M/s.EKK & Co., Perumbavoor V. ACIT, Aluva

ITA 138/COCH/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 64922 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-10-2012
• Assessment Year: 2009-2010
• Appeal Filed On: 18-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEORGE VARGHESE
• Assessee Lawyers: K K CHANDRASEKHARAN

Judgement Text

1 ITA NO. 138 & 223/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 138/COCH/2012 (ASSESSMENT YEAR 2009-10) M/S E.K.K. & CO VS THE A.C.I.T., CIR.1 MUNICIPAL BUILDINGS ALUVA PERUMBAVOOR 683 542 PAN : ABAFS2619E (APPELLANT) (RESPONDENT) I.T.A NO. 223/COCH/2012 (ASSESSMENT YEAR 2009-10) A.C.I.T., CIR.1 VS M/S E.K.K. & CO ALUVA PERUMBAVOOR-683 542 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. CHANDRASEKHARAN RESPONDENT BY : SMT. SUSAN GEORGE VARGHESE DATE OF HEARING : 11-10-2012 DATE OF PRONOUNCEMENT : 16-11-2012 2 ITA NO. 138 & 223/COCH/2012 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER AS WELL AS THE REVENUE HAS FILED THE APPEALS AGAINST THE VERY SAME ORDER OF COMMISSIONER OF INCOME-TAX(A)-II , KOCHI DATED 03-05- 2012 AND PERTAIN TO ASSESSMENT YEAR 2009-10. WE HE ARD BOTH THE APPEALS TOGETHER AND DISPOSE OF THE SAME BY THIS COMMON ORD ER. 2. SHRI K.K. CHANDRASEKHARAN, THE LD. COUNSEL FOR T HE TAXPAYER SUBMITTED THAT THE TAXPAYER FILED THE RETURN OF INCOME ELECTR ONICALLY ON 25-09-2009. ITR-V GENERATED BY COMPUTER WAS DISPATCHED TO CENTR AL PROCESSING CENTRE (CPU) AT BANGALORE BY ORDINARY POST ON 05-10-2009. COPY OF ITR-V AND THE CERTIFICATE ISSUED BY CHARTERED ACCOUNTANT SHRI P R AJKUMAR CERTIFYING THAT ITR-V WAS SENT TO CPC ON 05-10-2009 IS AVAILABLE ON THE PAPER BOOK. REFERRING TO THE CENTRALISED PROCESSING OF RETURN S CHEME, 2011 FRAMED BY THE CBDT, THE LD.COUNSEL SUBMITTED THAT THE TAXPAYE R WAS EXPECTED TO SEND THE ITR-V WITHIN 120 DAYS BY ORDINARY POST FROM THE DATE OF UPLOADING OF THE RETURN ELECTRONICALLY. ACCORDING TO THE LD.COU NSEL, THE RETURN WAS ELECTRONICALLY UPLOADED ON 25-09-2009 AND THE ITR-V WAS SENT ON 05-10- 2009, I.E. WITHIN 120 DAYS. THEREFORE, THE DATE OF FILING OF RETURN FOR ALL PRACTICAL PURPOSES HAS TO BE TAKEN AS 25-09-2009 AS PER THE SCHEME FRAMED BY THE CBDT FOR FILING OF RETURN ELECTRONICALLY. R EFERRING TO THE SCHEME FRAMED BY THE CBDT, THE LD.COUNSEL SUBMITTED THAT I F AT ALL THERE WAS ANY DELAY THE COMMISSIONER CAN CONDONE THE DELAY IN FIL ING THE FORM ITR-V IN ORDER TO AVOID HARDSHIP. THE LD.REPRESENTATIVE SUB MITTED THAT THE CPC APPEARS TO HAVE RECEIVED FORM ITR-V ON 29-11-2010. ACCORDING TO THE 3 ITA NO. 138 & 223/COCH/2012 LD.REPRESENTATIVE, THE DUTY OF THE TAXPAYER ENDS AS SOON AS ITR-V IS POSTED ORDINARILY. THEREFORE, IF AT ALL THERE WAS ANY DEL AY IN DELIVERING THE ORDINARY POST TO THE CPC, THE TAXPAYER CANNOT BE PENALIZED. ITR-V GENERATED BY COMPUTER ALSO GENERATES THE ACKNOWLEDGEMENT NUMBER AND THE DATE OF FILING. THEREFORE, FOR ALL PRACTICAL PURPOSES, THE DATE OF FILING OF RETURN OF INCOME HAS TO BE TAKEN AS 25-09-2009 AND NOT 29-11- 2010. THEREFORE, THE NOTICE ISSUED U/S 143(2) ON 06-09-2011 WAS BEYOND T HE PERIOD PROVIDED UNDER PROVISO TO SECTION 143(2). THEREFORE, THE CO NSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER IS WITHOUT JURISDICTION. 