Income Tax Return can be revised even if order us 143(3) has been passed

Income Tax Return can be revised even if order us 143(3) has been passed

IN THE INCOME TAX APPELLATE TRIBUNAL

The Relevant Text of the Order as follows :

16. The other reason given by the AO to reject the revised return was that the assessee company has filed the revised return after receipt of intimation u/s. 143(1) of the Act and hence do not fulfill the conditions as laid down in sec. 139(5) of the Act which provision required the filing of revised return prior to completion of assessment. We note that in the instant case the assessee filed ROI on 28.09.2010 and intimation u/s. 143(1) was issued on 14.04.2011 and the revised ROI was filed on 09.06.2011, after the Hon’ble High Court’s order of demerger was passed on (08.03.2011 and 21.04.2011) with effect from the appointed date 01.03.2010. So from the dates of events given above, it is clear that assessee could not have filed the revised return claiming set off u/s. 72A(4) of the Act of the demerged company without the Hon’ble High Court’s sanctioned the demerger scheme on 08.03.2011 and 21.04.2011. The intimation was issued by the department u/s. 143(1) of the Act on 14.04.2011. So, the AO by raising this objection is asking the assessee to do an impossible thing. Be that as it may be intimation u/s. 143(1) of the Act is not strictly assessment, when the AO has passed in the relevant year scrutiny assessment u/s. 143(3) of the Act.

17. According to us, the right to file a revised return of income does not lapse with the issuance of intimation under section 143(1) of the Act. Intimation u/s 143(1) of the Act cannot be said to be a ‘completion of assessment’ and more so, when assessment has subsequently been completed under section 143(3) of the Act. Reliance is placed on the judgment of the Hon’ble Supreme Court in the case CIT v Rajesh Jhaveri Stock Brokers Pvt. Ltd. (2007) 291 ITR 500 (SC) wherein it was held that,

“The expressions ‘intimation’ and ‘assessment order’ have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. The assessment is used as meaning sometimes ‘the computation of income’, sometimes ‘the determination of the amount of tax payable’ and sometimes ‘the whole procedure laid down in the Act for imposing liability upon the tax payer’. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment.”

18. The Hon’ble Calcutta High Court in Coates of India Ltd. v. Deputy CIT [1995] 214 ITR 498 (Cal) held that where the order under section 143(1)(a) is followed by a regular assessment under section 143(3), the order under section 143(1)(a), in so far as it is contrary to the regular assessment under section 143(3) ceases to be executable and becomes ineffective. Further, in Himgiri Foods Ltd v. CIT /2010} 231 CTR 470 (Gujarat) it was held by the Hon’ble High court of Gujarat that the provision mandates that if after the issuance of intimation, a revised return is furnished by an assessee under sub-section (5) of section 139 it is incumbent upon the Assessing Officer to process the revised return and amend the intimation issued under section 143(1)(a) of the Act on the basis of the revised return. At this stage there is no question of going into the validity of the return filed under section 139(5) of the Act if the revised return is filed within the prescribed period of limitation. An intimation under section 143(1)(a) of the Act cannot be equated with an assessment framed under section 143(3) of the Act and the Assessing Officer cannot refuse to process the revised return and modify the intimation in accordance with section 143(1B) of the Act.

Read Order

Tags:  Judgement, Appellant Tribunal, Income Tax

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