9911796707
TMI Blog2019 (8) TMI 1120X X X X Extracts X X X X X X X X Extracts X X X X ..... . A perusal of the Assessment Order shows that no such approval has been taken. Deem it proper to restore the issue to the file of the AO with a direction to verify as to whether such approval has been taken and in case no such approval has been taken then the addition so made by the Assessing Officer and upheld by the CIT(A) stands deleted.The additional ground raised by the assessee is accordingly allowed. Revised return - AO alleged that assessee cannot take the advantage of provisions of section 139(5) by deliberately making the omission or wrong statement - HELD THAT:- It is not a deliberate omission but an inadvertent error. Further, there is no decision of the Hon ble Jurisdictional High Court on this issue. It is the settled proposition of law that when two views are possible on an issue, the view which is favourable to the assessee has to be followed. CIT(A) should not have upheld the action of the AO in not considering the revised return filed. I, therefore, set aside the order of the CIT(A) and direct the AO to consider the revised return as in accordance with law. The ground raised by the assessee is accordingly allowed. - ITA No.6695/Del/2018 - - - Dated:- 21 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 12.07.2017 submitted that Balance sheet and Tax Audit Report has been signed by the auditor on 31.07.2015. This was a clerical mistake while printing the balance sheet. The assessee was asked vide questionnaire dated 30.06.2017 and 19.09.2017 to furnish the sources to meet out the huge losses suffered by the assessee. The assessee in his reply submitted that loss to the extent of ₹ 13,60,000/- has been met by him from the income earned by him from consultancy portfolio business receipt shown by him in his return of income and balance from the loans from bank and his salary Income. From the details of consultancy charges so received by the assessee, the Assessing officer noted that the same has been received in cash from 101 persons and each amount is below ₹ 20,000/-. Rejecting the various explanation given by the assessee the Assessing Officer made addition of ₹ 13,60,000/- being the cash deposits made in the bank account u/s. 68 of the IT Act as unexplained cash deposit. 4. So far as the revised return is concerned, the Assessing Officer noted that the assessee has maintained two bank accounts one with State Bank of Hyderabad where his salary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 58,239/- earned during the year, therefore, the whole disallowance made is illegal, unsustainable and without application of mind. Ground No-3) All the above grounds are mutually exclusive and not linked with each other. The appellant reserves the right to add, alter, amend or withdraw any grounds of appeal either before or at the time of hearing of this appeal. 7. The assessee has also raised the following additional ground :- Because the action is being challenged on facts law for making addition of ₹ 13,60,000/- other than the issues for which assessee's case has been selected for limited scrutiny i.e. examination of commodity transaction Derivative (Future) transaction overlooking the board instruction in respect of Limited scrutiny. Therefore assessment order passed in violation of Board's instruction, which are binding upon the AO hence assessment order passed is bad in law void-abinitio. 8. After hearing both the sides and considering the fact that all material facts necessary for adjudication of the additional ground are available on record, the additional ground rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Mumbai Bench of the Tribunal in the case of Gilbarco Veeder Root India Pvt. Ltd. Vs. DCIT vide ITA No.2695/M/2017 order dated 07.09.2018 and various other decisions. So far as the merit of the case is concerned i.e. relating to deposit of cash and cheque in the bank account, he submitted that the assessee has filed the necessary details before the Assessing Officer and, therefore, the revenue authorities are not justified in not considering the same and making the addition. 11. The Ld. DR on the other hand heavily relied on the decision of the Assessing Officer and CIT(A). 12. I have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and CIT(A) and the paper book filed on behalf of the assessee. I have also considered the various decisions cited before me. I find the case of the assessee was selected for limited scrutiny to examine the issue of commodity transaction/ derivatives (futures) transactions as mentioned by the Assessing Officer in the body of the assessment order itself. However, the Assessing Officer in the instant case converted the limited scrutiny case to a fullfledged scrutiny case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nibhai Vs. CIT reported in 121 ITR 373 and in the case of CIT Vs. Dr. Kumari M. Dubey reported in 171 ITR 144. It is the submission of the Ld. Counsel for the assessee that non disclosure of loss claimed on shares was not willful or deliberate but inadvertent mistake and, therefore, in view of the decision of Hon ble Gujarat High Court in the case of PCIT Vs. Babu Bhai Ramanbhai Patel(supra) and the decision of Mumbai Bench of the Tribunal in the case of Gilbarco Veeder Root India Pvt. Ltd. Vs. DCIT (supra). The revised return has to be accepted. 15. I find the Hon ble Gujarat High Court in the case of Babu Bhai Ramanbhai Patel (supra) while deciding an identical issue has observed as under :- 3. So far as question no. [B] is concerned, brief facts are that for the assessment year 2005- 06, the assessee filed the return of income on 30.If .2005 under Section 139(1) of the Act declaring total income of ₹ 53,24,330/-. In such return, the assessee did not claim speculation loss of ₹ 69,93,450/-. Such return was, however, revised under Section 139(5) on 29.11.2006. The Assessing Officer disallowed the carry forward of the speculation loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver is earlier. 6. Sub-section (5) of Section 139, therefore, gives right to an assessee who has furnished a return under sub-section (1) or sub-section (4) to revise such return on discovery of any omission or a wrong statement. Such revised return, however, can be filed before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. This is precisely what the assessee did while exercising the right to revise the return. Sub-section (5) of Section 139 does not envisage a Situation whereupon revising the return if a case for loss arises which the assessee wishes to carry forward, the same would be impermissible. In terms, sub-section (5) of Section 139 allows the assessee to revise the return filed under subsection (1) or sub-section (4) as long as the time frame provided therein is adhered to and the requirement of the revised return has arisen on discovery of any omission or a wrong statement in the return originally filed. Accepting the contention of the revenue would amount to limiting the scope of revising the return already filed by the assessee flowing from sub-section (5). No suc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
