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TMI Blog2013 (2) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... der section 144 of the Income-tax Act, 1961, on the basis of the original return filed on January 31, 1997, and not on the basis of the revised return filed on March 30, 1998 – Order passed by the the Tribunal set aside – Appeal filed by Department allowed – In favour of revenue. - ITA NO 36/05 - - - Dated:- 22-7-2011 - Dr. Satish Chandra J.- For Appellant D.D. Chopra. For Respondent Wasiqaddin Ahmad. Judgment: The present appeal is filed under section 260A of the Income-tax Act, 1961,against the order dated December 9, 2004, passed by the Income-tax Appellate Tribunal, Lucknow, in I. T. A. No. 189/Alld/2000 ; I. T. A. No. 254/Alld/2000 and CO No.17/Luc/2003 for the assessment year 1996-97 whereby, the Tribunal, vide its impugned order has admitted the following additional ground and allowed relief to the assessee accordingly : "That the learned Assessing Officer is not justified in passing the order of intimation under section 143(1)(a) of the Income-tax Act subsequent to issuance of notice under section 143(2) of the Income-tax Act for regular assessment." 2. The Tribunal in its order dated December 9, 2004, observed that : "The learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed return was processed under section 143(1)(a) of the Act on December 14,1998,on a total income of Rs. 9,86,85,952 by treating the status of the assessee as an association of persons under section 185 and also making certain prima facie adjustment in the return of negative income. 5. Not being satisfied, the assessee has filed an appeal before the Com-missioner of Income-tax (Appeals)-II, Lucknow, who has allowed the appeal, vide its order dated December 13, 1999, for the assessment year under consideration.Being aggrieved, both the parties have filed appeals before the Tribunal, where the Tribunal has admitted the abovementioned additional ground and allowed the claim of the assessee. 6. With this background, Sri D. D. Chopra, learned counsel for the appel-lant, submits that the Tribunal has not appreciated the decision of the hon'ble Supreme Court in the case of CIT v. Gujarat Electricity Board [2003] 260 ITR 84 (SC), which is distinguishable from the facts of the case of the assessee. In the case of the assessee, notice under section 143(2) was issued by the Assessing Officer against the original return and not after filing of the revised return. 7. In the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submits that the revised return was a non est return as the return can be revised only if the original return has been filed under section 139(1) and not under section 139(4) of the Act. In the instant case, the revised return was filed on March 30, 1998, which was processed under section 143(1)(a) of the Act. The regular assessment order was passed on April 23, 1999. 12. According to the learned counsel for the assessee, as per the scheme of the assessment with effect from April 1,1989, summary assessment has been provided under section 143(1)(a) of the Act, wherein returns are processed and prima facie adjustment can be made for working out the tax liability, if any. Such a prima facie adjustment are strictly circumscribed by section 143(1)(a). For this purpose, he relied on the ratio laid down in the following cases : I. Gujarat Poly-Avx Electronics Ltd. v. Deputy CIT (Assessment) reported in [1996] 222 ITR 140 (Guj) ; II. Lakhanpal National Ltd. v. Deputy CIT reported in [1996] 222 ITR 151 (Guj) ; and III. Peico Electronics and Electricals Ltd. v. Deputy CIT reported in [1999] 236 ITR 702 (Cal). 13.According to the learned counsel for the assessee, the Assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for correcting a return already filed or making amendments therein, it would not mean that he has filed a revised return. It will still retain the character of an original return but once a revised return is filed, the original return must be taken to have been with-drawn and to have been substituted by a fresh return for the purpose of assessment. But, in the instant case, revised return was filed by the asses-see by showing the negative income. 19.When the facts of the case are neither clear nor discussed by the Tri-bunal, then, in our considered view, the Tribunal having permitted the assessee to raise additional grounds treating it to be a legal ground in appeal for the first time, should have set aside the order of the Com-missioner of Income-tax (Appeals) and remanded the case to him for deciding the appeal afresh, rather than to decide the same on the merits for the first time by itself. Had the case been remanded by the Tribunal, the Commissioner of Income-tax (Appeals) would have been in a posi-tion to examine the issue for the first time in relation to the additional ground, which he did not decide for want of any attack initially in the first round. It cannot be disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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