Indian Kanoon - Search engine for Indian Law

1.4 That the entire basis adopted by the learned Commissioner of Income Tax (Appeals) is based on assumptions and presumptions, unsupported by any material and hence not tenable.

ITA No. 1004, 1005/D/2011, 4388/D/14 & Others Assessment year 2004-05 & Othrs 2 That the learned Commissioner of Income Tax (Appeals) further erred both in law and on facts in holding that the revised return of income filed by the assessee on 12.2.2007 declaring an income of Rs. 10,80,57,290/- and, revising the return filed in response to notice under section 148 of the Act on 22.5.2006 was nonest and invalid return. 2.1 That the learned Commissioner of Income Tax (Appeals) has overlooked the written submissions duly supported by judicial pronouncements wherein it was established that, a return filed in response to notice under section 148 of the Act can also be revised under section 139(5) of the Act and as such, the revised return filed on 12.2.2007 was a valid return.

1.4 That the entire basis adopted by the learned Commissioner of Income Tax (Appeals) is based on assumptions and presumptions, unsupported by any material and hence not tenable.

2 That the learned Commissioner of Income Tax (Appeals) further erred both in law and on facts in holding that the revised return of income filed by the assessee on 12.2.2007 declaring an income of Rs. 4,60,13,040/- was nonest and invalid return.

2.1 That the learned Commissioner of Income Tax (Appeals) has overlooked the written submissions duly supported by judicial pronouncements wherein it was established that, revised under section 139(5) of the Act was a valid return. 3 That the learned Commissioner of Income Tax (Appeals) has further erred both in law and, on facts in holding that, ITA No. 1004, 1005/D/2011, 4388/D/14 & Others Assessment year 2004-05 & Othrs aggregate sum of Rs. 4,10,20,996.81/- disclosed by the assessee in the revised return filed on 12.2.2007 represented unexplained investment under section 69 of the Act. 3.1 That the learned Commissioner of Income Tax (Appeals) has failed to appreciate that, sum of Rs. 4,10,20,996.81 represented sums received by the appellant company under an Agreement dated 23.7.2003 with M/s TPE for providing support services during implementation of their contract dated 29.7.2003 with M/s Uttar Pradesh Rajkiya Vidyut Utpadan Nigam Limited for refurbishment of Obra Thermal Power Station, Uttar Pradesh and, as such, the aforesaid sums could not be held to be unexplained investment under section 69 of the Act and, infact, were sums received in the course of business of appellant company and, thus assessable under the head "Profits and Gains of business of profession".

9.10 Accordingly grounds nos. 1 to 1.4 raised in ITA No. 1004/Del/2011 for Assessment Year 2004-05 and ITA No. 1005/Del/2011 for Assessment Year 2005-06 are allowed.

10. Grounds nos. 2 to 2.1 of Grounds of Appeal for AY 2004-05 and AY 2005-06 relate to the claim of the assessee that the revised returns furnished during the assessment proceedings were valid returns.

10.1 The relevant facts are that return was filed in response to notice under section 148 of the Act on 21.06.2006 declaring an income of Rs. 1,86,28,990/-. This return of income filed was revised on 12.02.2007 declaring an income of Rs. 10,80,57,290/-

10.6 As regards the period of limitation, it is noted that the original return for assessment year 2005-06 was furnished on 30.10.2005 and the revised return was furnished on 21.8.2006 which was further revised on 12.2.2007. The limitation provided under section 139(5) of the Act is one year from the end of the relevant assessment year. This means that the revised return could be filed up to 31.3.2007 and since the last revised return was filed on 12.2.2007, therefore, such revised return filed on 12.2.2007 is held to be valid. Further, for assessment year 2004- 05, the claim of the assessee is that a return of income had been furnished on 21.6.2006 in response to the notice dated 22.5.2006 under section 148 of the Act and the revised return filed on 12.2.2007 was in respect of return furnished in response ITA No. 1004, 1005/D/2011, 4388/D/14 & Others Assessment year 2004-05 & Othrs to notice under section 148 of the Act. It has been contended that the return filed in response to notice under section 148 of the Act was a return under section 139(1) of the Act and, therefore, revised in terms of section 139(5) of the Act. Having considered the above argument, we find substantial force in the same.