SRI MANAB KEJRIWAL,KOLKATA vs. ITO, WD-49(2), KOLKATA, KOLKATA

BEFORE SHRI WASEEM AHMED, AM & SHRI S.S.VISWANETHRA RAVI, JM आयकर अपील सं./ITA No.698/Kol/2014 (�नधा�रण वष� / Assessment Year :2009-2010) Sri Manab Kejriwal, Block-9, Flat Vs. Income Tax Officer, No.5H, 5th Floor, Space Town Ward-49(2), Kolkata Housing Complex, V.I.P. Road, Kolkata-170052 �थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AWJPK 1519 R .. (अपीलाथ� /Appellant) (��यथ� / Respondent) �नधा�रती क� ओर से /Assessee by : Shri S.M.Surana राज�व क� ओर से /Revenue by : Shri S. Srivastava सुनवाई क� तार�ख / Date of Hearing : 06/06/2016 घोषणा क� तार�ख/Date of Pronouncement 15/07/2016 आदेश / O R D E R PER WASEEM AHMED (A.M.): The assessee has preferred this appeal against the order vide Memo No. CIT-XVII/U/s263/2012-13/1154-1157 dated 26-2-2014, passed by ld. Commissioner of Income Tax-XVII, (CIT for short) Kolkata, relating to assessment year 2009-2010, on the following grounds :-

1. For that the order of the Ld. CIT (A) is arbitrary, illegal and bad in law.

2. For that the Ld. C.I.T erred in passing the order u/ s. 263 when the assessee did not file any return of income for the year under consideration, the issue was not examined by the AO , the assessment was completed which itself was bad in law and therefore the entire proceedings u/s. 263 are also void-ab initio.

3. For that the Ld. C.I.T erred in exercising jurisdiction u/s. 263 when all the issues raised in the show cause notice had been considered and categorically spelt out by the AO in his order passed U/s. 144, duly examined by him since the assessment itself was taken up for scrutiny only on the basis of the AIR information in respect of the impugned amounts.

4. For that the Ld. CIT himself should have decided the issue, call for the records and examined the same when the

2. At the outset ld. AR of the assessee has challenged the proceedings u/s 263 of the Act on the ground that the assessee has never filed income tax return. The same objection was also raised before the AO at the time of assessment framed u/s.144 of the Act. Ld. AR also filed a paper book comprising pages from 1 to 34. The ld. AR drew our attention on pages 10 to 34 of the paper book, where detail of online return was placed. Ld. AR challenged the above income tax return and stated that the same was not filed by the assessee. It was also observed that the return was not signed by the assessee.

3. On the last day of hearing i.e. 5/1/2016 the ld. DR was directed to produce the assessment records and thereafter the case was fixed for hearing 4 times but till date no compliance has been made. On a specific query from the Bench about the genuineness of the return filed by the assessee, ld. DR failed to bring anything contrary to the arguments advanced placed by the ld. AR. In view of the above, we are of the opinion that the return filed by the assessee is not valid return. Accordingly assessment framed u/s.144 and order passed u/s.263 of the Act becomes void ab initio. Section 140 of the Income-tax Act, 1961 provides for the persons by whom the return must be signed. The pertinent question that arises is whether it should be treated non est or a curable defect or a rectifiable mistake or can it be saved by some other statutory provision. Discussing the situation and the judicial decisions in this regard, we are of the opinion that section 139(1) of the Act mandatorily requires that the return should be furnished in the prescribed form and verified in the prescribed manner. Section 140 of the Act, again, mandatorily provides the list of persons who are eligible to sign the return. It is a well settled principle that if a statute provides for a thing to be done in a particular manner, then it is to be done in that manner and in no other manner, but the pertinent question is, if that thing is not done in conformity

3 Sri Manab Kejriwal with the statutory requirement what would be its effect? Whether it should be treated non est or a curable defect or a rectifiable mistake or can it be saved by some other statutory provision? As a matter of fact, the aforesaid four probabilities have been drawn from the anomalous statutory and judicial delineations of the moot-point. In the case of Commr. of Agrl. IT vs. Keshab Chandra Mandal (1950) 18 ITR 569 (SC) : TC 9R.617, the Hon’ble Apex Court had laid down that return not signed or thumb marked by the illiterate assessee could not be treated as a properly signed and a valid return. In Waman Padmanabh Dande vs. CIT (1952) 22 ITR 339 (Nag) : TC 9R.394, a Division Bench of the Nagpur High Court had held that "where a return made is not in the prescribed form, or is not signed and verified as required by the prescribed form, it is an invalid return”. The identical view seems to have been expressed by the Hon’ble Allahabad High Court in CIT vs. Dr. M.K. Gupta 1978 CTR (All) 36 : (1978) 113 ITR 473 (All). Again, in CIT vs. Dr. Krishan Lal Goyal (1984) 43 CTR (P&H) 135 : (1984) 148 ITR 283 (P&H) : TC 9R.628, the Hon’ble Punjab and Haryana High Court held that if a return is not signed and verified as required by the prescribed form, it is an invalid return. Hon’ble jurisdictional High Court in National Insurance Co. Ltd. vs. CIT (1995) 127 CTR (Cal) 238 : (1995) 213 ITR 862 (Cal) : TC S9.1087 has also held that the non-signing of a return filed by the assessee would invalidate the return and no assessme3.1nt thereon is called for and it cannot be said to be a defective return as the specific cases and circumstances indicating when/which return would be defective have been indicated in the explanation to section 139(9) and the Income-tax Officer cannot treat other cases and circumstances of deficiencies fatal to the return as being nearly defects in the return. Accordingly, the unsigned return was held to be invalid and not a case of mere defective return.

3.1 In the instant case, we find that assessee states in his return, has not been submitted. Further, we find from the return submitted before us that 4 Sri Manab Kejriwal the return is also not signed. Relying on the aforesaid judgments we are inclined to reverse the impugned order of authorities below. Hence this ground of assessee is allowed.

Order pronounced in the open court on this 15/07/2016.

Sd/- Sd/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता Kolkata; �दनांक Dated 15/07/2016 �.कु.�म/pkm,/*Dkp �न.स/ PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. आयकर आयु�त(अपील) / The CIT(A), Kolkata 4. आयकर आयु�त / CIT �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, कोलकाता / DR, ITAT, Kolkata 5. 6. गाड� फाईल / Guard file. स�या�पत ��त //True Copy// आदेशानुसार/ BY ORDER,