TaxTMI 
TaxTMI 
2019 (4) TMI 2056
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.... supplied before this Court that the 1st Assessment order of the ITO was passed on 28.03.1988, which was challenged before the leaned CIT (A) and the same was dismissed on 28.11.1988. Against the said order, the assessee filed an appeal before the ITAT, Cuttack Bench, Cuttack, which was dismissed on 19.01.1990. Thereafter, by order dated 13.12.1990 passed in a Misc. Application, the order dated 19.01.1990 was recalled and the matter was heard afresh. Again on 10.05.1991, learned Tribunal decided the matter and allowed the exemption to the assessee. The revenue filed writ petition before this Court challenging the rectification order dated 13.12.1990. This Court on 02.12.1991 allowed the writ petition and quashed the recalling order dated 13.12.1990 as well as its substantive order dated 10.05.1991. For ready reference, the said order dated 02.12.1991 of this Court passed in OJC No.2953 of 1991 is quoted hereunder: "The CIT, Orissa, in this writ application, questions legality of the order passed by the Income-tax Appellate Tribunal, Cuttack Bench (in short 'the Tribunal'), in purported exercise of the powers under s. 254(2) of the I.T. Act, 1961 (in short 'the ....
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....ssessee's grievance was relating to rejection of its method of accounting, and the Tribunal has applied the provisions of s.11(4A) which were not raised before the authorities and, therefore, that was a clear and apparent error. Since the Tribunal applied the Section suo motu, it constituted a rectifiable mistake in terms of s.254(2). 3. The stand of the Revenue in essence in this writ application is that the approach of the Tribunal was erroneous. What is rectifiable under s.254(2) is a mistake apparent from the record and not any other mistake which may have crept into the Tribunal's order. The question whether s.11(4A) had on the facts application or not is not a mistake apparent from record. Merely because the authorities below have not specifically dealt with the section, it cannot be held that they had not considered the case in the background of the section. Mr. S. N. Rotho, learned counsel for the assessee, however, submitted that while dealing with the rectification application the Tribunal has recorded a categorical finding that the Tribunal made out a case suo motu and, therefore, the rectification is justified. 4. For resolution of the....
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....d by the Tribunal on 10th May, 1991, vide annexure-2. In view of our conclusion that the order of the recall is interdicted, the subsequent order dated 10th May, 1991 (annexure-2) cannot also be maintained. 6. In the result, annexures-1 and 2 are quashed. Writ application is allowed. No costs." 4.1 Against the said order of this Court, the assessee filed SLP in SLP (Civil) No.2154 of 1992 before the Hon'ble Supreme Court and on 18.01.1993, the following interim order was granted by the Hon'ble Supreme Court: "Heard Shri G.L. Sanghi, learned senior counsel for the petitioner and learned Solicitor General for the respondents. Leave granted. As the point involved in a question of law, printing of record is dispensed with. Hearing of the appeal to be expedited. Additional papers, if any, to be filed by both side within eight weeks. In the meanwhile, while assessment proceedings to tax be proceeded with and demand notice issued, the collection of tax shall be stayed until further orders." 4.2 Finally, on 24.04.1996, the said SLP was disposed of with certain directions and in obedience to the direction contained therein, the Tribunal referred the matter to this Co....
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....this Court in the present appeals and has framed the following substantial questions of law for consideration of this Court: i) Whether on the facts and under the circumstances of the case, the Ld. ITAT is justified in unsettling a settled issues passed by an earlier bench vide order dtd.10.05.91? ii) Whether on the facts and under the circumstances of the case, the Ld. ITAT is justified to ignore its interim order dtd.05.05.2008, where there was a direction to the department to verify the accounts taking into consideration the practical aspects of the case i.e., whether the bill receivables for the assessment year 1985-86 has been accounted for in the succeeding year or not? iii) Whether on the facts and under the circumstances of the case, the Ld. ITAT is justified to ignore the direction of an earlier Bench and confirmed the first appeal order under the plea of "appellant has not advanced any arguments in terms of section 11(4A) of the I.T. Act so as to attract the income to be exempted u/s 11 of the Act. iv) Whether on the facts and circumstances of the case, the Hon'ble ITAT is justified to concur with the forum below that hybrid system of a....
