Shri Bharat R. Patel, Ahmedabad V. ITO, Ward-1(2)(1), Ahmedabad

ITA 1173/AHD/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 4923 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 08-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N K GOYAL
• Assessee Lawyers: AMAN SHAH A RS
• Keywords: Business income; Depreciation; Period of limitation; Time period of passing order; Condonation of delay
• Section: 143(1); 201

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD , JUDICIAL MEMBER ./ I.T.A. NOS. 1173 & 1174/AHD/2018 ( ASSESSMENT YEARS : 2011-12 & 2012-13) BHARAT R. PATEL C/O KETAN H. SHAH, ADVOCATE 512, TIMES SQUARE -1, OPP. RAM BAUG BUNGALOW, THALTEJ SHILAJ ROAD, THALTEJ, AHMEDABAD / VS. INCOME TAX OFFICER WARD 1(2)(1), AHMEDABAD ./ ./ PAN/GIR NO. : AAWPP5512C ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI KETAN SHAH & SHRI AMAN SHAH, A.RS. / RESPONDENT BY : SHRI N. K. GOYAL, SR.D.R. DATE OF HEARING 20/02/2020 !'# / DATE OF PRONOUNCEMENT 21/02/2020 / O R D E R PER PRADIP KUMAR KEDIA - AM: THESE CAPTIONED APPEALS HAVE BEEN FILED AT THE INST ANCE OF THE ASSESSEE AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-10, AHMEDABAD (CIT(A) IN SHORT), DATED 27.04.2018 ARISING IN THE ASSESSMENT ORDERS DATED 20.02.2013 & 24.07.2 013 PROCESSED BY THE CENTRALIZED PROCESSING CENTER (CPC) UNDER S. UN DER S. 143(1) AND ITA NOS. 1173 & 1174/AHD/18 [BHARAT R. PATEL VS. ITO] A.YS. 2011-12 & 2012-13 - 2 - THEREAFTER UNDER S.154 OF THE INCOME TAX ACT, 1961 (THE ACT); RESPECTIVELY CONCERNING AYS. 2011-12 & 2012-13. 2. THE GRIEVANCES RAISED BEING COMMON, BOTH CASES W ERE HEARD TOGETHER AND DISPOSED OF BY WAY OF THE COMMON ORDER . ITA NO. 1173/AHD/2018 AY 2011-12 3. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE FOR AY 2011-12 IS REPRODUCED HEREUNDER: 1. THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AN D ON FACTS IN NOT ALLOWING THE CONDONATION OF DELAY AND SIMULTANEOUSL Y ALSO ERRED IN NOT DECIDING THE APPEAL ON THE MERITS. 2. IT IS PRAYED THAT SINCE ALL THE FACTS WERE ALREA DY ON RECORD BEFORE LOWER AUTHORITY AND THEREFORE THE HON'BLE IT AT MAY DECIDE THE CASE ON THE MERITS OF THE MATTER THEREBY TO DELETE THE ADJUSTMENT MADE IN THE INTIMATION U/S.143(1). 3. THE LEARNED C.I.T.(APPEALS) HAS ERRED IN LAW AND ON FACTS IN NOT APPRECIATING THE FACTS THAT THE SO-CALLED ADJUSTMEN T MADE IN THE INTIMATION U/S.143(1) DATED 09.09.2011 CANNOT BE SU BJECTED TO PRIMA FACIE ADJUSTMENT, AND THEREFORE, HE OUGHT TO HAVE CONSIDERED THE WRITTEN SUBMISSION DATED 18.04.2018 THEREBY TO ALLOW THE CLAIM AS MADE IN THE RETURN. 3. WHEN THE MATTER WAS CALLED FOR HEARING, THE L EARNED AR FOR THE ASSESSEE POINTED OUT THAT THE DISPUTE REVOLVES AROU ND NON CONSIDERATION OF DEDUCTION CLAIMED BY THE ASSESSEE AMOUNTING TO R S.5,80,102/- UNDER S.54B OF THE ACT IN THE RETURN OF INCOME WHILE PROC ESSING THE INTIMATION BY THE CENTRALIZED PROCESSING CENTER (CPC). IN ELA BORATION, THE LEARNED AR FOR THE ASSESSEE SUBMITTED THAT THE RETURN OF IN COME WAS E-FILED FOR AY 2011-12 WHEREIN THE ASSESSEE HAS SHOWN BUSINESS INCOME OF RS.9,03,244/- AS WELL AS LONG TERM CAPITAL GAIN AMO UNTING TO RS.5,80,102/-. THE ASSESSEE CLAIMED DEDUCTION OF E QUIVALENT AMOUNT UNDER S.54B OF THE ACT OUT OF LONG TERM CAPITAL GAI N. THE INTIMATION