R.Jayalakshmi L/H R.Kumar, CHENNAI V. ACIT, CHENNAI

CO 195/CHNY/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8330 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 03-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANRIRUDH RAI
• Keywords: Rectification of order
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH CHENN AI BEFORE SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER .. ITA NO.1996/MDS./2012 ASSESSMENT YEAR:2010-11 ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(5), III FLOOR, NEW BUILDING, 46 M G ROAD, CHENNAI 600 034. VS. SHRI R.KUMAR, L/H OF R. JAYALAKSHMI, 88,BRINDAVAN STREET, WEST MAMBALAM, CHENNAI 600 033. PAN AAOPK 5368 B (APPELLANT) (RESPONDENT) C.O. NO.195/MDS./2012 ASSESSMENT YEAR:2010-11 SHRI R.KUMAR, L/H OF R. JAYALAKSHMI, 88,BRINDAVAN STREET, WEST MAMBALAM, CHENNAI 600 033. VS. ASST. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE I(5), III FLOOR, NEW BUILDING, 46 M G ROAD, CHENNAI 600 034. PAN AAOPK 5368 B (CROSS OBJECTOR) (APPELLANT IN APPEAL) REVENUE BY : SHRI ANRIRUDH RAI CIT D.R ASSESSEE BY : NONE ITA. 1997 /MDS12 CO NO.196/MDS/12/ 2 DATE OF HEARING : 30.01.13 DATE OF PRONOUNCEMENT : 07 .02.13 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THESE ARE APPEAL AND CROSS OBJECTION OF THE REVE NUE AND THE ASSESSEE RESPECTIVELY DIRECTED AGAINST AN ORDER DATED 03.08.2012 OF CIT(A)-I, CHENNAI. GRIEVANCE OF REV ENUE IN ITS APPEAL IS THAT CIT(A) QUASHED RECTIFICATION EFFECTE D BY THE CENTRAL PROCESSING CENTRE, BANGALORE UNDER SECTION 154 OF T HE INCOME TAX ACT, 1961 (IN SHORT THE ACT), THEREBY GRANTIN G ASSESSEE THE DEDUCTION CLAIMED BY ASSESSEE UNDER SECTION 80-IB OF THE ACT. ASSESSEE IN ITS CROSS OBJECTION POINTS OUT THAT ORD ER OF CIT(A) DATED 03.08.12 WAS CANCELLED BY A SUBSEQUENT ORDER DATED 16.10.2012 AND THEREFORE, THE APPEAL OF THE REVENUE IS INFRUCTUOUS. 2. SHORT FACTS APROPOS ARE THAT WHILE FILING ITS RETURN FOR THE IMPUGNED ASSESSMENT YEAR THROUGH E-FILING MODE, A SSESSEE HAD NOT CLAIMED ANY DEDUCTION UNDER CHAPTER-VI-A OF THE ACT. THE COLUMN SHOWING DEDUCTIONS CLAIMED UNDER CHAPT ER VI-A WAS FILLED UP WITH A ZERO I.E. 0. NEVERTHELE SS WHILE ARRIVING AT THE TOTAL INCOME FROM GROSS TOTAL INCOME, ASSESSEE REDUCED A SUM OF ` 5,20,46,943/-. WHILE COMPUTING THE TAX LIABILITY I N THE ITA. 1997 /MDS12 CO NO.196/MDS/12/ 3 E-RETURN, TOTAL TAX DUE WAS SHOWN AS ` 1,86,52,486/-. NEVERTHELESS, DESPITE PAYING SELF-ASSESSMENT TAX OF ONLY ` 83,630/- AND TDS OF ` 1,18,418/-, IT SHOWED THE TOTAL TAX PAID AT ` 1,84,50,438/- IN THE E-RETURN. HOWEVER, IN THE INT IMATION DATED 14.12.10 ISSUED BY THE REVENUE, DEDUCTION OF ` 5,20,46,943/- FROM THE GROSS TOTAL INCOME WAS NOT ALLOWED. ASSES SEE FILED A PETITION UNDER SECTION 154 TO THE ASSESSING OFFICER STATING THAT SUCH DEDUCTION CLAIMED UNDER SECTION 80-IB(10) OF T HE ACT SHOULD BE GRANTED. HOWEVER, IT SEEMS THE SAID PETITION UN DER SECTION 154 WAS REJECTED BY THE ASSESSING OFFICER. 3. THEREAFTER, ASSESSEE MOVED IN APPEAL BEFORE THE CIT (A) AGAINST THE RECTIFICATION ORDER DATED 26.07.11. CI T(A) IN SUCH APPELLATE PROCEEDINGS HELD THAT ASSESSEE WAS ELIGIB LE FOR THE CLAIM OF DEDUCTION UNDER SECTION 80-IA OF THE ACT, SINCE IT WAS DEVELOPING AND BUILDING HOUSING PROJECTS AND WAS N OT A MERE CONTRACTOR. 