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....ee's claim that the turnover not included in the account for 1985-86 have not been actually received were received in subsequent asst. year and accordingly the accounts have been drawn.xxx Rule-12 of the I.T. Rules [Return of income and return of fringe benefits. 12.(1) The return of income required to be furnished under sub-section (1) or sub-section (3) or sub-section (4A) or sub-section (4B) or sub-section (4C) or sub-section (4D) of section 139 or clause (i) of sub-section (1) of section 142 or sub-section (1) of section 148 or section 153A relating to the assessment year commencing [on the 1st day of April, [2013]] shall,- [(a) in the case of a person being an individual where the total income includes income chargeable to income-tax, under the head,- (i) "Salaries" or income in the nature of family pension as defined in the Explanation to clause (iia) of section 57; or (ii) "Income from house property", where assessee does not own more than one house property and does not have any brought forward loss under the head; or (iii) "Income from other sources", except winnings from lottery or income from race horses, [and does....
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....eeding five thousand rupees. ] (d) in the case of a person being an individual or a Hindu undivided family other than the individual or Hindu undivided family referred to in clause (a) or clause (b) or clause (c) [or clause (ca)] and deriving income from a proprietory business or profession, be in Form No. ITR-4 and be verified in the manner indicated therein; (e) in the case of a person not being an individual or a Hindu undivided family or a company or a person to which clause (g) applies, be in Form No. ITR-5 and be verified in the manner indicated therein; (f) in the case of a company not being a company to which clause (g) applies, be in Form No. ITR-6 and be verified in the manner indicated therein; (g) in the case of a person including a company whether or not registered under section 25 of the Companies Act, 1956 (1 of 1956), required to file a return under sub-section (4A) or sub-section (4B) or sub-section (4C) or sub-section (4D) of section 139, be in Form No. ITR-7 and be verified in the manner indicated therein; (h) omitted, ibid. [(2) The return of income required to be furnished in Form SAHAJ (ITR-1) or Form No. I....
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....to whom provisions of section 44AB are applicable, shall furnish the return for assessment year 2011-12 and subsequent assessment years in the manner specified in clause (ii);] [(aab) a person claiming any relief of tax under section 90 or 90A or deduction of tax under section 91 of the Act, shall furnish the return for assessment year 2013-14 and subsequent assessment years in the manner specified in clause (ii) or clause (iii);] [(ab) a company required to furnish the return in Form ITR-6 shall furnish the return for assessment year 2010-11 and subsequent assessment years in the manner specified in clause (ii);] (b) a person required to furnish the return in Form ITR-7 shall furnish the return in the manner specified in clause (i) [for clause-(ii) or clause-(iii)]. (4) The Director-General of Income-tax (Systems) shall specify the procedures, formats and standards for ensuring secure capture and transmission of data and shall also be responsible for evolving and implementing appropriate security, archival and retrieval policies in relation to furnishing the returns in the manners specified in clauses (ii), (iii) and (iv) of sub-rule (3). [and the report....
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....excess of its jurisdiction. Therefore, having regard to the nature of the issue that was before the Tribunal and in view of what has been stated above, we think it proper to set aside that order dt.10th May, 1991, and direct the Tribunal to consider the case on all the points arising out of the CIT's order dt.28th Nov., 1988. While considering the matter, the Tribunal will also keep in view the provision of s.11(4A) of the Act which came to be inserted by the Finance Act, 1983, w.e.f. 1st April, 1984. 12. In the result, we answer question No.(3) in favour of the assessee and against the Revenue. The references are returned unanswered in respect of question Nos.(1) and (2) in view of our direction to the Tribunal as mentioned above." 2. Paragraph-2.7 Ld. DR on the other hand, placed reliance on the original order dated 19.1.1990 by the Tribunal in which the method of accounting adopted by the assessee was not accepted and the exemption u/s.11 was denied. He also placed reliance on the following decisions: Samajbadi Society-vs-ACIT 79 ITD 112, ACIT-Vs-Thanthi Trust 247 ITR 785 and Sole Trustee, Loka Sikshana Trust-Vs-CIT 101 ITR 234. ....