Dr.S.F.V.Selvaraj, CHENNAI V. ACWT, CHENNAI

CO 68/CHNY/2017

• Counselvise Citation: [2017] 119 COUNSELVISE.COM (IT) 3422 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: G BASKAR
• Keywords: Revised return
• Section: 15

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: CHENNAI , ! . , ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER , AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER WTA NOS.18 TO 22/MDS/2017 /ASSESSMENT YEARS: 2007-08 TO 2011-12 THE ASST. COMMISSIONER OF WEALTH TAX, CENTRAL CIRCLE-2(4), 46, NUNGAMBAKKAM HIGH ROAD, CHENNAI-34. VS. DR.S.F.V.SELVARAJ, OLD NO.11, NEW NO.22, 5 TH STREET, DR. THIRUMOORTHY NAGAR, NUNGAMBAKKAM, CHENNAI-600 034. [PAN: AASPS 5404 L ] ( % /APPELLANT) ( &'% /RESPONDENT) CROSS-OBJECTION NOS.68 TO 72/MDS/2017 /ASSESSMENT YEARS: 2007-08 TO 2011-12 DR.S.F.V.SELVARAJ, OLD NO.11, NEW NO.22, 5 TH STREET, DR. THIRUMOORTHY NAGAR, NUNGAMBAKKAM, CHENNAI-600 034. VS. THE ASST. COMMISSIONER OF WEALTH TAX, CENTRAL CIRCLE- 2(4), 46, NUNGAMBAKKAM HIGH ROAD, CHENNAI-34. [PAN: AASPS 5404 L ] ( % /APPELLANT) ( &'% /RESPONDENT) ASSESSEE BY : MR.G.BASKAR, ADV. DEPARTMENT BY : MR.AR.V.SREENIVASAN, JCIT ) /DATE OF HEARING : 16.08.2017 ) /DATE OF PRONOUNCEMENT : 16.08.2017 WTA NOS.18 TO 22/MDS/2017 & CO NOS.68 TO 72/MDS/2017 :- 2 -: / O R D E R PER GEORGE MATHAN , JUDICIAL MEMBER : WTA NOS.18 TO 22/MDS/2017 ARE APPEALS FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF WEALTH TAX (AP PEALS)-18, CHENNAI, IN WTA NOS.940 TO 944/15-16 DATED 10.01.2017 FOR TH E AYS 2007-08, 2008-09, 2009-10, 2010-11 & 2011-12 AND CO NOS.68 T O 72/MDS/2017 ARE CROSS-OBJECTIONS ARE FILED BY THE ASSESSEE FOR THE SAME AYS. 2. MR.AR.V.SREENIVASAN, JCIT REPRESENTED ON BEHALF OF THE REVENUE AND MR.G.BASKAR, ADV. REPRESENTED ON BEHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LD.DR THAT THE ASSESSEE THOUGH LIABLE FOR FILING WEALTH TAX RETURNS HAD NOT FILED HIS WT RETU RNS WITHIN THE DUE DATE. CONSEQUENTLY, NOTICE U/S.17 WAS ISSUED TO THE ASSES SEE AND THE RETURNS OF WEALTH WERE FILED. THE ONLY ISSUE IN THE APPEALS W AS AGAINST THE LEVY OF INTEREST U/S.17B OF THE ACT. IT WAS A SUBMISSION TH AT THE NET WEALTH RETURNS FILED BY THE ASSESSEE WAS ACCEPTED. HOWEVE R, INTEREST U/S.17B(1) FOR THE AYS 2007-08 & 2008-09 WAS LEVIED AND INTERE ST U/S.17B(3) FOR THE AYS 2009-10, 2010-11 & 2011-12 WAS LEVIED. IT WAS A SUBMISSION THAT THE LD.CIT(A) HAD DELETED THE INTEREST LEVIED U/S.1 7B BY HOLDING THAT THE ASSESSEE HAVING NOT FILED HIS RETURN WITHIN THE DUE DATE AS PROVIDED IN SEC.14 AND WITHIN THE TIME AS PROVIDED IN SEC.15 HA D TO FILE THE RETURN ONLY AFTER ISSUANCE OF NOTICE U/S.17 OF THE ACT AND CONSEQUENTLY, THE DELAY IN FILING OF THE RETURN ON ACCOUNT OF THE INABILITY OF THE ASSESSEE TO FILE THE WTA NOS.18 TO 22/MDS/2017 & CO NOS.68 TO 72/MDS/2017 :- 3 -: RETURN ON ACCOUNT OF THE NON-AVAILABILITY OF A STAT UTORY PROVISION FOR THE PURPOSE OF FILING A BELATED RETURN COULD NOT BE HEL D AGAINST THE ASSESSEE. 4. THE LD.DR SUBMITTED THAT THE LEVY OF INTEREST U/ S.17B WAS COMPENSATORY. HE PLACED RELIANCE ON THE DECISION O F THE CO-ORDINATE BENCH OF THIS TRIBUNAL, BANGALORE BENCHES IN THE CA SE OF SMT.M.R. PRABHAVATHY V. ACIT REPORTED IN 80 ITD 520 (BANG.) WHEREIN IT HAS BEEN HELD AS FOLLOWS: 9. FROM THE ABOVE, IT IS CLEAR THAT INTEREST UNDER SECTION 17B IS ATTRACTED IN A CASE WHERE THE RETURN OF NET WEALTH IS FURNISHED AFTER THE DUE DATE OR WHERE NO SUCH RETURN IS FILED BEFORE THE COMPLETION OF THE ASSESSMENT. IN THE PRE SENT CASE, THE ASSESSEES DID FILE THE RETURN OF NET WEALTH ON 15.2.1994 AS AGAINST THE DU E DATE OF 30 TH JUNE, 1991. THUS, APPARENTLY, THERE IS A DELAY IN FILING THE RETURNS. THE ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT SINCE THE RETURNS WERE CONSIDERED NON EST IN LAW, THEY DO NOT COME WITHIN THE PURVIEW OF SECTION L7B(1) DOES NOT HOLD W ATER. SUB-SECTION (3) OF SECTION L7B IS ATTRACTED ONLY IN A CASE WHERE ASSESSMENT HAS BEEN DONE ORIGINALLY AND RETURN IS FILED SUBSEQUENTLY IN PURSUANCE OF NOTICE UNDER SECTION 1 7. NO DOUBT SUB-SECTION (3) DOES NOT APPLY TO THE FACTS OF THE CASE AS IN THE PRESENT CA SES ASSESSMENTS HAVE BEEN DONE FOR THE FIRST TIME AND, THEREFORE, WE HAVE TO SEE THE APPLI CABILITY OF SUB-SECTION (1) OF SECTION 17B WHICH ENVISAGES THE FOLLOWING SITUATIONS: (I) RETURN IS FURNISHED AFTER THE DUE DATE UNDER SUB-SE CTION (1) OF SECTION 14; (II) RETURN IS FURNISHED AFTER THE DUE DATE UNDER SECTIO N 15; (III) RETURN IS FURNISHED AFTER THE DUE DATE IN RESPONSE TO NOTICE UNDER SECTION 16(4)(M); (IV) WHERE NO RETURN IS FILED BEFORE COMPLETION OF ASSES SMENT. SECTION 14(1) DEALS WITH VOLUNTARY FILING OF THE RET URN ON THE PART OF THE ASSESSEE, FOR WHICH A DUE DATE HAS BEEN PRESCRIBED. SECTION 15 DEALS WI TH A CASE WHERE THE ASSESSEE WANTS TO FILE A RETURN WHERE HE HAS NOT FURNISHED A RETURN U NDER SECTION 14(1) OR 16(4) OR WHERE HE WANTS TO FILE A REVISED RETURN WHEN THE EARLIER RET URN IS FOUND TO HAVE ANY OMMISSION OR MISTAKE. SECTION L6(4)(I) COMES INTO