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TMI Blog2022 (12) TMI 938X X X X Extracts X X X X X X X X Extracts X X X X ..... e in this regard, claims that the impugned income is of a non-existent business, returned by mistake, with his balance-sheet for the current year being in continuation of the closing balance-sheet for the immediately preceding year and, further, and similarly, the balance-sheet for the succeeding year also in agreement with that for that current year, so that all the three represent a continuum, even as additional income is only for the current year. This argument, surely valid and corroborative of his claim, made per submissions before the ld. CIT(A) do not find any mention in the impugned order. The matter, in view of the foregoing, is restored back to the file of the AO for adjudication afresh on merits and in accordance with law per a speaking order, after hearing the assessee, being also the mandate of sec. 154. Needless to add, the AO shall require the assessee to file all the required documents, which must be contemporaneous and proven, in support of his return of income. In this context we find on record (PB-1, pg. 9) a return for the current year reflecting the income claimed as correct, filed on 14/11/2018. How has the same been filed is not clear. Further, it may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be produced before the Assessing Officer (AO). 2.2 The return was processed u/s. 143(1), and tax liability worked out Rs. 5,81,215 (i.e., at the returned income of Rs. 23,67,620) vide Intimation dated 09/5/2013, raising thus a demand for Rs. 4,34,133 (Rs. 5,81,215 1,47,082), i.e. the corresponding to the income differential of Rs. 14,04,960 between the income returned and that on which the tax had been worked out and returned. The assessee filed a rectification electronically on 03/12/2015, with a view to reduce this income by Rs. 14,04,960, stated to have been returned by mistake by the Chartered Accountant (CA), Shri Rohit Jain, filing the return, being the income deemed u/s. 44AD of some other person. The same, in view of system constraints, was not accepted. The tax liability of Rs. 5,81,215 (including cess at Rs. 16,929), as against the admitted tax at Rs. 1,47,082, was accordingly reiterated vide order u/s. 154 dated 03/5/2016. The assessee is in second appeal on being unsuccessful in first appeal before the ld. CIT(A). 3. Before us, the assessee relied on his returns and balance-sheets for AYs. 2010-11 2012-13, i.e., the immediately preceding and succeeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was prevented in filing the revised return (u/s. 139(5)) in view of the receipt of Intimation u/s. 143(1)(a) after the time limit u/s. 139(5), the same is neither here nor there. This is as the Intimation correctly processes the return as furnished. If the same indeed bore any additional income by mistake, that is something which was or could only be known only to the assessee; the AO would not know of it, unless of course there was something on record to exhibit the same; none of which stands specified. The same in any case would not operate to extend the time limitation u/s. 139(5). Recourse to s. 139(5) stands thus closed for the assessee which, where so, would have pre-empted, nay, aborted the controversy that now confronts us. 4.2 The assessee, nevertheless, has made an application u/s. 154; in fact, on several occasions, as apparent from the information in its respect on his incometax portal, placed on record by Shri Bardia. Only one, i.e., the instant case, as confirmed by him, however, is being pursued in the appellate proceedings. 4.3 The Revenue s stand in rejecting the assessee s application u/s. 154, since confirmed by the first appellate authority, is that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ord, which must be satisfied if the assessee s claim for withdrawal of income of Rs. 14.05 lacs is to be rectified u/s. 154, are so or not. This, it would be noted, is also the purport of the decision in CIT v. K.N. Oil Industries [1983] 142 ITR 13 (MP), where, in the context of deduction u/s. 35B, it was held that if it is apparent from record that the assessee was entitled to relief admissible u/s. 35B, that relief can be granted to him u/s. 154 by rectifying the assessment even though the relief under that section had not been claimed by the assessee in the original assessment proceedings. This, it would be noted, is also the purport of the decisions by the Tribunal relied upon by the Revenue (supra). 4.5 We may next examine the assessee s application for rectification u/s. 154 in light of the law as explained. There is nothing on record to show that the income of Rs. 14.05 lacs is not the assessee s income. True, the record would extend to the assessee s return for the immediately preceding year as well ( Maharana Mills (P.) Ltd. (supra); Anchor Pressings (P.) Ltd. (supra)), which is claimed not to be bear the said income. There is, however, no reference thereto in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstant case would be required to decide as to whether the mistake in the return furnished by the assessee is, or lies, as claimed by him, in disclosing mistakenly additional income (Rs. 14.05 lacs) or, as inferred by the Revenue, in computing his tax liability incorrectly, i.e., corresponding to the additional tax liability on the said additional income. That the tax amount computed agrees with the income claimed as returned incorrectly, makes it an either or situation, so that, as afore-stated, either could be correct, and the same has to be determined in the conspectus of the case. This is also the purport of the recent decision by this Bench of the Tribunal in Anand Mining Corporation v. Asst. CIT (in ITA 103 of 2018 CO 02 of 2018, dated 21/11/2022). It would be a different matter indeed, we may hasten to add, where the assessee, though admits tax thereon, yet claims u/s. 154 of having returned income in excess. However, once this is not the case, and the tax differential matches that on the income claimed as returned mistakenly, it would be, without anything more, as much liable to be regarded as a mistake as the assessee having returned the income correctly, and not comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be necessarily resolved for a valid assessment; the figure 10 in the example representing the other income. It is, this, then, that has to be determined on the basis of the material on record, and in the conspectus of the case. Both the mistakes are possible, and it is this consideration that shall exclude one; rather, eliminate one, which the Revenue has sub-consciously and presumptuously has. 4.8 Though it may be, in view of our adjudication, not necessary to dilate upon the decisions relied upon by the assessee, we may yet for the sake of completeness of our order, do so. Each decision rests on its own facts. In Mandira D. Vakharia (supra), the assessee had already made a claim (u/ss. 80HHE 80GG) per her return of income. The only thing required was the filing of the audit report (certificate), as required by the provision, which the Board Circular itself professed as liable to be taken into account u/s. 154 in view of the nature of s.143(1) proceedings. Board circulars, it is trite law, are binding on the Revenue Officers ( Hero Cycles Pvt. Ltd . (supra)). In Hasumatiben Dahyabhai Mistry (supra), however, the claim had not been made per the return of income, so that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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