2021 (11) TMI 569 - AT - Income Tax

Non furnishing of return within time allotted - benefit u/s. 139(5) - whether the assessee s claim can be admitted by the revenue authorities without filing revised return or whether additional ground can be raised or not? - HELD THAT - The decision in the case of CIT vs. Pruthvi Brokers and shareholders 2012 (7) TMI 158 - BOMBAY HIGH COURT mandates that assessee s claim should be considered and the decision should be taken as per law. We further note that Hon ble Supreme Court in the case of Goetze (India) Limited 2006 (3) TMI 75 - SUPREME COURT has expounded that the decision in that case would not impinge upon the powers upon the ITAT to consider assessee s claim otherwise than by revised return - we remit the issue to the file of the AO and AO is directed to considered the claim of the assessee and pass an order as per law after giving the assessee proper opportunity of being heard. Assessee appeal is allowed for statistical purpose.

Summary

Issues:
1. Addition to Long Term Capital Gain by Rs. 16,30,302/-

Analysis:

Issue 1: Addition to Long Term Capital Gain by Rs. 16,30,302/-
The appeal pertains to the assessment year 2013-14 and challenges the order of the Commissioner of Income Tax (Appeals) confirming the assessment of Long-Term Capital Gain. The appellant contested the addition of Rs. 16,30,302/-, arguing that the correct fair value of cost was inadvertently considered at a wrong amount in the return of income. The appellant also highlighted the quasi-judicial nature of the Assessing Officer's power and cited a circular from the Central Board of Direct Taxes (CBDT) to support their claim. The appellant further contended that the revised computation of Long-term Capital Gain was not considered by the authorities, emphasizing that it was a correction rather than a new claim of deduction.

The Commissioner of Income Tax (Appeals) upheld the original assessment, citing the appellant's delayed payment of tax and late filing of the return as reasons for precluding the filing of a revised return under section 139(5) of the Income Tax Act. The Commissioner referred to relevant case law to support the decision, emphasizing that the legislative intent behind section 139(5) was to limit the benefits of filing a revised return to those who filed within the specified time frames of section 139(1) and (2).

Upon appeal, the ITAT Mumbai considered the issue and noted that the crux of the matter was not the applicability of section 139(5) but rather whether the appellant's claim could be admitted without a revised return. Citing precedents, including a decision of the Hon'ble Bombay High Court and the Supreme Court, the ITAT directed the Assessing Officer to reconsider the appellant's claim and make a decision in accordance with the law, granting the appellant a proper opportunity to be heard. Consequently, the ITAT allowed the appeal for statistical purposes, remitting the issue back to the Assessing Officer for fresh consideration.

In conclusion, the ITAT Mumbai's judgment focused on the procedural aspect of admitting the appellant's claim without a revised return, emphasizing the need for the revenue authorities to consider the claim in line with legal principles and precedents.