UNDER S.143(1) OF THE ACT WAS PROCESSED ON 09.09.20 11 WHEREIN THE CLAIM UNDER S.54B OF THE ACT OF RS.5,80,102/- WAS NOT CAP TURED BY THE CPC AND CONSEQUENTLY THE TAXABLE INCOME WAS INFLATED TO THE AFORESAID EXTENT. NO ITA NOS. 1173 & 1174/AHD/18 [BHARAT R. PATEL VS. ITO] A.YS. 2011-12 & 2012-13 - 3 - REASONS WERE ASSIGNED FOR NON-CONSIDERATION OF CLAI M UNDER S.54B OF THE ACT. CONSEQUENTLY, THE ASSESSEE MOVED APPLICATION UNDER S.154 OF THE ACT SEEKING RECTIFICATION OF APPARENT MISTAKE BOTH MANUALLY AS WELL AS THROUGH E-FILING. THE CPC, BANGALORE DID NOT RECTI FY THE MISTAKE IN NOT ADMITTING THE CLAIM OF DEDUCTION UNDER S.54B OF THE ACT WITHOUT ANY PLAUSIBLE REASON. THE LEARNED AR POINTED OUT THAT THE CIT(A) HAS ALSO REJECTED THE CLAIM OF THE ASSESSEE IN FIRST APPEAL ON THE GROUND OF DELAY IN FILING THE APPEAL. THE LEARNED AR SUBMITTED THA T THE DELAY HAS OCCURRED DUE TO RECTIFICATION PROCESS PRESENT UNDER S.154 OF THE ACT COUPLED WITH BONAFIDE OMISSION. THE LEARNED AR FUR THER SUBMITTED THAT THE ASSESSEE HAS A PRIMA FACIE CASE ON MERITS AND THEREFORE NO MALAFIDE CAN BE INFERRED FOR DELAY IN FILING APPEAL BEFORE T HE CIT(A). ON MERITS, THE LEARNED AR POINTED OUT THAT THE CLAIM OF DEDUCT ION MADE UNDER VARIOUS SECTIONS IS REQUIRED TO BE ALLOWED UNDER S. 143(1) OF THE ACT WITHOUT ANY ADJUSTMENT AS THERE IS NO PROVISION FOR FILING DOCUMENTARY EVIDENCES BY THE ASSESSEE TO SUPPORT THE CLAIM. TH E LEARNED AR POINTED OUT THAT IN CASE THE DEPARTMENT WANTS TO VERIFY THE CORRECTNESS OF THE CLAIM OF DEDUCTION, THE ONLY COURSE OPEN TO THE DEP ARTMENT IS TO SELECT THE CASE FOR SCRUTINY ASSESSMENT BY ISSUANCE OF NOT ICE UNDER S.143(2) OF THE ACT WITHIN THE STIPULATED LIMITATION PERIOD. T HE DEPARTMENT HAS NOT ISSUED ANY SUCH NOTICE AND THEREFORE, THE CLAIM OF THE ASSESSEE REQUIRES TO BE ACCEPTED UNDER S.143(1) OF THE ACT WITHOUT AN Y DEMUR. 4. WE FIND COMPLETE MERIT IN THE AFORESAID PLEA ON BEHALF OF THE ASSESSEE. THE ARGUMENTS OF THE ASSESSEE ARE IN CON SONANCE WITH THE PROCEDURE LAID DOWN IN THIS REGARD. IN ABSENCE OF ANY OBLIGATION TO THE ASSESSEE TO PLACE DOCUMENTARY EVIDENCES WHILE E-FIL ING THE RETURN OF INCOME, THE ADJUSTMENTS/DENIAL OF DEDUCTION OF UNDE R S.54B OF THE ACT IS WHOLLY UNTENABLE. THE DEPARTMENT HAS NOT AVAILED T HE STATUTORY COURSE AVAILABLE TO IT UNDER S.143(2) OF THE ACT OR UNDER ANY OTHER PROVISIONS OF THE ACT TO VERIFY THE CORRECTNESS OF CLAIM. THE DE NIAL OF DEDUCTION UNDER S.54B OF THE ACT IS THUS UNCALLED FOR UNDER S.143(1 ) OF THE ACT. 5. IN THE RESULT, APPEAL OF THE ASSESSEE FOR AY 201 1-12 IS ALLOWED. ITA NOS. 1173 & 1174/AHD/18 [BHARAT R. PATEL VS. ITO] A.YS. 2011-12 & 2012-13 - 4 - ITA NO. 1174/AHD/2018 AY 2012-13 6. IN THE CAPTIONED APPEAL, THE DEPRECIATION CLAIME D BY THE ASSESSEE WAS STATED TO BE REDUCED TO THE EXTENT OF RS.2,44,5 48/-. FOR THE SIMILARITY OF REASON, WE HOLD THAT SUCH ADJUSTMENT IS ALSO BEYOND THE SCOPE OF PROVISIONS OF SECTION 143(1) OF THE ACT. 7. IN THE RESULT, APPEAL OF THE ASSESSEE FOR AY 201 2-13 IS ALLOWED. 8. IN THE COMBINED RESULT, ASSESSEES BOTH APPEALS ARE ALLOWED. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMAR K EDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 21/02/2020 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 21/02/2020