3. ON THE CONTRARY, SMT. SUSAN GEORGE VARGHESE, THE LD.DR SUBMITTED THAT AS PER THE SCHEME FRAMED BY THE CBDT THE TAXPA YER HAS TO UPLOAD THE RETURN ELECTRONICALLY WITHIN THE DUE DATE AND FORM ITR-V GENERATED BY COMPUTER HAS TO BE PHYSICALLY SIGNED AND SENT TO TH E CPC WITHIN 120 DAYS FROM THE DATE OF UPLOADING OF THE RETURN ELECTRONIC ALLY. ACCORDING TO THE LD.DR, THE PURPOSE OF ASKING THE TAXPAYER TO SEND T HE FORM ITR-V GENERATED BY COMPUTER TO CPC IS TO AUTHENTICATE THE RETURN UP LOADED BY THE TAXPAYER. IN OTHER WORDS, ACCORDING TO THE LD.DR, IF THE TAXP AYER FURNISHES INACCURATE OR WRONG PARTICULARS IN THE RETURN UPLOADED ELECTRO NICALLY THE TAXPAYER WILL BE PROSECUTED UNDER THE RELEVANT PROVISIONS OF THE ACT. FOR THAT PURPOSE TO AUTHENTICATE THE CONTENTS OF THE RETURN UPLOADED EL ECTRONICALLY, THE TAXPAYER WAS REQUIRED TO SIGN THE FORM ITR-V PHYSIC ALLY AND SEND TO CPC WITHIN 120 DAYS FROM THE DATE OF UPLOADING OF THE R ETURN ELECTRONICALLY. ACCORDING TO THE LD.DR, IF THE FORM ITR-V WAS DESPA TCHED WITHIN 120 DAYS FROM THE DATE OF UPLOADING OF THE RETURN ELECTRONIC ALLY THEN THE DATE OF 4 ITA NO. 138 & 223/COCH/2012 UPLOADING OF THE RETURN SHALL BE TREATED AS DATE OF FILING OF THE RETURN. IN ANY CASE, IF FORM ITR-V WAS NOT SENT TO THE CPC OR IT WAS NOT SENT WITHIN 120 DAYS FROM THE DATE OF UPLOADING OF THE RETURN, THEN THE RETURN UPLOADED BY THE TAXPAYER SHALL BE TREATED AS INVALID RETURN AND THE TAXPAYER IS REQUIRED TO UPLOAD THE RETURN ELECTRONICALLY ONCE AGAIN. ON A QUERY FROM THE BENCH, WHETHER THE COMPUTER AUTOMATICALLY GENERATES THE AC KNOWLEDGEMENT NUMBER AND THE DEPARTMENT COULD VIEW THE RETURN UPL OADED BY THE TAXPAYER ELECTRONICALLY, THE LD.DR FAIRLY SUBMITTED THAT THE COMPUTER AUTOMATICALLY GENERATES THE ACKNOWLEDGEMENT AND FOR M ITR-V ALSO AND THE RETURN UPLOADED COULD BE SEEN BY THE DEPARTMENT. I N THIS CASE, ACCORDING TO THE LD.DR, THOUGH THE RETURN WAS ELECTRONICALLY UPLOADED ON 25-09-2010 THE CPC RECEIVED FORM ITR-V ONLY ON 29-11-2010, THE REFORE, IT WAS RECEIVED AFTER 120 DAYS. HENCE, THE ASSESSING OFFICER TREAT ED THE RETURN AS IF IT WAS FILED ON 29-11-2010 I.E. THE DATE OF RECEIPT OF FOR M ITR-V BY THE CPC. SINCE THE TAXPAYER CLAIMED THAT FORM ITR-V WAS POSTED ON 05-10-2009 AND A CERTIFICATE WAS ALSO FILED FROM THE CHARTERED ACCOU NTANT, THIS TRIBUNAL DIRECTED THE LD.DR TO PRODUCE THE POSTAL COVER RECE IVED BY THE CPC AT BANGALORE. HOWEVER, THE DEPARTMENT