APARAJITA GOENKA,KOLKATA vs. ITO, WARD-29(4), KOLKATA

At the outset, the Ld. AR for the assessee Shri S. M. Surana submitted that the grievance of the assessee is very interesting in the sense, according to him, the assessee had filed the return of income (original) for AY 2012-13 showing an income of Rs.1,09,210/-. Thereafter the case was reopened u/s. 147 of the Income-tax Act, 1961 (hereinafter referred to as the “Act”) on the basis of certain information received from the National Multi Commodity Exchange (NMCE) regarding certain misuse of its platform by certain unscrupulous elements. Based on that information, the AO issued statutory notice/s 148 of the Act, pursuant to which the assessee had filed return again for AY 2012-13 on 29.03.2019.

Thereafter, the reassessment order reveals that AO had issued notice u/s. 133(6) of the Act to the NMCE for verification of the transactions made by the assessee and after examining the documents the AO concluded in his own words that “after examining the issue the total income declared by the assessee in the return of income is accepted as assessed income”, and then the AO assessed the income at Rs.5,07,400/- [whereas, Assessee’s ROI showed income of Rs.1,09,210/-]. Aggrieved by the aforesaid action of the AO, the assessee contended before the Ld. CIT(A) in her appeal that the assessee has not made any changes in the return of income meaning in the original return filed on 04.07.2012 the assessee had returned an income of Rs.1,09,210/- and thereafter pursuant to the notice u/s. 148 of the Act had again filed the very same return of income on 29.03.2019 showing total income of Rs.1,09,210/- and drew our attention to pages 1 and 2 of the paper book which I find to be correct i.e. the same return showing Rs.1,09,210/- has been filed both the times. However, even though the AO after enquiry accepted the returned income, he finally assessed the income of the assessee at Rs.5,07,400/- instead of Rs.1,09,210/-. Even though this anomaly was brought to the notice of the Ld. CIT(A), he repelled the same and made the following observation (at page 3 of his impugned order) “in response to the notice u/s. 148 of the Act, the return of income was filed on 29.03.2019. Apparently, this return was different than the original return where certain income was added by the appellant”. Thereafter, the Ld. CIT(A) observes that the assessee in the reassessment proceedings had raised certain claims which, according to him, could not have been entertained in the light of the decision of the Hon’ble supreme Court in the case of Sun Engineering Works (P) Ltd. 64 taxman 422 (SC) and thereafter was pleased to confirm the action of the AO. According to Ld. AR, the impugned order of the Ld. CIT(A) is ex-facie perverse. According to him, from a perusal of page nos. 1 and 2 of paper book which are the returns filed by the assessee would show on the face of it that the assessee had filed the original return showing income of Rs.1,09,210/- which was reiterated while filing the return of income pursuant to the notice u/s.1 48 of the Act on 29.03.2019 respectively. Moreover, the Ld. AR wondered as to how the Ld. CIT(A) could make a finding that return filed by assessee pursuant to notice u/s. 148 of the Act was different from the one filed originally. The Ld. AR clarified that assessee did not offer any additional income or made any additional claim/new claim during reassessment proceedings as wrongly found by the Ld. CIT(A) and referred to page 2 PB which is the return filed by the assessee pursuant to notice u/s 148 of the Act to support his contention. Therefore, according to Ld. AR, the incorrect assertion made by the Ld. CIT(A) as pointed out needs to be rectified.

Per contra, the Ld. Sr. DR Shri Nicholas Murmu submitted that this is purely a question of fact which requires verification.

Heard the rival submissions and gone through the facts and circumstances of the case. It is noted that the assessee had filed return of income showing Rs.1,09,210/- on 04.07.2012 (original return). Later the case of the assessee was reopened u/s.147 of the Act by issuance of notice u/s. 148 of the Act. Pursuant thereto the AO accepts in his reassessment order dated 11.11.2019 that the assessee had filed return of income again on 29.03.2019. (However, he has not spelt out the income that was offered by her in the return of income). Thereafter, the AO confronted the assessee in respect of the information/allegation which he received in respect of misuse of NMCE platform and pursuant thereto, the assessee had filed documents to substantiate her transaction in NMCE. The AO admits in his order that he had issued notice u/s. 133(6) to the NMCE authorities and after verification and after examining the issue, the AO accepted the declared income of the assessee in her return of income. However, while concluding, the AO has assessed the income finally at Rs.5,07,400/- which action of the AO, according to the Ld. AR, is mistake apparent on the face of the record. According to him, the returned income pursuant to the notice u/s.148 of the Act was also Rs.1,09,210/- [dated 29.03.2019] which fact is discernible from perusal of page 2 of paper book. It is noted that the date of assessee’s filing the return pursuant to the notice u/s. 148 of the Act is not disputed either by the AO or Ld. CIT(A). Now the only issue is as to whether the assessee while filing the return of income pursuant to the notice u/s. 148 of the Act has shown Rs.1,09,210/- or Rs.5,07,400/-. According to the Ld. Addl. CIT, DR, this disputed issue is a question of fact which contention I concurr. Therefore, the way to solve this issue is either to call for a remand report and adjudicate it or it can be sent back to the AO for verification of this fact as to whether the assessee had filed the return of income dated 29.03.2019 showing figure of Rs.1,09,210/- or Rs.5,07,400/-. Resultantly, this issue is restored back to AO for the limited purpose to verify this fact that as to whether the assessee had filed the return of income dated 29.03.2019 showing figure of Rs.1,09,210/- or Rs.5,07,400/-. The AO after giving reasonable opportunity to the assessee verify the same and since the AO has accepted the returned income of assessee after enquiry, the figure shown by the assessee in the return filed pursuant to the notice u/s. 148 of the Act dated 29.03.2019 be accepted as the assessed income of the assessee in the peculiar facts and circumstances of the case as discussed supra.

In the result, the appeal of the assessee is allowed for statistical purposes.