Indian Kanoon - Search engine for Indian Law

the assessment order. The AO declined to accept the said revised return as a valid return on the ground that the same is beyond the limit prescribed under section 139(5) of the IT Act. However, we find that the revised return filed on 11.03.2011 is well within the period of limitation. We have also considered the aspect of the time period allowed for filing the original return of income under section 139(1) of the Act and found that the assessee was liable to get its accounts audited and the original return of income filed by the assessee on 31.08.2009 was also within the limitation provided under section 139(1) of the Act. In cases where the assessee's accounts are required to be audited, the limitation for filing the original return of income under section 139 of the Act was 30th September, 2009. In the original return of income assessee has duly mentioned the requirement of accounts to be audited and to file tax audit report. Hence this finding of the AO that the revised return is barred by limitation is contrary to the facts as well as law. Though the assessee did not raise the specific ground before the ld. CIT (A), however, we find that when this issue was raised by the assessee before the AO and all relevant facts as well as material required for adjudication of this issue are already available on the assessment record, then the legal issue which goes to the root of the matter can be raised at this stage even if the same was not raised before the ld. CIT (A). Thus when the assessee has raised this issue before the AO then not raising the same before the ld. CIT (A), will not debar the assessee from raising such a legal issue before the Tribunal. The AO has reopened the assessment by recording the reasons as under :-

Thus it is clear that the assessment was reopened on the basis of the sale transactions of Rs. 3,14,490/- which were found entered in the Dasti books and not in the regular books of account as detected during the course of survey proceedings. We note that this amount was surrendered by the assessee to tax during the course of survey proceedings and subsequently the assessee has filed the revised return of income on 11.03.2011 which was valid as within the period of limitation and, therefore, at the time of reopening of the assessment and recording the reasons, the AO was having no reason to believe that the said income has escaped assessment when it was already offered to tax in the revised return of income filed on 11.03.2011. Hence the reasons recorded on 28th March, 2013 and the notice issued under section 148 are based on incorrect material facts and rather without application of mind on the relevant material available with the AO. Once the ITA Nos. 184, 185/JP/2015 & ITA No. 439/JP/2016 Late Shri Bheem Sen Batra, Alwar.