Asst.C.I.T., Bangalore V. M/s MOdel Diary Farm, Bangalore

ITA 1005/BANG/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4594 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 01-06-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 17-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: PRATIBHA
• Keywords: Depreciation; Revised return
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER ITA NO. 1005 /BANG/201 6 ASSESSMENT YEAR : 20 1 2 - 1 3 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1(2)(1), BENGALURU. VS. M/S. MODEL DIARY FARM, NO. 28, MADHAVANAGAR, YAMUNA BAI ROAD, BENGALURU 560 001. PAN : AA JFM 5045 J APPELLANT RESPONDENT REVENUE BY : DR. P. V. PRADEEP KUMAR , ADDL. CIT ASSESSEE BY : SMT. PRATIBHA , ADVOCATE DATE OF HEARING : 24 . 0 4 .201 8 DATE OF PRONOUNCEMENT : 15 . 0 6 .201 8 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A), INTERALIA , ON FOLLOWING GROUNDS: 1. THE ORDER OF THE LEARNED CIT (APPEALS), IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF REVENUE, IS OPPOSED TO LAW AND THE FACTS AND CIRCUMSTANCES OF THE CASE. 2. THE LEARNED CIT(A) ERRED IN HOLDING THE REVISED RETURN OF INCOME AS VALID THOUGH THE ORIGINAL RETURN OF INCOME WAS FILED BELATEDLY, ON THE PRETEXT THAT THE LAST DATE OF FILING OF RETURN OF INCOME IE., 30.09.2012, WAS A GENERAL HOLIDAY AND HENCE, IT WAS FILED ON THE NEXT WORKING DAY IE., 01.10.2012, TAKING SUPPORT OF BOARD'S CIRCULAR NO.639 DATED 13.11.1992 AND THE DECISION OF ITAT, AHMEDABAD IN THE CASE OF ASPI GINWALA & ORS. IN 52 SOT0016 [2012], WITHOUT APPRECIATING THAT THE CONDITIONS STIPULATED THEREIN, DOES NOT APPLY TO RETURNS FILED ELECTRONICALLY, WHICH IS MANDATORY CONDITION TO THE ASSESSEE AS PER THE PROVISIONS OF SECTION 44AB. THE LEARNED CIT(A) ERRED IN FURTHER ITA NO. 1005/BANG/2016 PAGE 2 OF 5 GIVING RELIEF TO THE ASSESSEE W.R.T. DEPRECIATION WRONGLY CLAIMED IN THE ORIGINAL RETURN AS WELL AS THE ADVANCE TAX CLAIM MADE. 3. THE LEARNED CIT(A) ERRED IN ALLOWING RELIEF W.R.T. EXPENDITURE MADE IN CASH WITHOUT APPRECIATING THAT THE ASSESSEE COULD NOT ESTABLISH THE SAME IN THE FORM OF SUPPORTING DOCUMENTS LIKE PROPER BILLS/ VOUCHERS ETC. 4. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS HUMBLY PRAYED THAT THE ORDER OF THE CIT(A) BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER, TO AMEND OR DELETE ANY OF THE GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING OF APPEAL. 2. DURING THE COURSE OF HEARING, OUR ATTENTION WAS INVITED TO THE FACT THAT RETURN WAS DUE ON 30.09.2012 AND THE SAME WAS FILED ON 01.10.2012 I.E., ON MONDAY, SINCE 30.09.2012 WAS A HOLIDAY BEING SUNDAY. THE AO TREATED THE RETURN AS FILED LATE AND NOT WITHIN THE PERIOD SPECIFIED UNDER SECTION 139(1) OF THE ACT. IN APPEAL BEFORE THE CIT(A), THE ASSESSEE HAS PLACED RELIANCE UPON THE BOARDS CIRCULAR NO.639 DATED 13.11.1992 THROUGH WHICH IT HAS BEEN MADE CLEAR THAT IF THE LAST DATE OF THE FILING OF THE RETURN OF INCOME/LOSS HAPPENS TO BE A HOLIDAY ON WHICH DATE THE OFFICE IS CLOSED THEN THE RETURN OF INCOME/LOSS CAN BE FILED ON THE NEXT DAY WHEN THE OFFICE FUNCTIONS AND SUCH RETURNS WILL BE CONSIDERED TO HAVE BEEN FILED WITHIN THE TIME SPECIFIED UNDER SECTION 139(1) OF THE ACT. IT WAS ALSO CONTENDED BEFORE THE CIT(A) THAT AFTER TREATING THE ORIGINAL RETURN FILED BY THE ASSESSEE AS BELATED, THE AO HAS NOT CONSIDERED THE REVISED RETURN TO BE VALID