AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 179
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....itted and undisputed. The assessee-individual filed his return of income for the year on 29.09.2012, declaring nil income (copy on record). This was followed by a return on 21.10.2013 (copy of acknowledgment on record), again, at nil income, claiming a tax refund on account of tax deducted at source (TDS) at _ . 92,724; there being, as it appears, no change in the configuration of the income returned. Assessment u/s. 143(3) was framed on 25.03.2015 at a income of _ . 1,37,99,763/-. The assessee, in appeal, raised several grounds, challenging the additions made in assessment. Additional grounds were also raised, claiming that the impugned assessment is liable to be quashed as the 'original' return, filed on 29.09.2012, was not a return u/s. 139(1) but only a return u/s. 139(4), being filed after the due date of filing the return u/s. 139(1) i.e., on 31.07.2012 (Addl. Gd.1). Only a return filed u/s. 139(1) or that furnished in response to a notice u/s. 142(1), could be revised u/s. 139(5). The subsequent return filed on 21.10.2013 is, therefore, an invalid return. That being the case, no assessment u/s. 143(3) in its respect could be made. The ld. CIT(A), admitting the additional gro....
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.... counsel, that it is only in case of a 'working partner' that the due date of filing the return u/s. 139(1) gets extended to that of the partnership firm. The assessee, though a partner in a firm whose accounts are subject to audit u/s. 44AB of the Act, is not a working partner. The ld. Departmental Representative (DR) would, on the other hand, draw our attention to Gd. 5.3 of the Grounds of Appeal before the first appellate authority, which reads as under, whereby the assessee, who now denies to being a working partner, claims to be so, so that the return filed on 29.09.2012 was filed within the time allowed u/s. 139(1), i.e., 30.09.2012: '5.3 The learned AO has erred, in charging interest wrong by u/s. 234A, for a delay of one month, but however, since he is a working partner of a firm subject to tax audit, the return filed on 29.9.2012 was within due date.' (emphasis, supplied) The ld. counsel would, in rejoinder, submit that the assessee wishes to retract the statement of fact made per Gd. 5.3 before the ld. CIT(A). 4. We have heard the parties, and perused the material on record. Section 139(4) of the Act allows a person who has not furnished a return within the time al....
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....led the levy of interest u/s. 234A in-asmuch as he was a working partner, so that the due date for filing the return u/s. 139(1) in his case was 30.09.2012 and, accordingly, the return filed on 29.09.2012 was u/s. 139(1). The ld. CIT(A) could have answered the legal issue raised before him by the assessee only on the basis of the truth of the averments made in the assessment and appellate proceedings. Rather, any conflict or ambiguity on facts, relevant for the purpose, would oust the assessee's pleading of the said issue per legal grounds, raised for the first time before him. There is no question of retracting the Ground raised before the first appellate authority, or the averment made thereby, i.e., at this stage, being in relation to a fact material to the adjudication of the legal issue raised by him for the first time before the said authority, and which is now pressed before us. We do note and are conscious that the Revenue also records the assessee's first return as a belated return in-as-much as there is a charge of interest u/s. 234A for the delay in the filing of return per assessment u/s. 143(3). However, the same is without any basis. As aforesaid, there is no mention ....
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....to be denied admission. The law in the matter is well settled. Reference in this regard may be made to the decision by the Hon'ble jurisdictional High Court in CIT v. Abhinitha Foundation Pvt. Ltd. [2017] 396 ITR 251 (Mad), rendered upon noticing and referring to a plethora of decisions, including by the Hon'ble Apex High Court and, further, by the larger benches thereof, as well as by the its earlier judgments, as in Ramco Cements Ltd. v. Dy. CIT [2015] 373 ITR 146 (Mad) and CIT v. Malind Levitators Pvt. Ltd. (T.C. (A) No.874/2014 dated 18.11.2014). In sum, it is reiterated that an appellate authority has the power to consider the assessee's claim even if not made per a return or revised return of income where the relevant material is on record and the claim is otherwise tenable in law. In the present case, the claim is for negation or declaring invalid the assessee's return in law and, consequently, the assessment framed in pursuance thereto, which the assessee is well entitled to make, provided there is no dispute qua facts required to determine the issue arising. Where the relevant facts are not on record, or the material or record points otherwise, or are to be brough....
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....e of any material on record exhibiting the assessee to be a working partner in a firm whose accounts are subject to tax audit, viz., the instrument of partnership as applicable for the current year; the firm's balance-sheet, or even its computation for the current year, etc. Rather, we observe contrary claims by the assessee in the matter, albeit to the same effect, i.e., an inability to answer the legal issue arising in the definitive. No wonder the ld. counsel would, in his pleadings before us, submit that the matter be restored for consideration by the AO - a course of action which is clearly impermissible, except where the facts are borne out by the record, which is clearly not the case. This, then, makes the assessee's legal plea raised per the additional ground in the appellate proceedings inadmissible in-asmuch as it is only where the facts necessary for answering the same are borne out by the record or otherwise not in dispute, that the same could be admitted in the appellate proceedings. The law in the matter is well-settled, and toward which reference be made, inter alia, to the decisions in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) and Jute Corporati....
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....d anyone take advantage of his own wrong - as the filing of the 'revised' return stated to be (per Addl. Gd.1), which is impermissible in law. That the assessee supports the said filing per his Gd. 5.3 (also before the first appellate authority) further confounds the matter, clearly making his Addl. Gds. inadmissible. The Revenue, however, though not in appeal, is not constrained by the said admission (of the assessee's legal ground) by the ld. CIT(A) in-as-much as it can, as it does, support his order on any ground decided against it (r. 27 of the Income Tax (Appellate Tribunal) Rules, 1963). In other words, the question of admission of legal issue cannot prejudice the Revenue's case. There is, as we observe, no reference to, nor any material on record, which would bear out the relevant facts necessary for answering the legal question, with the Revenue entitled to support the impugned order in any manner. Rather, and even otherwise, it is the correct legal position that is relevant, and not the view that the parties may take of their rights in the matter (refer: CIT v. C. Parakh & Co. (India) Ltd. [1956] 29 ITR 661 (SC); Kedarnath Jute Mfg. Co. Ltd. v. CIT [1971] 82 ITR 363 (SC))....