SHRI SANJAY MEHTA, Indore V. THE ITO-4(3), Indore

ITA 190/IND/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 5983 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-06-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 07-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MOHD JAVED
• Keywords: Salary income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE (SINGLE MEMBER CASE) BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER I.T.A.NO.190/IND/2016 A.Y. : 2011-12 SHRI SANJAY MEHTA, ITO, 55-AB, SCHEME NO. 54, VS 4(3), VIJAY NAGAR, INDORE. INDORE. APPELLANT RESPONDENT PAN NO. AACVPM3446R A PPELLANT BY : SHRI SUDHIR PADLIYA, CA RESPONDENT BY : SHRI MOHD. JAVED, DR O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)II, INDORE, DATED 30.11.2015 FOR THE ASSES SMENT YEAR 2011-12. DATE OF HEARING : 22 .0 6 20 16 DATE OF PRONOUNCEMENT : 22 .0 6 . 201 6 SHRI SANJAY MEHTA, INDORE VS. ITO,4(3), INDORE I .T.A.NO.190/IND/2016 A.Y. 2011-12 2 2 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE H AS FILED THE RETURN OF INCOME UNDER THE HEAD SALARY, CAPITAL GAINS AND OTHER SOURCES. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS FILED THE RETURN OF INCOME AND OFFERED FOR SHORT TERM CAPITAL GAINS AT RS. 3,86,20 0/-. THE ASSESSEE HAS ALSO SHOWN THE SALARY INCOME OF RS. 2,2 0,899/-. THE AO TRIED TO VERIFY THE SALARY INCOME AND IT WAS FOUND THAT THE ASSESSEE DID NOT RECEIVE SALARY FROM LIFE CARE EDUCATION SOCIETY. THE AO WAS OF THE VIEW THAT WHEN THE ASSESSEE HAS SHOWN THE INCOME FROM SALARY INCOME FROM ONE PARTY L IFE CARE EDUCATION SOCIETY, THE ASSESSEE CANNOT TAKE STAND T HAT HE HAS RECEIVED SALARY INCOME FROM M/S.PANTHER TYRES PVT.L IMITED. THE HON'BLE SUPREME COURT IN THE CASE OF GOETZ INDI A, 284 ITR 323, UPHELD THE POSITION THAT THERE IS NO PROVISION IN THE INCOME-TAX ACT, TO MAKE AMENDMENT IN THE RETURN OF INCOME BY WAY OF APPLICATION AT THE ASSESSMENT STAGE WITHOU T REVISING THE RETURN. THE ASSESSEE HAS FILED HIS RETURN FOR THE RELEVANT YEAR ON 27.01.2012 I.E. AFTER THE DUE DATE OF FILIN G OF RETURN. HENCE, BY VIRTUE OF SECTION 139(5), HE CANNOT NOW RE VISE ANY WRONG STATEMENT OR OMISSION IN HIS RETURN. THE ASSES SEE HAS SHRI SANJAY MEHTA, INDORE VS. ITO,4(3), INDORE I .T.A.NO.190/IND/2016 A.Y. 2011-12 3 3 NOT REVISED THE RETURN WITHIN ONE YEAR. THEREFORE, T HE ASSESSEE IS SPECIFICALLY PROHIBITED IN DOING THIS. 3. IN RESPECT OF SHORT TERM CAPITAL GAIN, THE AO WAS OF THE VIEW THAT THE LAND OF THE ASSESSEE THOUGH SITUATED WI THIN RURAL AREAS OR WITHIN THE VILLAGE, BUT IT IS SUBJECT TO C APITAL GAIN. THEREFORE, THE AO HAS ADDED THE SALARY INCOME AS RE TURNED TO RS. 2,18,399/- AND FROM SHORT TERM CAPITAL GAIN WAS DETERMINED AT RS. 5,38,800/-. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CI T(A) HAS DISMISSED THE APPEAL. 5. THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS RECEIVED THE SALARY FORM M/S. PANTHER TYRES PVT. LIMITED, BUT DUE TO MISTAKE, THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE HAS RECEIVED THE SA LARY FROM M/S.LIFE CARE EDUCATION SOCIETY. THEREFORE, IT WAS GENUINE MISTAKE AND IT MAY BE ALLOWED. 6. IN RESPECT OF CAPITAL GAIN, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS LAND FALLS IN THE VILLAGE AND THE SAME LAND IS NOT CAPABLE OF CAPITAL GAIN. THEREFORE, NO ADDITION IS CALLED FOR. IN SUPPORT OF THIS, THE SHRI SANJAY MEHTA, INDORE VS. ITO,4(3), INDORE I .T.A.NO.190/IND/2016 A.Y. 2011-12 4 4 ASSESSEE HAS SUBMITTED THE COPY OF SALE DEED ON PAG E 4 OF THE PAPER BOOK, COPY OF THE CERTIFICATE , WHICH IS PLACE D ON PAGE 5 AND MAP THROUGH GOOGLE WHICH IS PLACED AT PAGE 6 OF THE PAPER BOOK. 7. THE LD. DEPARTMENTAL REPRESENTATIVE RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW. 8. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PART IES. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, I FIND THAT THE ASSESSEE HAS SHOWN THE SALARY INCOME OF RS 2,18, 399/- AND ASSESSEE HAS AFTER PAYING PROFESSIONAL TAX AT R S. 2500/-, HE HAS DISCLOSED THE SALARY AT RS. 2,18,399/-. THE ASSESSEE HAS NOT REVISED ITS RETURN OF INCOME NOR THE ASSESS EE CAN REVISE ITS RETURN BECAUSE AFTER FILING ITS RETURN, THE ASSESSEE CAN REVISE THE RETURN ONLY WITHIN ONE YEAR AND THE A SSESSEE IN THIS CASE HAS NO RIGHT TO FILE THE REVISE RETURN. H IS CLAIM CANNOT BE ALLOWED, BUT THE ASSESSEE HAS SUBMITTED T HAT THE ASSESSEE HAS RECEIVED SALARY FROM M/S. PANTHER TYRE S PVT.LIMITED. THEREFORE, I AM OF THE VIEW THAT THIS R EQUIRES VERIFICATION AT THE STAGE OF AO. THE AO IS DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE AND IF THE AO FINDS THAT THE ASSESSEE IS SHRI SANJAY MEHTA, INDORE VS. ITO,4(3), INDORE I .T.A.NO.190/IND/2016 A.Y. 2011-12 5 5 AN EMPLOYEE OF M/S. PANTHER TYRES PRIVATE LIMITED, INDORE AND IF THERE IS ANY DOCUMENTARY EVIDENCE TO SHOW THAT TH E ASSESSEE IS AN EMPLOYEE OF M/S. PANTHER TYRES PRIVATE LIMITE D, THEN IT HAS TO BE VERIFIED AND AFTER VERIFICATION, IF HE FI NDS THAT THE SALARY TO BE GENUINE, THEN IT MAY BE ALLOWED, BUT T HE AO IS DIRECTED TO TAKE THE SALARY INCOME AT RS. 2,18,399/ -. THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED ON THIS GROUND. 9. THE SECOND ISSUE REGARDING COMPUTATION OF CAPITAL GAIN REGARDING AGRICULTURAL INCOME, I HAVE GONE THR OUGH THE ORDERS OF THE AUTHORITIES BELOW. WHILE COMPUTING THE SHORT TERM CAPITAL GAIN, THE AO HAS APPLIED SECTION 50-C AND HE HAS TAKEN THE CAPITAL GAIN AT RS. 5,38,800/- INSTEAD AS SESSEE HAS SHOWN RS. 3,86,200/-. THE ASSESSEE HAS FILED THE ADD ITIONAL EVIDENCE TO SHOW THAT THIS LAND IS NOT SITUATED WITH IN THE 8 KMS. AND FOR THIS ONE CERTIFICATE WAS PRODUCED. I AM OF THE VIEW THAT THE ASSESSEE HAS NOT REVISED HIS RETURN AN D ASSESSEE HAS TAKEN THIS PLEA. I HAVE GONE THROUGH THE CERTIF ICATE WHICH IS NOT AS PER LAW. THEREFORE, WHEN THE ASSESSEE DID N OT REVISE SHRI SANJAY MEHTA, INDORE VS. ITO,4(3), INDORE I .T.A.NO.190/IND/2016 A.Y. 2011-12 6 6 THE RETURN, HIS CLAIM CANNOT BE ALLOWED. THEREFORE, THE ASSESSEES APPEAL IS DISMISSED ON THIS GROUND. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. THIS ORDER HAS BEEN PRONOUNCED IN THE OP EN COURT ON 22ND JUNE, 2016, SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED : 22ND JUNE, 2016. CPU*