REVISED RETURN FOR THE PURPOSE OF COMPLETING THE ASSESSMENT AND HE ACCORDINGLY MADE AN ADDITION ON ACCOUNT OF DISALLOWANCE ON DEPRECIATION OF RS.12,84,348/-. IT WAS FURTHER CONTENDED BEFORE THE CIT(A) THAT ONCE THE ORIGINAL RETURN IS CONSIDERED TO BE FILED IN TIME, THE REVISED RETURN FILED WITHIN THE DUE DATE AS PRESCRIBED UNDER SECTION 139(4) OUGHT TO HAVE BEEN CONSIDERED AND ASSESSMENT OUGHT TO HAVE BEEN FRAMED ON THE BASIS OF THE REVISED RETURN. BUT THE AO DID NOT TAKE COGNIZANCE OF THE REVISED RETURN AND MADE CERTAIN ADDITIONS ON THE BASIS OF THE ORIGINAL RETURN AFTER TREATING IT TO BE BELATED RETURN. ITA NO. 1005/BANG/2016 PAGE 3 OF 5 3. THE CIT(A) EXAMINED THE ENTIRE ISSUE IN DETAIL IN THE LIGHT OF BOARDS CIRCULAR AND THE ORDER OF THE TRIBUNAL IN THE CASE OF ASPI GINWALA & ORS. IN 52 SOT0016 [2012] AND SECTION 10 OF THE GENERAL CLAUSES ACT, 1897 AND THE CIT(A) HAS HELD THAT THE RETURN FILED IS A VALID RETURN AS IT WAS FILED DURING THE TIME PRESCRIBED UNDER SECTION 139(1) OF THE ACT. THEREFORE, THE REVISED RETURN SHOULD BE A VALID REVISED RETURN IN WHICH THE CORRECT DEPRECIATION HAS BEEN CLAIMED BY THE ASSESSEE. THEREFORE, THE ADDITION ON ACCOUNT OF DIFFERENCE IN DEPRECIATION WAS DELETED BY THE CIT(A). 4. NOW THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL WITH THE SUBMISSION THAT THE RETURNS ARE TO BE FILED ONLINE THEREFORE HE ASSESSEE CANNOT TAKE A STAND THAT LAST DATE OF FILING OF THE RETURN WAS A HOLIDAY AND HE COULD NOT FILE THE RETURN OF INCOME. SINCE THE RETURN WAS FILED ON 01.10.2012, IT IS BELATED RETURN AND AO HAS RIGHTLY IGNORED THE REVISED RETURN THOUGH FILED WITHIN THE PERIOD SPECIFIED UNDER SECTION 139(4) OF THE ACT. 5. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER HAND HAS CONTENDED THAT THIS IS THE FIRST YEAR WHEN THE ASSESSEE IS REQUIRED TO FILE THE RETURN ONLINE AND IT WAS NOT CLARIFIED BY THE BOARD OR THE REVENUE AUTHORITIES WHETHER THE TIME WOULD BE EXTENDED IF THE LAST DATE OF FILING OF RETURN FALLS TO BE ON A HOLIDAY. IT HAS BEEN CLARIFIED THROUGH BOARDS CIRCULAR NO.639 DATED 13.11.1992 ON WHICH THE CIT(A) HAS PLACED HEAVY RELIANCE AND ALSO THROUGH SECTION 10 OF THE GENERAL CLAUSES ACT, 1897 AND THE ORDER OF THE TRIBUNAL IN THE CASE OF ASPI GINWALA & ORS. VS. ACIT (SUPRA) WHEREIN IT HAS BEEN CLARIFIED THAT IF THE LAST DATE OF FILING OF RETURN FALLS TO BE ON A HOLIDAY, THE RETURN CAN BE FILED ON THE NEXT WORKING DAY AND IN THE INSTANT CASE, UNDISPUTEDLY, THE LAST DATE OF FILING OF RETURN WAS 30.09.2012 WHICH IS SUNDAY AND THE NEXT WORKING DAY I.E., ON MONDAY 01.10.2012, RETURN WAS DULY FILED. THEREFORE, THE RETURN FILED BY THE ASSESSEE SHOULD BE TREATED A VALID RETURN WHICH WAS DULY REVISED BY FILING A REVISED RETURN DURING THE PERIOD SPECIFIED UNDER SECTION 139(4) OF THE ACT. THEREFORE, THE ORDER OF THE CIT(A) DESERVES TO BE CONFIRMED. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORITIES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS AND THE MATERIAL PLACED ON RECORD, WE FIND THAT UNDISPUTEDLY THE LAST DATE ITA NO. 1005/BANG/2016 PAGE 4 OF 5 OF FILING OF THE RETURN AS PER SECTION 139(1) OF THE ACT WAS 30.09.2012 AND THAT WAS A HOLIDAY BEING SUNDAY. THE RETURN WAS FILED ON 01.10.2012, THE NEXT WORKING DAY I.E., MONDAY. IT IS ALSO AN UNDISPUTED FACT THAT IT WAS MADE COMPULSORY FOR THE ASSESSEE FOR THE FIRST TIME TO FILE THE RETURN ONLINE AND