COULD NOT PRODU CE THE POSTAL COVER RECEIVED BY CPC AT BANGALORE AND THE LD.DR HAS FILE D A COPY OF THE LETTER RECEIVED FROM THE CPC AT BANGALORE SAYING THAT THE ENVELOPES IN WHICH HARD COPIES OF FORM ITR-V HAS BEEN SENT TO CPC BY THE TA XPAYERS HAVE NOT BEEN PRESERVED AND IT WAS DISCARDED ON DAILY BASIS. AFT ER THE CONCLUSION OF THE ARGUMENT, THE LD.DR FILED A WRITTEN SUBMISSION SAYI NG THAT THE CBDT BY A CIRCULAR NO.3/2009 DATED 21-05-2009 HAS EXTENDED TH E TIME LIMIT FOR FILING OF FORM ITR-V UPTO 31-12-2010 OR 120 DAYS FROM THE DATE OF UPLOADING OF 5 ITA NO. 138 & 223/COCH/2012 THE RETURN WHICHEVER IS LATER. THE LD.DR HAS ALSO MENTIONED IN THE WRITTEN SUBMISSION THAT CBDT CONDONED THE DELAY IN FILING I TR-V AFTER 120 DAYS WHICH MEANS THE CBDT HAS VALIDATED THE RETURN FILED BY THE TAXPAYER ON SEPTEMBER, 2009. ACCORDING TO THE LD.DR, THE DATE OF FILING OF THE RETURN DOES NOT RELATE BACK TO DATE OF UPLOADING OF THE RE TURN IN CASE THE RETURN IN FORM ITR-V WAS NOT FILED WITHIN 120 DAYS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTED LY, AS PER THE SCHEME FRAMED BY THE CBDT, THE TAXPAYER UPLOADED THE RETUR N ELECTRONICALLY ON 25- 09-2009 BEFORE THE DUE DATE FOR FILING OF RETURN OF INCOME U/S 139(1) OF THE ACT. THOUGH THERE WAS A CONTROVERSY ON THE DATE OF DISPATCH OF FORM ITR-V THE FACT REMAINS IS THAT CPC ADMITTEDLY RECEIVED TH E FORM ITR-V ON 29-11- 2010. IN FACT, THE DEPARTMENT ADMITS THAT CPC RECE IVED THE FORM ON 29-11- 2010. THIS FACT IS ALSO ADMITTED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. BY WAY OF A WRITTEN SUBMISSION AFTER THE CO NCLUSION OF THE HEARING, THE LD.DR HAS FILED A COPY OF LETTER RECEIVED FROM THE INCOME-TAX OFFICER (H.QRS), CPC AND THE COPY OF THE FORM ITR-V RECEIVE D BY CPC AND CBDT CIRCULAR IN CIRCULAR NO.3/2009 DATED 21-05-2009. T HE INCOME-TAX OFFICER (HQRS) IN HIS LETTER DATED 22-10-2012 HAS CLARIFIED THAT IN CASE E-RETURN WAS FILED FOR THE ASSESSMENT YEAR 2009-2010 FORM ITRV W AS REQUIRED TO BE SENT TO CPC WITHIN 60 DAYS WHICH WAS FURTHER EXTENDED UP TO 31-12-2010. FOR THE PURPOSE OF CONVENIENCE, THE RELEVANT PARAGRAPH FROM THE LETTER OF THE ITO (HQRS) AT BANGALORE IS REPRODUCED BELOW: 6 ITA NO. 138 & 223/COCH/2012 IT IS A FAT THAT THE ABOVE ASSESSEE UPLOADED THE E-RETURN ON 25.09.2009 VIDE E.ACK.NO.90921980250909. MERE U PLOAD OF E-RETURN DOES NOT CONSTRUE AS FILING A VALID RET URN UNDER SECTION 139(1) OF THE I.T. ACT. IT IS ALSO REQUIRE D TO BE DULY SIGNED IN THE VERIFICATION FORM (SECTION 139(1) REA D WITH SECTION 140 OF THE I.T. ACT, 1961) AND SENT TO THE I.T. AUTHORITIES. IN CASE OF E-RETURNS FOR A.Y. 2009-10 , IT WAS REQUIRED TO BE SENT TO CPC WITHIN 60 DAYS WHICH WAS FURTHER EXTENDED UPTO 31.12.2010. ON RECEIPT OF THE ITR-V IN CPC, THE ITR-VS ARE SORTED, DATE STAMPED, BARCODED, SCANNED AND E- MAILS SENT TO THE