9911796707
TMI Blog2016 (12) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... ties to do so, we deem it fit and proper to set-aside the order of the CIT(A) and direct the Assessing Officer to take cognizance of the third revised return filed on 13/10/2005 and consider the plea of the assessee relating to the unpaid Provision of leave encashment on merits having regard to the material that the assessee seek to rely before him. - ITA No. 3745/Mum/2013, ITA No.5100/Mum/2013, ITA No. 4788/Mum/2013 - - - Dated:- 25-11-2016 - Shri G. S. Pannu, Accountant Member And Shri Amarjit Singh, Judicial Member Assessee by : Shri Mayur Kisnadwala Revenue by : Shri Pradeep Kumar Singh ORDER Per G. S. Pannu, A. M The captioned are three appeals, which relate to the same assessee involving certain common issues, therefore, they have been clubbed and heard together and a consolidated order is being passed for the sake of convenience and brevity. 2. First we may take up the appeal in ITA No.3745/Mum/2013, which is directed against an order passed by CIT(A)-22, Mumbai dated 25/02/2013, which in turn, arises out of an order passed by the Assessing Officer under section 143(3) of the Income Tax Act, 1961 (in short the Act ) dated 14/12/2006. The assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 13/10/2005, wherein the total income was scaled down to ₹ 3,87,76,433/-. 3.1 Before the Assessing Officer, assessee pointed out that the income of ₹ 5,83,45,984/- declared in the second revised return was required to be corrected because inadvertently, the unpaid Provision for leave encashment was reported at ₹ 2,14,35,533/- instead of correct figure of ₹ 18,64,982/-, thereby resulting excess add-back to the income of a sum of ₹ 1,95,69,551/-. The claim of the assessee was that the correct income computable was ₹ 3,82,76,433/- instead of ₹ 5,83,45,984/- declared in the second revised return and, hence, the filing of the third revised return on 13/10/2205. The Assessing Officer did not accept the plea of the assessee on the ground that in the Tax Audit Report filed under section 44AB of the Act the amount reported on account of unpaid Provision for leave encashment was ₹ 2,14,35,533/-. In view of the said reason, the Assessing Officer did not take into consideration the income determined in the third revised return filed on 13/10/2005. 4. In appeal before CIT(A), assessee pointed out that the action of the Assessing Officer was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act is within the prescribed period, and the revised return has been filed within the period prescribed in section 139(5) of the Act, then the Assessing Officer is bound to take cognizance of that return as if it has been originally filed under section 139(1) of the Act. No doubt, revision of a return is prescribed under section 139(5) of the Act in cases where assessee discovers any omission or any wrong statement in the original return. So however, whether or not there is an omission or a wrong statement in the original return can only be verified by the Assessing Officer after he takes into consideration the revised return so filed. In the present case, the discussion by the Assessing Officer in para-5 of the assessment order and the computation of total income in para-6 reveal a somewhat contradictory approach. While in para-6 of the assessment order the Assessing Officer has refused to take cognizance of the third revised return filed on 13/10/2005 while computing the total income whereas in para-5 he has rejected the plea of the assessee that there was any excess add-back of unpaid Provision for leave encashment in second revised return filed on 24/08/2005. Ostensibly, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to rely before him. Needless to mention, the Assessing Officer shall allow the assessee a reasonably opportunity of being heard and only thereafter shall pass an order afresh on the aforesaid limited aspect, as per law. Thus, the appeal of the assessee is allowed, as above. 8. Now we may take up the cross-appeal in ITA No.4788/Mum/2013 and ITA No.5100/Mum/2013 which are directed against an order passed by CIT(A)-22, Mumbai dated 08/04/2013, which in turn, arise out of an order passed by the Assessing Officer under section 143(3) r.w.s. 263 of the Income Tax Act, 1961 (in short the Act ) dated 24/12/2006. The Grounds of appeal raised by the assessee as well as Revenue read as under:- Assessee s Grounds of Appeal:- Aggrieved by the order of the Assessing Officer (A.O) as confirmed by Commission of Income Tax(Appeals) [CIT(A)], your appellant prefers an appeal against the same on following grounds, which, it is prayed, may be considered without prejudice to one another. 1. On the facts and circumstances of the case and in law, the CIT(A) erred in confirming the addition under section. 145A of ₹ 1,34,88,803/- made by the A.O. Revenue s Grounds of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA No.3745/Mum/2013 The Ld. Representative for the assessee pointed out that if assessee were to succeed in the earlier appeal, the dispute in the present appeal would be rendered infructuous as the computable total income would stand reduced and assessee would have no grievance left. We have upheld the plea of the assessee in principle in the appeal in ITA No.3745/Mum/2013 and also in the cross-appeal by the Revenue in ITA No.5100/Mum/2013 that the Assessing Officer is to take cognisance of the third revised return filed on 13/10/2015. In this appeal, the matter relating to determination of total income is being remanded back to the file of the Assessing Officer. Accordingly, the Assessing Officer would consider afresh the issue relating to the addition under section 145A of the Act of ₹ 1,34,88,803/- in the ensuring proceedings after considering the explanation of the assessee, as per law. Accordingly, for statistical purposes the appeal of the assessee in ITA No.4788/Mum/2013 is also allowed, as above. 12. In the result, whereas the appeals of the assessee are allowed, that of Revenue is dismissed. Order pronounced in the open court on 25/11/2016. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
