Wp/17437/2003 Of M/S.vincent Devaraj & Bros v. The Commr.of Income Tax - Ii

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 13.04.2016 CORAM THE HONOURABLE MR.JUSTICE M. DURAISWAMY W.P. No.17437 of 2003 M/s.Vincent Devaraj & Bros.Rep. by its Managing PartnershipT.Vincent Devaraj .. Petitioner-vs- The Commissioner of Income Tax-II2,V.P.Rathinasamy Nadar Road,Madurai – 625 002. ... Respondent Prayer: Petition filed under Article 226 of the Constitution ofIndia to issue a writ of certiorarified mandamus to call for therecords of the respondent in C.No.414/9/2002-03 dated 28.05.2003and quash the impugned order and consequently direct therespondent to grant relief to the petitioner for the assessmentyear 2000-01. For Petitioner : Mr.R.SenniappanFor Respondent : Mr.M.Swaminathan, Senior Counsel Assisted by Mrs.V.Pushpa, Senior Standing Counsel O R D E R The petitioner has filed the above writ petition to issue awrit of certiorarified mandamus to call for the records of therespondent in C.No.414/9/2002-03 dated 28.05.2003 and quash theimpugned order and consequently direct the respondent to grantrelief to the petitioner for the assessment year 2000-01. 2.It is the case of the petitioner that it is a PartnershipFirm consisting of four partners, engaged in the business ofmanufacture and sale of tiles. The petitioner firm is assessedto income tax on the file of the Assistant Commissioner ofIncome Tax, Tirunelveli. The relevant assessment year is 2000-01and the corresponding accounting year ended on 31.03.2000. On31.10.2000, the petitioner filed a return of income admittingthe income of Rs.33,494/-. A survey was conducted under Section133A of the Income Tax Act on 27.12.2000 and during the courseof the survey, the petitioner agreed to offer Rs.25,00,000/- ashttps://hcservices.ecourts.gov.in/hcservices/ income. Thereafter, the petitioner filed a petition underSection 264 of the Income Tax Act before the Commissioner ofIncome Tax-II, Madurai. The respondent, after considering thesubmissions made by the petitioner, rejected the petition filedunder Section 264 of the Income Tax Act and held that once theincome is offered, then the same cannot be withdrawn. 3.Mr.R.Senniappan, learned counsel appearing for thepetitioner submitted that the petitioner did not voluntarilyadmit an income of Rs.25,00,000/- at the time of survey and thatthe statement was given only on the threat made by therespondent. The petition filed under Section 264 of the IncomeTax Act was dismissed on the ground that the return of incomewas filed within the time allowed under Section 139(5) and hencethe same is valid. Further the respondent held that once theassessee admitted the income, the same shall be the final and itcannot be changed. Further the return of income was filedvoluntarily and income returned was accepted without making anyaddition. 4.On a perusal of the materials available on record, itcould be seen that the return was filed under Section 139(4) ofthe Act within the time allowed and the return was filed,admitting an income of Rs.33,494/- including the additionalincome of Rs.25,00,000/- offered during the course of survey.The order under Section 264 of the Act was passed in accordancewith the law laid down by the Hon'ble Supreme Court reported in261 ITR 367 (SC) in the case of CIT vs. Shelly Products, whereinit has been held that the Act enjoins upon the assessee the dutyto file a return of income disclosing his true income and thefiling of the return and payment of tax thereon amounts to anadmission of tax liability which the assessee admits to haveincurred in accordance with the Act. 4.On a perusal of the materials available on record, itcould be seen that the return was filed under Section 139(4) ofthe Act within the time allowed and the return was filed,admitting an income of Rs.33,494/- including the additionalincome of Rs.25,00,000/- offered during the course of survey.The order under Section 264 of the Act was passed in accordancewith the law laid down by the Hon'ble Supreme Court reported in261 ITR 367 (SC) in the case of CIT vs. Shelly Products, whereinit has been held that the Act enjoins upon the assessee the dutyto file a return of income disclosing his true income and thefiling of the return and payment of tax thereon amounts to anadmission of tax liability which the assessee admits to haveincurred in accordance with the Act. 5.Learned counsel appearing for the respondent submittedthat the respondent, taking into consideration the case of thepetitioner, had rightly rejected the petition filed underSection 264 of the Income Tax Act. It is also pertinent to notethat the petitioner has not filed any appeal as against theorder. Further no objection was raised at the time of survey orafter survey or at the time of processing the return file. Whenthe return of income was filed voluntarily, no addition was madeand the income returned was accepted, without making anyaddition, the petitioner cannot now take a stand that thestatement was given only on the threat made by the respondent.As rightly pointed out by the respondent, the petitioner cannotplead ignorance and that the income that has to be assessed inthe previous years and the income that has to be assessed in thehands of partners are to be excluded. Further the respondent hadpointed out that in spite of the assessee has the option to filerevised return till 31.03.2002 as per the provisions of Section139(5) of the Income Tax Act, the assessee did not opt to do so.The finding of the respondent that the assessee's contention is https://hcservices.ecourts.gov.in/hcservices/ a clear after thought is correct. Under this circumstance, I donot find any reason to interfere with the order passed by therespondent. The writ petition is devoid of merits and the sameis dismissed. No costs. Consequently, connected M.P. is closed. Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant RegistrarvgaToThe Commissioner of Income Tax-II2,V.P.Rathinasamy Nadar Road,Madurai – 625 002.+1cc to Mr.M. Swaminathan, Advocate, S.R.No.23741+1cc to Mr.R. Senniappan, Advocate, S.R.No.23396W.P. No.17437 of 2003CA(CO)EU 31.05.16