ASSESSEES. IN RESPECT OF THE ABOVE ASSESSEE, THOUGH THE E-RET URN WAS UPLOADED ON 25.09.2009, THE ITR-V WAS SENT TO C PC ON 29.11.2010 ONLY. AS DESIRED, THE ITR-V WHICH WAS R ECEIVED IN RESPECT OF THE ABOVE ASSESSEE IS ENCLOSED HEREWITH. AS STATED EARLIER, THE E-RETURN HOWEVER WAS NOT PROCESSED IN CPC AND THE DATA GOT TRANSFERRED DIRECTLY FROM THE E-FILING ADMINISTRATOR TO THE JURISDICTIONAL ASSESSING OFFICER ON 02.12.201 0 FOR PROCESSING. THIS IS FOR YOUR KIND INFORMATION. THE CBDT BY A CIRCULAR DATED 21-05-2009 HAS ISSUED THE CIRCULAR IN CIRCULAR NO.03/2009. FOR THE PURPOSE OF CONVENIENCE, WE ARE REPRODUCING THE CIRCULAR RECEIVED FROM THE CBDT, COPY OF WHICH WAS FILED BY THE LD.DR THE CENTRAL BOARD OF DIRECT TAXES (CBDT) HAD ISSUE D A CIRCULAR IN MAY 2009 NOTIFYING THE INCOME TAX RETURN FORMS F OR FINANCIAL YEAR (FY) 2008-09 (ASSESSMENT YEAR 2009-1 0) AND CLARIFYING THE PROCESS FOR E-FILING OF THE RETURNS WITHOUT DIGITAL SIGNATURE. AS PER THE SAID CIRCULAR, THE TAXPAYER WAS REQUIRED TO SUBMIT THE FORM ITR-V WITH THE INCOME TAX DEPARTMENT AS VE RIFICATION OF THE ELECTRONIC FILING OF THE RETURN WITHIN 30 DA YS OF SUCH 7 ITA NO. 138 & 223/COCH/2012 FILING. THEREAFTER, THIS LIMIT OF FILING THE ITR-V HAS BEEN EXTENDED ON VARIOUS OCCASIONS. DUE DATE FOR FILING THE ITR-V FURTHER EXTENDED FOR FY 2008-09 THE CBDT HAS RECENTLY ISSUED A PRESS RELEASE EXTEND ING THE TIME LIMIT FOR FILING THE ITR-V FORM UPTO 31 ST DECEMBER 2010, OR 120 DAYS FROM THE DATE OF FILING THE TAX RETURN, WH ICHEVER IS LATER. AS PER THE SAID PRESS RELEASE, THIS OPPORTU NITY IS BEING GIVEN TO TAXPAYERS WHO HAVE EITHER NOT FILED THEIR ITR-V OR HAVE FILED THE SAME WITH THE LOCAL INCOME TAX OFFIC E. IT HAS ALSO BEEN CLARIFIED THAT THE FOLLOWING TAXPA YERS MAY AGAIN SEND THEIR ITR-V TO CENTRALISED PROCESSING CE NTER (CPC). TAXPAYERS WHO HAVE FILED ITR-V WITH THE LOCAL TAX O FFICE. TAXPAYERS WHO HAVE SENT THEIR ITR-V TO CPC, BUT HAV E NOT RECEIVED AN ACKNOWLEDGEMENT E-MAIL FROM CPC. FROM THE CIRCULAR ISSUED BY CBDT AND THE LETTER OF THE INCOME-TAX OFFICER (HQRS ) DATED 22-10-2012 IT IS OBVIOUS THAT THE DA TE OF FILING OF FORM ITR-V IS EXTENDED UPTO 31-12-2010. ADMITTEDLY, ITR-V HAS BEEN RECEIVED BY CPC ON 29-11-2010. THE CONTENTION OF THE LD.DR NOW APP EARS FROM THE WRITTEN SUBMISSION IS THAT THE FILING OF ITR-V WITHIN THE E XTENDED PERIOD ONLY VALIDATES THE RETURN FILED BY THE TAXPAYER AND IT W ILL NOT RELATE BACK TO THE DATE OF UPLOADING OF THE RETURN. WE ARE UNABLE TO UPHOLD THIS CONTENTION OF THE LD.DR. 5. THE SCHEME FRAME BY THE CBDT CLEARLY SAYS THAT W HERE THE RETURN WAS FILED ELECTRONICALLY WITH DIGITAL SIGNATURE THE ACKNOWLEDGMENT GENERATED ELECTRONICALLY SHALL BE EVIDENCE FOR FILI NG OF THE RETURN. WHEREVER, THE RETURN WAS FILED ELECTRONICALLY WITHO UT DIGITAL SIGNATURE, ON 8 ITA NO. 138 & 223/COCH/2012 