FOR ONLINE FILING THERE WAS NO BARRIER OF ANY HOLIDAYS. IT CAN BE UPLOADED AT ANY POINT OF TIME. BUT IT HAS NOT BEEN MADE CLEAR TO THE PUBLIC THAT WHEN THE RETURN WAS TO BE FILED ONLINE, THE LAST DATE OF FILING OF THE RETURN WOULD NOT BE EXTENDED TO NEXT WORKING DAY THOUGH THE LAST DATE OF FILING OF RETURN IS HOLIDAY. WHEREAS IT IS A SETTLED POSITION OF LAW THROUGH VARIOUS JUDICIAL PRONOUNCEMENTS AND SECTION 10 OF GENERAL CLAUSES ACT AND ALSO BY BOARDS CIRCULAR THAT IF THE LAST DAY OF FILING OF RETURN HAPPENS TO BE A HOLIDAY, THE RETURN CAN BE FILED ON NEXT WORKING DAY. IN THE INSTANT CASE, UNDISPUTEDLY, THE RETURN WAS FILED ON THE NEXT WORKING DAY ON 01.10.2012 AS THE LAST DAY OF FILING OF RETURN HAPPENS TO BE A HOLIDAY I.E., SUNDAY. IN THE ABSENCE OF CLEAR NOTIFICATION BY THE BOARD OR THE GOVERNMENT, THE PUBLIC CANNOT BE HELD TO BE RESPONSIBLE FOR THE DELAY IN FILING OF THE RETURN ON INCOME IF IT IS FILED ON THE NEXT WORKING DAY AS THE LAST DATE OF FILING OF THE RETURN WAS A HOLIDAY. UNDER THESE CIRCUMSTANCES, WE ARE OF THE CONSIDERED OPINION THAT THE RETURN FILED ON THE NEXT WORKING DAY IF THE LAST DATE OF FILING OF RETURN HAPPENS TO BE A HOLIDAY, WOULD BE A VALID RETURN. ACCORDINGLY, WE HOLD THE RETURN FILED ON 01.10.2012 IS A VALID RETURN. IT IS ALSO AN UNDISPUTED FACT THAT REVISED RETURN WAS FILED WITHIN THE PERIOD PRESCRIBED UNDER SECTION 139(4) OF THE ACT. THEREFORE, THE ORIGINAL RETURN FILED ON 01.10.2012 IS DULY REVISED BY THE FILING THE REVISED RETURN WITHIN THE SPECIFIED PERIOD. THEREFORE, THE AO OUGHT TO HAVE BEEN CONSIDERED THE REVISED RETURN WHILE COMPLETING THE ASSESSMENT. BUT HE DID NOT DO SO. WHEREAS, THE CIT(A) HAS TAKEN COGNIZANCE OF THE REVISED RETURN AND HELD THAT THE ASSESSEE ITSELF HAS CLAIMED DEPRECIATION ON WDV IN THE REVISED RETURN. THEREFORE, THE ADDITION MADE BY THE AO IS NOT SUSTAINABLE IN THE EYES OF LAW. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) IN THIS REGARD. SO FAR AS DISALLOWANCE OF OTHER EXPENDITURES ARE CONCERNED, WE FIND THAT AO, WITHOUT POINTING OUT ANY SPECIFIC DEFECTS IN THE MAINTENANCE OF BOOKS OF ACCOUNTS, HAS MADE AD-HOC ADDITION OF RS.20,00,000/- FOR WANT OF SUPPORTING VOUCHERS. WHEREAS THE ASSESSEE HAS PRODUCED THE VOUCHERS OF VARIOUS EXPENDITURES INCURRED BY THE ASSESSEE DURING THE COURSE OF HEARING BEFORE THE CIT(A). THE CIT(A) HAS EXAMINED THE ISSUE IN THE LIGHT OF BUSINESS OF THE ASSESSEE AND THE NATURE OF ITA NO. 1005/BANG/2016 PAGE 5 OF 5 EXPENDITURE INCURRED BY IT AND KEEPING IN VIEW THE TOTALITY OF THE FACTS HE RESTRICTED ADDITIONS TO THE EXTENT OF RS.1,00,000/-. DURING THE COURSE OF HEARING, THE LEARNED DR DID NOT POINT OUT SPECIFIC EXPENDITURES WHICH REQUIRES PROPER VERIFICATION BY THE AO. THE CIT(A) HAS MENTIONED IN HIS ORDER THAT DETAILS OF EXPENDITURES, COPIES OF VOUCHERS HAVE BEEN FILED AND CONSIDERING THE NATURE OF BUSINESS, THE EXPENSES ARE MOSTLY JUSTIFIED. SINCE THE CIT(A) HAS PROPERLY EXAMINED THE ISSUE IN THE LIGHT OF EVIDENCES PLACED BEFORE HIM, WE FIND NO INFIRMITY IN HIS ORDER. WE ACCORDINGLY CONFIRM THE ORDER OF THE CIT(A) IN THIS REGARD. 7. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 15 TH JUNE, 2018. SD/- SD/- BANGALORE. DATED: 15 TH JUNE, 2018. /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SR. PRIVATE SECRETARY, ITAT, BANGALORE. (INTURI RAMA RAO) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER