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Showing contexts for: revised return when valid in Deepak Cables (I) Ltd.,, Bangalore vs Department Of Income Tax on 21 September, 2007Matching Fragments
"(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 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."
6. It is clear from the aforesaid provision that a revised return can be filed at any time before the expiry of one year from the end of relevant assessment year or before the completion of assessment, whichever is earlier. The relevant assessment year in the present case is 2001-02, therefore, one year expires in 2003; whereas the assessment order is dated 31.3.2004. Hence, according to the provisions of section 139(5), the revised return should have been filed before 2003; whereas the same was filed on 26.3.2004. Hence, there is no dispute that the revised return is time barred. Law is very clear on this issue that a revised return has to be a valid revised return on the basis of which an assessment can be framed by the AO. Since the revised itself is a belated return, it cannot be said to be a valid revised return. Therefore, in our opinion, the order of assessment passed by the AO on the basis of this return is a nullity.
Penalty proceedings us/. 271(1)(c) initiated." (emphasis supplied by us)
8. It is clear from the aforesaid finding of the AO in the assessment order that the order of assessment was based on the total income declared by the assessee in the revised return only. Even if we accept the contention of the ld. DR that the present assessment has been framed on the basis of original return, in that event also, the order of assessment will be time barred u/s. 153 of the Act.
9. Apart from that it is settled law that the revised return can be filed only if there is an omission or wrong statement in the original return. In the case of CIT v. Andhra Cotton Mills Ltd. (219 ITR 404)(AP), the Andhra Pradesh High Court held that in the original return, the profit & loss account containing the provision for depreciation was filed. Subsequently, the claim of depreciation was withdrawn by filing a revised return u/s. 139(5) of the Act. The Hon'ble High Court held that such revised return was not a valid return since there was no omission or wrong statement in the original return. In the present case also, we find that a revised return was filed by the assessee pursuant to the survey as instructed by the revenue authorities. The assessee has been claiming deduction u/s. 80-IA since the financial year 1997-98 onwards and it was being allowed. There is no reasoned order passed by the AO in any of the years on merit of the claim regarding section 80-IA of the Act. In view of the aforesaid circumstances, we hold that the revised return was not a valid return since the same is already time barred as noted above. Consequently, the order of assessment framed by the AO on the basis of such revised return cannot be sustained in law. Hence the same is quashed.
20. The first appellate authority further analysed whether the revised return filed on 22-03-2004 by the assessee withdrawing the claim of deduction u/s 80-IA was valid one. Further, whether the assessment made on the basis of the revised return disallowing deduction u/s 80-IA was justified. In this regard, the stand of the assessee is that during the course of survey assessee was advised by the survey party accordingly, the assessee filed revised return and withdrew claim of deduction u/s 80-IA. The revised return filed on 22- 03-2004 is an invalid return, because same was filed beyond the time prescribed u/s 139(5). The disallowance made on the basis of the revised return is not justified, because the same was time barred. Under these facts and circumstances and following the decision of the Hon'ble ITAT in the appellant's own case for the assessment year 2001- 02 vide ITA No.116(B)/2006 dated 21-09-2007 discussed above, the CIT(A) was justified to hold that the deduction u/s 80-IA amounting to Rs.30,13,530/- has to be allowed because the Assessing Officer cannot pass assessment order on the basis of the revised return, which is barred by limitation. Accordingly, the disallowance in question were rightly cancelled. We uphold the same. Similar is the situation with regards to action in other year, wherein response to notice u/s 153A of Act deduction u/s 801A were disallowed in other years.