SUCCESSFUL TRANSMISSION, THE COMPUTER SHALL GENERAT E ACKNOWLEDGEMENT IN FORM ITR-V. THE FORM ITR-V GENERATED BY COMPUTER S HALL BE DOWNLOADED AND AFTER TAKING A PRINT OUT IT SHALL BE PHYSICALLY VERIFIED UNDER THE SIGNATURE OF THE TAXPAYER AND FORWARDED TO THE CPC. THE SCHE ME HAS ALSO CLARIFIED THAT THE DATE OF TRANSMITTING THE RETURN ELECTRONIC ALLY SHALL BE THE DATE OF FURNISHING OF RETURN IF THE FORM ITR-V IS FURNISHED IN THE PRESCRIBED MANNER AND WITHIN THE PERIOD SPECIFIED. IN THIS CASE, THE PERIOD SPECIFIED IS 31-12- 2010 OR 120 DAYS FROM THE DATE OF UPLOADING THE RET URN WHICHEVER IS LATER. ADMITTEDLY FORM ITR-V WAS RECEIVED BY CPC ON 29-11- 2010 IS WITHIN THE PRESCRIBED TIME IN THE PRESCRIBED MANNER IN THE PRE SCRIBED FORM. HENCE, FOR ALL PRACTICAL PURPOSE, THE DATE OF FILING OF TH E RETURN SHALL RELATE BACK TO THE DATE ON WHICH THE RETURN WAS ELECTRONICALLY UPL OADED I.E. 25-09-2009. THEREFORE, THE CONTENTION OF THE LD.DR THAT RECEIPT OF FORM ITR-V IS THE DATE OF RECEIPT OF RETURN HAS NO MERIT AT ALL. 6. IN VIEW OF THE ABOVE, THE DATE OF FILING OF THE RETURN OF INCOME IS 25- 09-2009. THEREFORE, THE NOTICE SERVED ON THE TAXPA YER U/S 143(2) ON 26-08- 2011 IS BEYOND THE PERIOD OF SIX MONTHS FROM THE EN D OF THE FINANCIAL YEAR IN WHICH THE RETURN WAS FURNISHED. THEREFORE, THE NOTICE ISSUED BY THE ASSESSING OFFICER U/S 143(2) IS INVALID. HENCE, IT CANNOT BE ACTED UPON. CONSEQUENTLY, THE ASSESSMENT ORDER PASSED BY THE AS SESSING OFFICER CANNOT STAND IN THE EYES OF LAW. THEREFORE, THE SAME IS Q UASHED. 7. ELABORATE ARGUMENTS WERE MADE BOTH BY THE LD.COU NSEL FOR THE TAXPAYER AND BY THE LD.DR WITH REGARD TO THE OBJECT OF FILING FORM ITR-V AND 9 ITA NO. 138 & 223/COCH/2012 THE MODE PRESCRIBED BY CBDT TO TRANSMIT FORM ITR-V BY ORDINARY POST AND THE ADDITIONS MADE BY THE ASSESSING OFFICER. IN VI EW OF THE ADMITTED POSITION AND THE EXTENSION OF TIME LIMIT BY CBDT FO R FILING FORM ITR-V TILL 31- 12-2010 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION , THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IT MAY NOT BE NECESSARY TO CONSIDER ALL THESE ARGUMENTS. HOWEVER, WE MAKE IT VERY CLEAR THAT THE OBJECT BEHIND THE FILING OF FORM ITR-V THE METHOD PRESCRIBED BY CBDT FOR TRANSMITTING THE SAME BY ORDINARY OR SPEED POST AND THE CONSEQUENCE OF NOT FILING THE FORM ITR-V WITHIN THE SPECIFIED TIME ARE LEFT OPEN TO BE DECIDED IN APPROPRIATE APPEAL. 8. WITH THE ABOVE OBSERVATIONS, THE ORDERS OF THE A UTHORITIES BELOW ARE SET ASIDE. 9. IN THE RESULT, APPEAL OF THE TAXPAYER IN ITA 138 /COCH/2012 ALLOWED AND THE APPEAL OF THE REVENUE IN ITA 223/COCH/2012 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH NOVEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 16 TH NOVEMBER, 2012 PK/- 10 ITA NO. 138 & 223/COCH/2012 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH