THIAGARAJAN AUTOMOBILES, MADURAI V. ITO NON CORPORATE WARD 3, MADURAI

ITA 1693/CHNY/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0567 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D DIVAHAR IRS
• Keywords: Depreciation; Revised return
• Section: 143(3); 251

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B (SMC) BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./I.T.A. NO.1693/CHNY/2019 ! ' / ASSESSMENT YEAR : 2013-2014. M/S. THIAGARAJAN AUTOMOBILES, INDIAN OIL DEALERS, NO.220, SOUTH VELI STREET, MADURAI 625 001. VS. THE INCOME TAX OFFICER, NON CORPORATE WARD 3(5) MADURAI. [PAN AABFT 4353N] ( / APPELLANT) ( /RESPONDENT) # $ % / APPELLANT BY : SHRI. V. SUBBARAYAN, DCIT, (RETD) &' # $ % /RESPONDENT BY : SHRI. D. DIVAHAR, IRS, JCIT. ( ) $ * /DATE OF HEARING : 16-09-2019 +,'! $ * /DATE OF PRONOUNCEMENT : 17-09-2019 / O R D E R PER INTURI RAMA RAO , ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S)-1, MADURAI, (CIT(A) FOR SHORT) DATED 16.04.2019 FOR THE ASSES SMENT YEAR (AY) 2013-2014. 2. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT IS A PARTNERSHIP FIRM ENGAGED IN TH E BUSINESS OF RUNNING PETROL BUNK. THE ORIGINAL RETURN OF INCOM E FOR THE ASSESSMENT ITA NO.1693/2019 :- 2 -: YEAR 2013-14 WAS FILED ON 18.03.2014 DISCLOSING TO TAL INCOME OF B8,85,050/- AND THE SAME WAS REVISED ON 19.03.2014 AT TOTAL INCOME OF B7,62,230/-. AGAINST THE SAID RETURN OF INCOME , THE ASSESSMENT WAS COMPLETED BY THE INCOME TAX OFFICER, NON CORPOR ATE WARD 3(5)MADURAI, VIDE ORDER DATED 19.01.2016 PASSED U /S. 143(3) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) AT TOTA L INCOME OF B11,81,050/-. WHILE DOING SO, THE AO MADE ADHOC DISALLOWANCE OF 10% OF SALES PROMOTION EXPENSES OF B1,45,000/-, ADD ITION ON ACCOUNT OF FUNDS LENT TO MRS. SANGEETHA, WHO IS THE SPOUSE OF ONE OF THE PARTNERS OF B61,000/-, INTEREST AMOUNT PAID ON CAR LOAN HOLDING IT TO BE PERSONAL EXPENDITURE TO THE EXTENT OF B20,000/- AN D ALSO TELEPHONE EXPENSES OF B70,000/-. AFTER THE RECEIPT OF THE ASS ESSMENT ORDER, ASSESSEE MOVED A PETITION DATED 10.02.2016 U/S.154 OF THE ACT PRAYING THAT REVISED RETURN OF INCOME FILED ON 19.0 3.2014 WAS NOT CONSIDERED. THE ASSESSING OFFICER VIDE LETTER DATE D 29.08.2016 STATED THAT THE ORIGINAL RETURN OF INCOME WAS NOT FILED W ITHIN THE TIME PERIOD PRESCRIBED U/S.139(1) OF THE ACT, HENCE THE REVISED RETURN OF INCOME WAS NOT CONSIDERED. 3. BEING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD.CIT(A) WHO VIDE IMPUGNED ORDER CONFIRMED THE ACT ION OF THE ASSESSING OFFICER (AO). 4. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A), TH E APPELLANT IS IN APPEAL BEFORE US IN THE PRESENT APPEAL. IT IS CONTENDED THAT ITA NO.1693/2019 :- 3 -: NOTWITHSTANDING THE FACT THAT REVISED RETURN OF IN COME WAS NOT VALID IN LAW, THE ASSESSING OFFICER IS EXPECTED TO COMPUTE T HE INCOME IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND HE P LACED RELIANCE ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE O F CIT VS. SHELLY PRODUCTS AND ANOTHER (2003) 261 ITR 367 AND CBDT CI RCULAR NO. 14(XL-35) DATED 11.04.1955. 5. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESE NTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. ADMITTEDLY, THE REVISED RETURN OF INCOME FI LED BY THE ASSESSEE IS NOT VALID IN LAW. ASSESSEE HAD FILED REVISED RET URN OF INCOME CLAIMING HIGHER DEPRECIATION THAN WHAT WAS CLAIMED IN THE ORIGINAL RETURN OF INCOME. THE INFORMATION CONTAINED IN THE REVISED RETURN OF INCOME FORMS PART OF MATERIAL FOR THE PURPOSE OF F RAMING THE ASSESSMENT AND THE ASSESSING OFFICER IS EXPECTED TO ASSESS THE TOTAL INCOME OF AN ASSESSEE IN ACCORDANCE WITH LAW AND TH E PROCEEDINGS OF THE INCOME TAX ACT ARE NOT CONSIDERED TO BE THE AD VERSAL IN NATURE. WE REFER TO THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS ABHINITHA FOUNDATION PVT LTD, (2017) 396 ITR 251 , WHEREIN IT WAS HELD AS FOLLOWS:- 18. IN SUM, WHAT EMERGES FROM A PERUSAL OF THE RA TIO OF THE JUDGMENTS CITED ABOVE, IN PARTICULAR, THE JUDGMENTS RENDERED BY THE SUPREME COURT IN GOETZE'S CASE AND NATIONAL THE RMAL POWER CO. LTD.'S CASE, AND THOSE, RENDERED BY THE DIVISIO N BENCH OF THIS ITA NO.1693/2019 :- 4 -: COURT IN RAMCO CEMENTS LTD. AND CIT V. MALIND LABOR ATORIES P. LTD., AS ALSO THE JUDGMENTS OF THE DELHI HIGH COURT IN SAM GLOBAL SECURITIES LTD.'S CASE AND JAI PARABOLIC SPRINGS LT D.'S CASE, THAT, EVEN IF, THE CLAIM MADE BY THE ASSESSEE-COMPANY DOE S NOT FORM PART OF THE ORIGINAL RETURN OR EVEN THE REVISED RET URN, IT COULD STILL BE CONSIDERED, IF, THE RELEVANT MATERIAL WAS AVAILA BLE ON RECORD, EITHER BY THE APPELLATE AUTHORITIES, (WHICH INCLUDE S BOTH THE COMMISSIONER OF INCOME- TAX (APPEALS) AND THE TRIBU NAL) BY THEMSELVES, OR ON REMAND, BY THE ASSESSING OFFICER. IN THE INSTANT CASE, THE TRIBUNAL, ON PERUSAL OF THE RECORD, FOUND THAT THE RELEVANT MATERIAL QUA THE CLAIM MADE BY THE ASSESSE E-COMPANY UNDER SECTION 80-IB(10) OF THE ACT WAS PLACED ON RE CORD BY THE ASSESSEE-COMPANY DURING THE ASSESSMENT PROCEEDINGS AND THEREFORE , IT DEEMED IT FIT TO DIRECT ITS RE-EXAMINATION BY TH E ASSESSING OFFICER. KEEPING IN VIEW OF THE ABOVE POSITION OF LAW, WE RE MIT THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER TO CONSIDER TH E INFORMATION CONTAINED IN THE REVISED RETURN OF INCOME AND REDO THE ASSESSMENT IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 17TH DAY OF SEPTEMBER, 2019, AT CHENNAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER -) / CHENNAI . / DATED: 17TH SEPTEMBER, 2019. KV /0 $0& *12032'* / COPY TO: 0 1. # / APPELLANT 3. 0 ( 4*056 / CIT(A) 5. 278 0& * 9 / DR 2. &' # / RESPONDENT 4. 0 ( 4* / CIT 6. 8:0;) / GF