Sarat Chandra Senapati, Bhubaneswar V. CIT, Bhubaneswar

ITA 218/CTK/2014

• Counselvise Citation: 21822114 RSA 2014
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 28-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RABIN CHOUDHURI
• Keywords: Revised return
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH , CUTTACK BEFORE S/SHRI P.K.BANSAL (AM) AND D.T.GARASIA (JM) I.T.A. NO.218 /CTK/2014 ASSESSMENT YEAR:2009-2010 SRI SARAT CHANDRA SENAPATI, DUPLEX-7, NEELASAILA VILLA, TANKAPANI ROAD, BHUBANESWAR PA NO.AGVPS 4152 L VS CIT, AAYAKAR BHAVAN BHUBANESWAR APPELLANT RESPONDENT FOR THE APPELLANT: NONE FOR THE RESPONDENT: SHRI RABIN CHOUDHURI DATE OF HEARING: 05/02/2015 DATE OF PRONOUNCEMENT: 3 / 3 /2015 ORDER PER P.K.BANSAL, AM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST ORDER DATED 6.3.2014 OF LD CIT, BHUBANESWAR U/S.263 OF THE I.T.ACT, 1961, FOR THE A SSESSMENT YEAR 2009-2010, WHEREIN, LD CIT DIRECTED THE AO TO MODIFY THE ASSESSMENT ORDER DATE D 21.10.2011 BY DISALLOWING THE CLAIM OF TRAVELLING EXPENSES OF RS.47,500/- AND OTHER EXPENS ES OF RS.84,046/-. 2. NONE APPEARED ON BEHALF OF THE ASSESSEE, WHEN TH E MATTER WAS CALLED ON FOR HEARING. HENCE, WE PROCEED TO DECIDE THE APPEAL OF THE ASSES SEE EXPARTE AFTER HEARING LD D.R. AND ON THE BASIS OF MATERIALS AVAILABLE ON RECORD. 3. AFTER HEARING THE LD D.R. AND GOING THROUGH THE ORDERS OF THE TAX AUTHORITIES, WE NOTED THAT BY INVOKING PROVISIONS OF SECTION 263 OF THE I .T.ACT, 1961, BOTH THE CONDITIONS THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AS WELL AS PREJ UDICIAL TO THE INTERESTS OF THE REVENUE MUST BE SATISFIED. IN THIS CASE, WE NOTED THAT LD CIT H AS INVOKED JURISDICTION U/S.263, AS IN HIS OPINION, THE AO WHILE FRAMING THE ASSESSMENT HAD NO T CONSIDERED THE ADDITIONAL CLAIM OF 2 I.T.A. NO.218 /CTK/2014 ASSESSMENT YEAR:2009-2010 EXPENDITURE CLAIMED BY THE ASSESSEE IN THE REVISED RETURN UNDER THE HEAD TRAVELING EXPENSES AMOUNTING TO RS.47,500/- AND OTHER EXPENSES AMOUNTI NG TO RS.84,046/-. WE NOTED THAT THIS IS A CASE WHERE THE ASSESSEE HAS SUBMITTED THE ORIGINA L RETURN OF INCOME AT RS.2,90,518/-. SUBSEQUENTLY, WITH REFERENCE TO NOTICE U/S.148 OF T HE ACT, THE REVISED RETURN WAS FILED SHOWING INCOME OF RS.5,11,604/-. IN THE REVISED RETURN, TH E ASSESSEE HAS CLAIMED ADDITIONAL EXPENSES, WHICH ARE AS UNDER: I) SALARY & WAGES : RS.1,50,000/- II) TRAVELLING EXPENSES : RS. 47,500/- III) OTHER EXPENSES : RS. 84,046/- RS.2,81,546/- THE ASSESSING OFFICER WHILE FRAMING THE ASSESSMENT HAS TAKEN THE NET PROFIT AS SHOWN BY THE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOTICE U/S.148 AT RS.5,10,236/- BUT DISALLOWED EXPENSES MENTIONING DISALLOWANCE OF EXPENSES AS DI SCUSSED ABOVE AT RS.1,50,000/-, THEREFORE, BOTH THE INCOME FROM PROFESSION WAS DETERMINED AT R S.6,60,236/-. ULTIMATELY, THE NET TAXABLE INCOME WAS DETERMINED AT RS.6,34,392/- AGAINST THE INCOME AS ORIGINALLY RETURNED BY THE ASSESSEE AT RS.2,90,518/-. FROM THE DISALLOWANCES OF EXPENSES MADE BY THE AO, IT IS APPARENT THAT THE AO HAS DULY CONSIDERED THE EXPENSES CLAIME D BY THE ASSESSEE IN THE RETURN FILED WITH REFERENCE TO NOTICE U/S.148 OF THE ACT. IT IS NOT A CASE WHERE IT CAN BE SAID THAT THE AO HAS NOT CONSIDERED THE EXPENSES, WHICH HAS BEEN CLAIMED BY THE ASSESSEE WHILE COMPUTING THE INCOME WITH REFERENCE TO NOTICE ISSUED U/S.148 OF THE ACT UNDER THE HEAD INCOME FROM BUSINESS. THE USE OF WORD BY THE AO DISALLOWANCE OF EXPENSES AS DISCUSSED ABOVE ITSELF PROVE THAT ALL THE ADDITIONAL EXPENSES AS HAS BEEN CLAIMED BY THE ASSE SSEE HAS DULY BEEN CONSIDERED BY THE AO AND OUT OF THE TOTAL EXPENSES CLAIMED BY THE ASSESS EE AMOUNTING TO RS.2,81,546/-, THE AO HAS DISALLOWED ONLY A SUM OF RS.1,50,000/-. IT IS NOT A CASE WHICH PROVES THAT THE AO HAS NOT CONSIDERED THE CLAIM OF EXPENSES MADE BY THE ASSESS EE IN RESPECT OF TRAVELLING AND OTHER EXPENSES. IF THE AO HAS TAKEN ONE OF THE VIEW, IT CANNOT BE SAID UNLESS AND UNTIL THE VIEW TAKEN BY THE AO IS UNSUSTAINABLE IN LAW AND IT CANN OT BE SAID THAT THE ORDER PASSED BY THE AO IS 3 I.T.A. NO.218 /CTK/2014 ASSESSMENT YEAR:2009-2010 ERRONEOUS. WE, THEREFORE, QUASH THE ORDER PASSED B Y LD CIT. IN OUR OPINION, THE LD CIT HAS EXCEED HIS JURISDICTION BY INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. 4. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN PURSUANCE WITH RULE 34(4) BY P UTTING THE COPY OF THE SAME ON NOTICE BOARD ON 3/3/2015. SD/- SD/- (D.T.GARASIA) (P.K.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, PANAJI 3 / 3 /2015 B.K.PARIDA, SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: SARAT CHANDRA SENAPATI, DUPLEX-7, NEELASAILA VILLA, TANKAPANI ROAD, BHUBANESWAR 2. THE RESPONDENT: CIT, AAYAKAR BHAVAN, BHUBANESWAR 3. THE CIT(A), CONCERNED. 4. DR, CUTTACK BENCH 5. GUARD FILE. TRUE COPY// BY ORDER ASST. REGISTRAR, ITAT, CUTTACK