is in that context that the Division Bench came to the conclusion that the second revised return, which was filed beyond the period of limitation, being non est in law, would not be considered for the purposes of ascertaining the taxable income.
14. In so far as the judgment of the Supreme Court in the matter of Shriram Investments case (supra) is concerned, according to us, it has no applicability to the issue raised in the instant appeal. In that case, the Tribunal appears to have allowed the claim of the assessee for deduction under Section 35 B of the Act without examining the facts of the case. The assessee, evidently, had neither made a claim before the ITO nor the AAC nor, had he, furnished particulars of the expenditure incurred by it. It is in this context that the Supreme Court observed that the onus of proving facts and obtaining the benefit of a deduction lay on the assessee. It was further observed that since the assessee failed to prove its claim before the ITO or the AAC, the Tribunal could not have allowed the claim on assumption of facts.
15. As indicated above, the ratio on the said judgment is entirely different and therefore, has no applicability to the facts of the instant case.
16. Similarly, the judgment of the Allahabad High Court in the matter of G.S. Rice Mills case (supra) is distinguishable, inasmuch as the assessee I.T.A. No. 548/Hyd/2017 :- 7 -:
had neither made a claim before the ITO nor was any material placed on record in support of the claim. The High Court, in this context, held that the Tribunal was not justified in entertaining the claim made under Section 80G of the Act and thereupon, issuing a consequent direction to the ITO to examine the same on merits.
16.1 As would be evident from the narration of facts set out above, in the present case, the Tribunal has noted that relevant material was placed by the assessee company before the Assessing Officer during the course of the assessment proceedings. Therefore, in our view, the said judgment is also distinguishable.
17. A similar situation arose in the case of Gurjargravures (P.) Ltd. (supra). In this case as well, it was noticed that neither was any claim made before the ITO nor was any supporting material placed on record. It is in this background that no relief was granted. The Supreme Court, in this case, disagreed with the High Court, inasmuch as it sustained the direction of the Tribunal issued to the ITO to grant appropriate relief qua claim made under Section 84 of the Act.
18. In sum, what emerges from a perusal of the ratio of the judgments cited above, in particular, the judgments rendered by the Supreme Court in Goetze's India Ltd.'s case (supra) and National Thermal Power Co. Ltd.'s case (supra), and those, rendered by the Division Bench of this Court in Ramco Cements Ltd. (supra) and Malind Laboratories (P.) Ltd. (supra) as also the judgments of the Delhi High Court in Sam Global Securities Ltd.'s case (supra) and Jai Parabolic Springs Ltd.'s case (supra), that, even if, the claim made by the assessee company does not form part of the original return or even the revised return, it could still be considered, if, the relevant material was available on record, either by the appellate authorities, (which includes both the CIT(A) and the Tribunal) by themselves, or on remand, by the Assessing Officer.
In the instant case, the Tribunal, on perusal of the record, found that the relevant material qua the claim made by the assessee company under Section 80IB (10) of the Act was placed on record by the assessee company during the assessment proceedings and therefore, it deemed it fit to direct its reexamination by the Assessing Officer.
18.1 In our opinion, the view taken by the Tribunal is unexceptionable and therefore, does not merit any interference.
19. Consequently, the Tax Case Appeal is dismissed, leaving the parties to bear their own costs".
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3.2. In the light of the law enunciated above, we are of the considered opinion that AO as well as the CIT(A) ought not to have rejected the revised computation filed during the course of assessment proceedings and we therefore, remit the matter back to the file of the AO to consider the revised computation in accordance with the provisions of law.
4. In the result, appeal of assessee is partly allowed for statistical purposes.
Order pronounced in the open court on 7th September, 2017 Sd/- Sd/-
(D. MANMOHAN) (INTURI RAMA RAO) VICE PRESIDENT ACCOUNTANT MEMBER Hyderabad, Dated 7th September, 2017 TNMM Copy to : 1. M/s. Andhra Pradesh Industrial Development
Corporation Limited, C/o. K. Vasant Kumar, A.V. Raghu Ram, P. Vinod & M. Neelima Devi, Advocates, 610, Babukhan Estate, Basheerbagh, Hyderabad.
2. The Dy. Commissioner of Income Tax, Circle-1(1), Hyderabad.
3. CIT (Appeals)-5, Hyderabad.
4. Pr.CIT-1, Hyderabad.
5. D.R. ITAT, Hyderabad.
6. Guard File.