PLAY WHEN THE A SSESSING OFFICER CALLS UPON THE PERSON TO FILE A RETURN OF WEALTH WHEN THERE IS AN OMISSIO N TO FILE THE RETURN UNDER SECTION 14(1). SECTION 17 DEALS WITH A CASE OF REOPENING OF ASSESS MENT IN CASE OF ESCAPEMENT OF NET WEALTH FOR ASSESSMENT OR A FRESH ASSESSMENT FOR AN ASSESSMENT YEAR FOR WHICH THE NORMAL TIME FOR ASSESSMENT HAS ELAPSED. SECTION 17 INTER C ILIA PROVIDES THAT THE PROVISIONS OF THE WT ACT, 1957 SHALL, SO FAR AS MAY BE, APPLY AS IF T HE RETURN FILED UNDER THE SECTION WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 14. E XPLANATION 3 UNDER SECTION L7B(1) MAKES IT CLEAR THAT WHERE IN RELATION TO AN ASSESSMENT YE AR AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 17, THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PURPOSE OF THIS SECTION. 5. IT WAS A SUBMISSION THAT FOR THE AYS 2007-08 & 2 008-09, THE ORDER OF THE LD.CIT(A) WAS LIABLE TO BE REVERSED. IN RES PECT OF THE AYS 2009-10, WTA NOS.18 TO 22/MDS/2017 & CO NOS.68 TO 72/MDS/2017 :- 4 -: 2010-11 & 2011-12, IT WAS A SUBMISSION THAT THE LD. CIT(A) HAD RESTRICTED THE LEVY OF INTEREST U/S.17B BY HOLDING THAT THE AS SESSEE HAD FILED HIS ORIGINAL RETURNS WITHIN THE DUE DATE. IT WAS A SUB MISSION THAT THE FILING OF THE RETURNS WITHIN THE DUE DATE WAS NOT AVAILABLE W ITH THE AO. IT WAS A SUBMISSION THAT THE ORDER OF THE LD.CIT(A) WAS LIAB LE TO BE REVERSED. 6. IN REPLY, THE LD.AR SUBMITTED THAT THE ASSESSEE COULD NOT BE ASKED TO DO THE IMPOSSIBLE. IT WAS A SUBMISSION THAT ADM ITTEDLY THE WEALTH TAX RETURNS HAD NOT BEEN FILED AS PER THE DUE DATE PROV IDED IN SEC.14(1) OR IN SEC.15. IT WAS A SUBMISSION THAT THE TIME LIMIT HA VING EXPIRED, THERE WAS NO PROVISION FOR THE ASSESSEE TO FILE HIS RETURNS B EYOND THE DUE DATE. IT WAS A SUBMISSION THAT CONSEQUENTLY, THE ASSESSEE HA D TO AWAIT THE ISSUANCE OF NOTICE U/S.17 OF THE ACT. IT WAS A SUB MISSION THAT THE PERIOD BETWEEN THE DUE DATE FOR FILING OF THE RETURNS AND THE DATE OF ISSUANCE OF NOTICE U/S.17 SHOULD BE EXCLUDED, IN SO FAR AS SUCH DELAY WAS NOT ON ACCOUNT OF FAILURE ON THE PART OF THE ASSESSEE, AS THE ASSESSEE COULD NOT DO THE IMPOSSIBLE. IN RESPECT OF THE AYS 2009-10, 2010-11 & 2011-12, THE LD.AR PLACED BEFORE US, THE COPIES OF THE ORIGI NAL RETURNS FILED. HE VEHEMENTLY SUPPORTED THE ORDER OF THE LD.CIT(A). I T WAS A FURTHER SUBMISSION THAT IN THE CROSS-OBJECTION, THE ASSESSE E HAS ONLY SUPPORTED THE ORDER OF THE LD.CIT(A). IT WAS A PRAYER THAT T HE ORDER OF THE LD.CIT(A) BE UPHELD. WTA NOS.18 TO 22/MDS/2017 & CO NOS.68 TO 72/MDS/2017 :- 5 -: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IN RE SPECT OF THE AYS 2007-08 & 2008-09, THE FILING OF THE RETURN OF WEAL TH IS MANDATORY DUTY ON THE ASSESSEE ONCE THE NET WEALTH EXCEEDS THE PRE SCRIBED LIMIT. JUST BECAUSE, THE DUE DATE FOR FILING OF THE WEALTH TAX RETURNS EXPIRE AND THE ASSESSEE HAD NOT FILED HIS RETURN WITHIN THE DUE DA TE, IT CANNOT BE SAID THAT THE ASSESSEE IS EXEMPTED FROM THE LEVY OF INTE REST U/S.17B IN RESPECT OF THE PERIOD BETWEEN THE DUE DATE AND THE DATE OF THE NOTICE U/S.17. THE LEVY OF INTEREST U/S.17B IS ADMITTEDLY COMPENSATORY IN NATURE. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SMT.M.R. PRABHAVATHY V . ACIT REFERRED TO SUPRA, THE ORDER OF THE LD.CIT(A) ON THIS ISSUE STA NDS REVERSED AND THAT OF THE AO RESTORED. IN THESE CIRCUMSTANCES, APPEALS O F THE REVENUE IN WTA NOS.18 & 19/MDS/2017 STANDS ALLOWED. 8. IN RESPECT OF THE AYS 2009-10, 2010-11 & 2011-12 , IT IS NOTICED THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME WITHIN THE DUE DATE. THE REVENUE HAS NOT BEEN ABLE TO DISPUTE THIS FACT. EV EN CONSIDERING THE SUBMISSION OF THE LD.DR THAT THE RETURN WAS NOT BEF ORE THE AO, THE SAME WOULD NOT STAND, IN SO FAR AS, THAT IS NOT THE GROU ND RAISED BY THE REVENUE. IN THESE CIRCUMSTANCES, RESPECTFULLY FOLL OWING THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF S MT.M.R. PRABHAVATHY V. ACIT REFERRED TO SUPRA, THE ORDER OF THE LD.CIT(A) FOR THE AYS 2009-10, 2010-11 & 2011-12 STANDS CONFIRMED. WTA NOS.18 TO 22/MDS/2017 & CO NOS.68 TO 72/MDS/2017 :- 6 -: 9. IN THE RESULT, APPEALS OF THE REVENUE IN WTA NOS .20, 21 & 22 STANDS DISMISSED. 10. CROSS-OBJECTIONS FILED BY THE ASSESSEE ARE IN S UPPORT OF THE ORDER OF THE LD.CIT(A). WE HAVE ALREADY REVERSED THE ORDER OF THE LD.CIT(A) FOR THE AYS 2007-08 & 2008-09 AND CONFIRMED THE ORDER O F THE LD.CIT(A) FOR THE AYS 2009-10, 2010-11 & 2011-12. IN THESE CIRCUM STANCES, CROSS- OBJECTIONS FILED BY THE ASSESSEE ARE INFRUCTUOUS AN D CONSEQUENTLY DISMISSED AS INFRUCTUOUS. 11. IN THE RESULT, WTA NOS.18 & 19/MDS/2017 STANDS ALLOWED AND WTA NOS.20 TO 22/MDS/2017 STANDS DISMISSED AND CO NOS.6 8 TO 72/MDS/2017 STANDS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON AUGUST 16, 2 017, AT CHENNAI. SD/- SD/- ( . ) ( A. MOHAN ALANKAMONY ) ! /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER /CHENNAI, / /DATED: AUGUST 16, 2017. TLN ) &12 32 /COPY TO: 1. % /APPELLANT 4. 4 /CIT 2. &'% /RESPONDENT 5. 2 & /DR 3. 4 ( ) /CIT(A) 6. /GF