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TMI Blog2014 (12) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... on of issuance of notice has therefore to be calculated from the date of filing of the revised return of income - the CIT(A) has taken as if the original return was filed u/s.139(1) of the Act but the contention of the assessee is that the original return was filed u/s. 139(4) of the Act and such return cannot be revised u/s.139(5) of the Act – assessee rightly relied upon CIT vs. Panorama Builders (P.) Ltd. [2005 (4) TMI 50 - GUJARAT High Court] wherein it has been held that the section 292BB does not apply to issuance of notice, neither it cures the defect or enlarges statutory period where a mandatory notice under section 143(2) is required to be issued within limitation fixed under the Act - assessee contended that the return was filed u/s.139(4) of the Act as the same neither was furnished during the period prescribed u/s.139(1) nor was furnished in pursuance of the notice issued u/s.142(1) of the Act - It is also not coming out from the record whether any notice u/s.142(1) of the Act was issued in pursuance thereof the assessee furnished the return which was later on revised vide revised return dated 24/10/2008 – thus, the matter is remitted back to the CIT(A) for fresh adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case, the learned CIT(A) ought to have upheld the order of the Assessing Officer. [4] It is, therefore, prayed that the order of the CIT(A) may be set aside and that of Assessing Officer may be restored to the above extent. 2.1. Briefly stated facts are that the assessee filed his return of income declaring total income at ₹ 1,74,687/- and also claimed Long Term Capital Gain (LTCG) of ₹ 21,43,843/- on sale of land and after claiming deduction u/s.54 54EC of the Income Tax Act,1961 (hereinafter referred to as the Act ). The taxable amount was shown at NIL. Thereafter, the assessee filed a revised return on 24/10/2008. In the said return, sale consideration was shown as per the valuation by the stamp duty authority at ₹ 84,16,870/- as against the value as per sale-deed of ₹ 44,55,990/-. The assessee also adopted the cost of acquisition at ₹ 14,32,000/- in place of ₹ 4,45,500/- as shown in the original return. The Assessing Officer (AO in short) did not accept the claim of the assessee and made addition under the head Capital Gain amounting to ₹ 61,04,725/- in respect of the LTCG and also disallowed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of report prepared as per law. 4.1. We have heard the rival submissions, perused the material available on record and gone through the orders of the authorities below. We find that the ld.CIT(A) has given a direction in para-3.2 of his order as under:- 3.2. Upon due consideration of the appellant s reply, I find that the revised return has been filed within the limitation period and, therefore, is a valid return. The Assessing Officer has also not given any reason as to why the valuation adopted as on 01.4.1981 by the registered valuer is not acceptable. I, therefore, direct the Assessing Officer to take the value of the property as on 01.4.1981, which option has been exercised by the appellant, at the value taken by the registered valuer and to also take the indexation f the value of the property as on 01.4.1981, as determined in the registered valuer s report and to re-compute the capital gains on the property as well as appellant s share in the property as per the registered valuer s report. Part(a) (b) of the second ground of appeal is, therefore, allowed as per the above directions. Part (c) of the second ground of appeal is against rejection of claim u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest u/s.234B of the Act. 5. The appellant craves leave to add, alter, delete or modify and ground of appeal. 6.1. The first ground in the cross-objection filed by the assessee is against rejection of the ground taken in appeal that the assessment is barred by limitation and bad in law. 6.2. The ld.counsel for the assessee submitted that the original return was filed under the provisions of section 139(4) of the Act and not u/s.139(1) of the Act. He submitted that the original return was filed u/s.139(4) of the Act cannot be revised u/s.139(5). In support of this contention, he relied on the judgement of Hon ble Rajasthan High Court rendered in the case of Vimalchand vs. CIT reported at (1985) 23 Taxman 236 (Raj.). He submitted that the assessment proceedings were initiated with regard to the revised return. He submitted that the case of the assessee was selected for scrutiny assessment and the assessment was framed with regard to the revised return filed on 24/10/2008. He submitted that the original return was filed on 29/05/2008, whereas prescribed dated of filing of such return u/s.139(1) of the act was 31.7.2006. He submitted that the assessment ought to have been fra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn whether showing either a profit or loss can be filed under s. 22(1) or s. 22(3) of the Act of 1922. In the facts and circumstances of that case it was held that the subsequent return filed by the assessee was a valid return under s. 139(4) and the assessment made thereunder was within the prescribed time under s. 153. Mst. Zulekha Begum's case (supra) was followed in Kumar Jagdish Chandra Sinha vs. CIT (supra) and dissent was expressed with Siddhartha Publications (P) Ltd. vs. CIT (1981) 129 ITR 603 (Del) [sic This should be O.P. Malhotra v.s CIT (1981) 129 ITR 379 (Del) : TC9R.435 Ed.]. In that case for the asst. yr. 1964-65 the assessee did not file his return within time specified in s. 139(1) nor was a notice issued to him under s. 139(2). He filed a voluntary return on 13th Aug., 1964 and revised return on 18th Feb., 1969. Similarly for the asst. yr. 1965-66 he filed voluntary return on 17th Dec., 1965 and a revised return on 17th July, 1969. The assessment for 1964-65 was completed on 15th Jan., 1970. The assessment for the year 1965-66 was completed on 6th July, 1970. Penalty proceedings were initiated. It was contended that the revised returns were invalid; that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the order. It is also not coming out from the record whether any notice u/s.142(1) of the Act was issued in pursuance thereof the assessee furnished the return which was later on revised vide revised return dated 24/10/2008. The revenue has not placed any material on record with regard to the prescribed date for filing the return in the AY 2007-08 u/s.139(1) of the Act and it has also not been placed on record whether any notice u/s.142(1) of the Act was issued in pursuance thereof the assessee filed return on 25/05/2008. These material facts are required to be verified, therefore this issue is restored back to the file of ld.CIT(A) for decision afresh in accordance with law. Thus, this ground of assessee s appeal is allowed for statistical purposes. 8. Apropos to ground No.2, the ld.counsel for the assessee submitted that the assessee had claimed u/s.54 in respect of the investment made in a residential house on 25/08/2006 within one year from the transfer of original asset. It is submitted that the land sold was a residential land, therefore the assessee was entitled deduction u/s.54/54F of the Act. 8.1. On the contrary, the ld.Sr.DR supported the orders of the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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