2021 (11) TMI 569

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....g-Term Capital Gain of Rs. 11,40,88,276/- as against the actual Long Term Capital Gain of Rs. 11,24,57,974/- resulting into an addition of Rs. 16,30,302/-. The said CIT(A) erred in not considering the Revised computation of Long-term Capital Gain submitted by the appellant during the course of assessment proceedings, replacing the correct fair value of cost as on 01.04.1981, which was inadvertently considered at a wrong amount in the return of income. 1.2 The said CIT(A) erred in not appreciating the fact that the power of AO is quasi judicial in nature and he is duty bound to act fairly in the discharge of his functions as directed by C.B.D.T. vide circular No. 14 (XL- 35) dated 11.04.1955. 1.3. The said CIT (A) also erred in not exerc....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....h the Long Term Capital Gain was considered at a high amount of Rs. 1,630,302/-. Accordingly, the Assessing Officer should have calculated the correct Long Term Capital Gain and assessee the income of the appellant firm accordingly." 5. The Ld. CIT(A) reproduced the various aspects of submission of the assessee. Despite assessee's submission and noting assessee's reliance upon Hon'ble Bombay High Court decision in the case of CIT vs. Pruthvi Brokers and shareholders Pvt. Ltd. 349 ITR 336, Ld. CIT(A) did not dealt with this decision. He referred to the decision of Hon'ble Bombay High Court in the case of Menezes Fernandes Enterprises vs. ITO, Ward-4, Margao, Goa (2013) 30 taxmann.com 388 for the proposition that "when the as....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....lant has not filed its return on or before the due date prescribed u/s. 139(1) then if is precluded from filing a revised return u/s. 139(5) of the Act. Thus, if the appellant has made some error in the computation of income and it is not permitted by law to rectify the same by way of a revised return u/s. 139(5) of the Act, it cannot make such claim for rectification of error committed, in the course of assessment proceedings or in the appellate proceedings, fn this regard, reliance is placed on the decision of Hon'ble High Court of Bombay in the case of Menezes Fernandes Enterprises vs. ITO, Word 4, Margao, Goa (2013) 30 taxmann.com 388 wherein it was held as under: A Perusal of the said section as it existed then and more particula....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....time, it would have said so in sub clause (5). The very fact that sub clause 4 is not referred to in sub clause (5) clearly indicates the intention of the legislature. [Para 8] Thus in view of the specific provisions of section 139(5), it is not open for the appellant to either rectify or revise his return after there was a delay in filing a said return in time. Viewed from any angle, therefore, there is no infirmity in the order passed by the Tribunal [para 11] The appeal, therefore, is dismissed. [Para 12] In view of above discussion, I do not find merit in the grounds raised by the appellant to modify its claim of long term capital gain, since it had filed its return of income beyond the lime prescribed u/s. 139(1) of the Act and i....