AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2011 (12) TMI 230
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....s conceived that the same shall be done through agencies and instrumentality of the State, both in the Centre as well as the State through non-banking financial companies. In furtherance of such a policy, the State Government through its Housing and Urban Development Department decided to promote and float a Public Limited Company in the name and style of Orissa Rural Housing Development Corporation Ltd. and accordingly the petitioner Company was incorporated on 19.08.1994 under the Companies Act, 1956. The authorized share capital was Rs.50 crores divided into equity share of Rs.10 each and there was redeemable preference share of Rs.100/- each for Rs.10.0 crores whereas share capital was Rs.48,16,00,000/- which was paid entirely by the State of Orissa. 3. The petitioner carries on the business of a non-banking financial institution. To carry on its business, the petitioner borrows and lends money under various schemes, either on its own approval or concurrence from the Government. The petitioner maintains details of account for the purpose of Income Tax. It commenced its business during the year 1994-95 and follows mercantile system of accounting to recognize income and expenses....
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....by his order under Annexure-1A refusing to interfere with the assessment on the ground that the assessee after filing original return cannot make a fresh claim other than by way of filing a revised return. The petitioner on receiving the order of the Commissioner filed First Appeal on 26.03.2010 before the Commissioner of Income Tax (Appeals), who dismissed the appeal inter alia holding that the delay in filing the appeal is not condonable and that the appeal is not maintainable as the appellant has waived its right to appeal by going for a revision under Section 264 of the Act. The C.I.T. (Appeal) further held that the order of the Assessing Officer against which an appeal is sought to be filed has since merged with the order passed under Section 264 of the I.T. Act by the Commissioner of Income Tax no appeal before him can lie against the order passed by the learned CIT. Hence, the present writ petition. 6. Mr. B.K. Mahanti, learned Senior Advocate appearing on behalf of the petitioner submitted that learned Assessing Officer has committed an error by not considering the revised statement of income filed before him on 08.12.2001 while passing the order of assessment. At the time....
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.... account as informed by its bankers, the SBI, Union Bank of India and UCO Bank. Unless there is a direction of this Court, the petitioner would not get the refund of amount collected by attachment. The petitioner has no real income and it is liable to pay back the amount borrowed from HUDCO. 8. Mr.A.K.Mohapatra, learned Senior Standing Counsel appearing on behalf of the Income Tax Department submitted that there is no infirmity or illegality in the orders passed by the Assessing Officer under Annexure-1, the order passed by the Commissioner of Income Tax dated 11.03.2010 (Annexure-1A) as well as order of the Commissioner of Income Tax (Appeals) dated 15.09.2010 (Annexure-1B) for the reasons stated in the respective orders. Placing reliance on the judgment of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. v. Commissioner of Income Tax, [2006] 284 ITR 323 (SC), it is submitted that the Assessing Officer has no power to entertain a fresh claim made by the Assessee after filing of the original return other than by filing of a revised return. Supporting the order of the Commissioner of Income Tax (Appeals), Mr. Mohapatra submitted that the petitioner having invoked the pr....
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....t with together. 11. The undisputed facts are that the petitioner assessee follows mercantile system of accounting and has filed its return of income for the financial year 2005-06 on 30.11.2006. Subsequently, on 08.12.2008 the petitioner filed a petition before opposite party no.1-Assessing Officer with a revised statement of income stating therein that at the time of filing of returns, the statutory audit was not completed. The returns were filed on the basis of the provisional account and interest on NPA was wrongly recognized in contravention of NHB guidelines and it also claimed expenses in contravention of Section 43D of the I.T. Act. On the basis of the original return filed on 30.11.2006 notice was issued on 10.10.2007 under Section 143(2) of the I.T. Act. Notice under Section 142(1) dated 03.10.2008 was also issued to the petitioner to produce the documents/accounts. Assessment was completed under Section 143(3) on the basis of the original return on 23.12.2008. The petitioner filed a revised return by registered post on 07.01.2011. 12. It is quite possible and natural that in submitting a return, some bona fide omission or wrong statement may have occurred. In order to ....
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....d provision of said section becomes redundant. During the relevant time, as the assessee had maintained the accounts on mercantile basis, it was bound to file the returns on that basis. 16. The Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra), held that the Assessing Officer has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return. 17. Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim "Expressio unius est exclusion alteris", meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (See Taylor v. Taylor, [1876] 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma; and Indian Bank's Association v. Devkala Consultancy Service, AIR 2004 SC 2615). 18. Therefore, we are of the view that the....
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....furnish in writing and verify in the prescribed manner on such points or matter as the Assessing Officer may require. Thus, as stated above, Section 142(1), inter alia, empowers the Assessing Officer to issue notice under Section 142(1) for production of accounts and/or documents for the purpose of making assessment. 22. At this juncture, it is necessary to reproduce Section 143(2) of the I.T. Act: "143. Assessment ** ** ** (2) Where a return has been furnished under Section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Officer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible, serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and required him, on a date to be specified therein to produce, or cause to be produced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim: Provided that no notice under this clause shall be served on the assessee on or after the 1st day of June, 2003, (ii) notwiths....
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....section in the following cases:- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal, the assessee has not waived his rights of appeal." ** ** ** [Emphasis supplied] 27. Thus, the assessee can invoke the provisions of Section 264 of the I.T. Act only after the time for filing the appeal is expired or after waiver of his right of appeal. Section 264 of the I.T. Act is an alternative remedy available to the petitioner-assessee, who does not want to avail remedy by way of appeal. Thus, remedy available under section 264 of the I.T. Act is an alternative remedy and not an additional remedy and the assessee is not permitted to pursue both the remedies either simultaneously or one after another. In the instant case, it is only after rejection of the petition under Section 264 by the Commissioner of Income Tax, the assessee has filed appeal, which right as stated above, by approaching the Commissioner....