4. NOW BEFORE US, REVENUE IS AGGRIEVED THAT THE CI T(A) FAILED TO NOTE THAT ASSESSEE HAD ITSELF NOT PREFERRED SUCH CLAIM IN ITS E- RETURN FILED AND CIT(A) OUGHT NOT HAVE ACCEPTED THE CLAIM OF ASSESSEE, ESPECIALLY SINCE THE RETURN WAS FILED ONL Y ON 20.09.10. ITA. 1997 /MDS12 CO NO.196/MDS/12/ 4 AS AGAINST THIS, ASSESSEE IN ITS CROSS OBJECTION SU BMITS THAT ORDER OF THE CIT(A) WHEREBY ASSESSEE WAS GRANTED DE DUCTION UNDER SECTION 80-IA OF THE ACT STOOD ALREADY AMENDE D AND THE APPEAL OF ASSESSEE IN THIS REGARD WAS DISMISSED BY THE CIT(A). 5. WHEN THE APPEAL WAS TAKEN UP FOR HEARING, NOBODY APPEARED ON BEHALF OF THE ASSESSEE. LD. D.R WAS H EARD. 6. WE HAVE PERUSED THE ORDERS OF THE CIT(A) AND AL SO HEARD THE CONTENTION OF THE LD. D.R. WE FIND THAT THE AS SESSEE WHILE FILING THE E-RETURN HAD NOT CLAIMED ANY DEDUCTION U NDER CHAPTER- VI A OF THE ACT. ASSESSEE HAD PROFIT AND GAINS OF ` 5,20,46,943/-. ALONG WITH SALARIES AND INCOME FROM OTHER SOURCES, THE GROSS TOTAL INCOME OF ASSESSEE WAS ` 5,30,23,554/-. AGAINST THE COLUMN SHOWING DEDUCTION UNDER CHAPTER-VI-A, ASSES SEE GAVE THE FIGURE OF 0 (ZERO). HOWEVER, IN THE COLUMN SHOWING THE TOTAL INCOME ` 9,76,612/- WAS SHOWN VIZ. AFTER DEDUCTING ` 5,20,46,943/- FROM THE GROSS TOTAL INCOME OF ` 5,30,23,554/-. A READING OF THE PRINT OUT OF THE E-RETURN OF THE ASS ESSEE CLEARLY SHOW THAT THERE WAS AN ATTEMPT TO MISLEAD THE DEPAR TMENT. ASSESSEE AFTER WORKING OUT CORRECT TAX DUES OF ` 1,86,52,486/-, SHOWED TAXES PAID AS ` 1,84,50,438/-. HOWEVER, THE BREAK-UP OF ITA. 1997 /MDS12 CO NO.196/MDS/12/ 5 THE TAXES PAID IN THE E-RETURN CLEARLY PROVE THAT T HERE WERE NO ADVANCE TAX AND NO TAX COLLECTED AT SOURCE. THE O NLY AMOUNTS THAT COULD BE TREATED AS PAID WERE TAX DEDUCTED AT SOURCE OF ` 1,18,418 AND SELF-ASSESSMENT TAX OF ` 83,630/- IN SUCH A SITUATION, WE CANNOT SAY THAT APPLICATION FOR RECTI FICATION FILED BY THE ASSESSEE FOR GRANTING IT DEDUCTION OF ` 5,20,46,943/- UNDER SECTION 80-IB WAS UNJUSTLY REJECTED BY THE ASSESSIN G OFFICER. ASSESSEE HAD PREFERRED NO SUCH CLAIM IN ITS RETURN AT ALL. THIS SEEMS TO BE THE RIGHT DECISION TAKEN BY THE ASSESSI NG OFFICER. ON THE OTHER HAND, CIT(A) HAD ACCEPTED THE CLAIM OF ASSESSEE GOING INTO THE MERITS WHEN THE RECTIFICATION WAS RE JECTED BY THE A.O. BASED ON THE FIGURES GIVEN IN THE E-RETURN FI LED BY THE ASSESSEE. IN ANY CASE, CIT(A) ON 16.10.12 REALIZIN G HIS MISTAKE, RECTIFIED THE EARLIER APPELLATE ORDER, DISMISSING THE APPEAL FILED BY THE ASSESSEE AGAINST THE REJECTION OF PETITION BY T HE ASSESSING OFFICER. THUS, AS MATTER STANDS NOW, THERE IS NO O RDER OF THE CIT(A) DATED 03.08.12 IN THE EYES OF LAW. HENCE AP PEAL FILLED BY THE REVENUE HAS BECOME INFRUCTUOUS. SINCE THE CROS S OBJECTION OF THE ASSESSEE IS ONLY TO POINT OUT THE FACTUM OF WITHDRAWAL OF THE EARLIER ORDER BY THE CIT(A), IT IS ONLY A CLARIFICA TION, THUS NEEDING NO SPECIFIC ADJUDICATION. ITA. 1997 /MDS12 CO NO.196/MDS/12/ 6 7. IN THE RESULT BOTH APPEAL OF REVENUE AND CROS S OBJECTION OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 7 TH FEBRUARY, 2013 AT CHENNAI SD/- SD/- (VIKAS AWASTHY) (ABRAHAM P GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED 7 TH FEBRUARY, 2013. K S SUNDARAM COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE ITA. 1997 /MDS12 CO NO.196/MDS/12/ 7 ITA. 1997 /MDS12 CO NO.196/MDS/12/ 8