Commissioner of Income-tax Karnataka (Central) Bangalore, Controlling Office of Central Circle, Panaji v. Mukhtar Minerals Private Limited
[Citation -2020-LL-0928-46]

Citation 2020-LL-0928-46
Appellant Name Commissioner of Income-tax Karnataka (Central) Bangalore, Controlling Office of Central Circle, Panaji
Respondent Name Mukhtar Minerals Private Limited
Court HIGH COURT OF BOMBAY AT GOA
Relevant Act Income-tax
Date of Order 28/09/2020
Assessment Year 2007-08
Judgment View Judgment
Keyword Tags substantial question of law • barred by limitation • assessment order • original return • revised return
Bot Summary: Thereafter, the Assessee addressed a letter dated 28/12/2009, to the Assessing Officer, urging that the revised return was filed only to cooperate with the Revenue. Ms. Razaq, the learned Standing Counsel for the Appellant submits that the ITAT having held that the revised return was filed beyond the prescribed period of limitation, was not justified in addressing the issue of disallowances and thereby recording the finding of fact as if, it were the Assessing Authority. According to us, in the facts and circumstances of the present case, the ITAT was justified in holding that the revised return was filed by the Assessee beyond the prescribed period of limitation and the AO could not have proceeded to assess only the revised return or finalized the proceedings only on the basis of the revised return. The ITAT, in this case, after holding that the revised return was filed beyond the prescribed period of limitation, should have restored the original return before the AO and, thereafter, directed the AO to assess the original return in accordance with law. Consequent upon the ITAT's finding that the revised return was filed beyond the prescribed period of limitation, the matter is now remanded to the AO to assess the original return of the assessee, as expeditiously as possible, on its own merits and in accordance with law. The issue of evidentiary value or the impact of the revised return upon assessment of the original return is kept open to be decided by the AO, again on its own merits and in accordance with law. The AO, in assessing the original return, need not be influenced by the deletion of the disallowances by the ITAT, which portion of the ITAT's order we have already set aside.


1 Santosh IN HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO.26/2014 Commissioner of Income Tax Karnataka (Central) Bangalore, Controlling Office of Central Circle, Panaji). .. Appellant. Versus M/s. Mukhtar Minerals Private Limited, having its office at G28, Phoenix Estate Gogol, Margao, Goa. . .. Respondent. Ms. Amira Abdul Razaq, Standing Counsel for Appellant. Mr. P. S. Rao, Advocate for Respondent. Coram : M.S. Sonak & Dama Seshadri Naidu, JJ. Dated : 28th September, 2020. ORAL JUDGMENT : (Per M.S. SONAK, J.) Heard Ms. Razaq, learned Standing Counsel for Appellant and Mr. P. Rao, learned Counsel for Respondent. 2. This Appeal was admitted on following substantial question of law : Whether on that facts and circumstances of case, Tribunal is right in law in accepting contentions of Assessee without giving opportunity to Assessing Officer by way of remand, particularly, when Assessee has withdrawn statement unsuccessfully without legal basis ? 2 3. In this case, Assessee, for Assessment Year 2007-08, filed return of income on 31/10/2007, declaring income of Rs.1,38,14,410/-. Thereafter, on 13/5/2009, Assessee filed revised return, disclosing income of Rs.5,33,14,420/-. Prior to this date, i.e. on 24/3/2009, survey was conducted in premises of Assessee. In course of such survey, Assessee offered to bring to tax income of Rs.3,50,00,000/- under various heads. It is case of Revenue that revised return was filed in pursuance of this offer. 4. Thereafter, Assessee addressed letter dated 28/12/2009, to Assessing Officer (AO), urging that revised return was filed only to cooperate with Revenue. However, it was pointed out that correct offer of income was reflected in original return itself and, therefore, it is only original return which may be assessed. 5. AO, by order dated 30/12/2009, rejected Assessee's contention and concluded assessment by accepting revised return filed. 6. Assessee appealed to Commissioner of Income Tax (CIT)(Appeals) which appeal was dismissed by order dated 12/12/2012. Therefore, Assessee instituted appeal bearing 3 ITA No.17/PNJ/2013 before Income Tax Appellate Tribunal (ITAT), questioning assessment order dated 30/12/2009 and order of CIT (Appeals) dated 12/12/2012. 7. ITAT, by impugned order dated 28/6/2013, held that revised return filed by Assessee was barred by limitation and, therefore same could not have been acted upon by AO. ITAT went even further and determined that disallowances were not justified and ordered deletion of same. It is against this later portion of ITAT's order that Revenue has instituted present appeal, in which aforesaid substantial question of law came to be formulated. 8. Ms. Razaq, learned Standing Counsel for Appellant submits that ITAT having held that revised return was filed beyond prescribed period of limitation, was not justified in addressing issue of disallowances and thereby recording finding of fact as if, it were Assessing Authority. She submits that ITAT has thus deprived AO opportunity of examining original return filed by Assessee, as also evidentiary impact of revised return upon same. For these reasons, she submits that substantial question of law, as framed, is liable to be answered in favour of Revenue and against Assessee. 9. Mr. Rao, learned Counsel for Assessee defends 4 impugned order on basis of reasoning reflected therein. He submits that there is no dispute in facts and circumstances of present case that revised return was filed beyond prescribed period of limitation and therefore, AO exceeded his jurisdiction in finalizing return on basis of revised return. He pointed out that ITAT was justified itself in holding that disallowances were required to be deleted. He submitted that findings of ITAT are based upon material on record and this is not case where ITAT can be said to have exceeded jurisdiction vested in it. For all these reasons, he submits that this appeal is liable to be dismissed. 10. According to us, in facts and circumstances of present case, ITAT was justified in holding that revised return was filed by Assessee beyond prescribed period of limitation and, therefore, AO could not have proceeded to assess only revised return or finalized proceedings only on basis of revised return. However, after having reached to this conclusion, we feel that ITAT was not justified in going into issue of disallowances before AO had opportunity of assessing original return and determined amount which was liable to be brought to tax. This later exercise involved examination of factual matrix which, in facts and circumstances of present case, ITAT should not have undertaken as if it were authority of first instance. 5 11. ITAT, in this case, after holding that revised return was filed beyond prescribed period of limitation, should have restored original return before AO and, thereafter, directed AO to assess original return in accordance with law. This would have afforded both, Revenue as well as Assessee, effective opportunity to putforth their respective versions on issue of disallowances which, normally arise in course of such assessment proceedings. 12. Accordingly, impugned order made by ITAT, to extent it purports to delete various disallowances or to finalise assessment, must be interfered with. This later portion of impugned order is, therefore, set aside. 13. Consequent upon ITAT's finding that revised return was filed beyond prescribed period of limitation, matter is now remanded to AO to assess original return of assessee, as expeditiously as possible, on its own merits and in accordance with law. 14. issue of evidentiary value or impact of revised return upon assessment of original return is, however, kept open to be decided by AO, again on its own merits and in accordance with law. 6 15. AO, in assessing original return, need not be influenced by deletion of disallowances by ITAT, which portion of ITAT's order we have already set aside. 16. substantial question of law is answered in favour of Revenue and against Assessee, subject, no doubt, to aforesaid observations. 17. This Appeal is, accordingly, allowed and disposed of in aforesaid terms. 18 In facts and circumstances of present case, there shall be no order as to costs. Dama Seshadri Naidu, J. M.S. Sonak, J. Commissioner of Income-tax Karnataka (Central) Bangalore, Controlling Office of Central Circle, Panaji v. Mukhtar Minerals Private Limited
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