Vimal Balvant Mavani (HUF), CHENNAI V. DCIT Non Corporate Circle 12(1), CHENNAI

ITA 2228/CHNY/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5650 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 12-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SAGADEVAN JCIT D R
• Assessee Lawyers: SUSHMA HARINI
• Keywords: Revised return
• Section: 139(5); 139

Judgement Text

, C/ SMC , IN THE INCOME TAX APPELLATE TRIBUNAL C/SMC BENCH, CHENNAI . , BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER I.T.A.NO.2228 /MDS./2017 ( ASSESSMENT YEAR : 2013-14 ) SHRI VIMAL BALVANT MAVANI (HUF), 42, NSC BOSE ROAD, SOWCARPET, CHENNAI 600 001. VS. THE DCIT, NON CORPORATE CIRCLE 12(1), CHENNAI-6. PAN AAFHV 3575 G ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : MR.SUSHMA HARINI,ADVOCATE / RESPONDENT BY : MR.B.SAGADEVAN, JCIT, D.R ! ' / DATE OF HEARING : 29.11.2017 #$%& ! ' /DATE OF PRONOUNCEMENT : 21.12.2017 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE, AGGRIEVED BY THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)-13, CHENN AI DATED 13.07.2017 PERTAINING TO ASSESSMENT YEAR 2013-14. ITA NO. 2228/MDS/2017 2 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS FOR A DJUDICATION. 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APP EALS) IS INCORRECT, OPPOSED TO LAW AND FACTS AND IS LIABLE TO BE SET ASIDE. 2.1 THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT THE RETURN FILED U/S.139(5) IS INVALID AND NON EST. 2.2 THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT APPRECIATING THE FACT THAT THE DISALLOWANCE ULS.40(A)(IA) WAS NO LONGER R EQUIRED, WHICH IS A BONA FIDE MISTAKE AND THUS OUGHT TO HAVE ACCEPTED THE RE VISED RETURN. 2.3 THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT NOTING THE FACT THAT IN ANY CASE, THE DISALLOWANCE U/S.40(A)(IA) IS UNWA RRANTED IN SO FAR AS THE TAX DEDUCTIBLE ON THE SAID SUM HAS BEEN REMITTED TO THE EXCHEQUER ON OR BEFORE THE DUE DATE FOR FILING THE RETURN OF INCOME. 3. AS AN ALTERNATE CONTENTION, WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE ALLOWED THE AMOUNT OF RS. 14,09,819/- IN THE SUBSEQUENT YEAR IN WHICH THE TDS WAS REMITTED. THE COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN N OT CONSIDERING THIS SPECIFIC PLEA RAISED BEFORE HIM. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE, SHRI VIMAL BALVANT MAVANI HUF E-FILED RETURN OF INCOME ON 01.1 0.2013 ADMITTING AN INCOME OF ` 18,65,540/- AT THAT TIME, THE ASSESSEE HAD NOT PAID THE DEDUCTED TAX OF ` 14,09,819/- REQUIRED TO BE DEDUCTED U/S.194H OF TH E ITA NO. 2228/MDS/2017 3 ACT. THEREFORE, THE ASSESSEE FILED A REVISED RETUR N OF INCOME AT ` 4,55,720/-, THIS TIME WITHDRAWING THE DISALLOWANCE OF ` 14,09,819/- MADE IN THE ORIGINAL RETURN OF INCOME. 3.1 THE CASE WAS SELECTED FOR SCRUTINY UNDER CASS. THE ISSUE BEFORE THE AO WAS WHETHER THE SECOND RETURN FURNISH ED BY THE ASSESSEE (HUF) COULD BE TREATED AS REVISED RETURN. IN THE FIRST RETURN OF INCOME, THE ASSESSEE ON HIS OWN DISALLOWED SUM O F ` 12,09,891/- AS INTEREST PAYMENT WITHOUT TDS AND ` 2,00,000/- AND COMMISSION PAYMENT WITHOUT TDS U/S 40(A)(IA) OF THE ACT. THE A SSESSEE HAS FURNISHED THE FIRST RETURN BEFORE THE DUE DATE U/S 139(1) OF THE ACT. THE SAME WAS ALSO PROCESSED U/S 143(1) OF THE ACT. MEANWHILE, DATE FOR FILING U/S 139 WAS EXTENDED, SO ASSESSEE PAID T HE TDS IN TO GOVERNMENT ACCOUNT AND THEREAFTER FILED ANOTHER RET URN U/S 139(5) OF THE ACT. HOWEVER, THE ASSESSING OFFICER BASED ON CL EAN READING OF THE SECTION 139(5) OF THE ACT DID NOT TREAT THE SECOND RETURN FILED AS REVISED RETURN U/S 139(5) OF THE ACT AS THE SAME WA S FILED AFTER PROCESSING OF RETURN U/S 143(1) OF THE ORIGINAL RET URN. AND THEREBY TREATED THE SECOND RETURN FILED U/S 139(5) OF THE A CT AS AN INVALID RETURN AND TREATED IT AS NON- EXT. AGGRIEVED BY THI S, THE ASSESSEE ITA NO. 2228/MDS/2017 4 CARRIED THE APPEAL BEFORE LD.CIT(A). ON APPEAL, LD. CIT(A) CONFIRMED THE ORDER OF LD. ASSESSING OFFICER. AGAINST THE ORD ER OF LD.CIT(A), NOW THE ASSESSEE IS IN APPEAL BEFORE TRIBUNAL. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE, THE TAX HAS BEEN DEDUCTED AND REMITTED TO THE CENTRAL GOVERNMENT AS BELOW:- AMOUNT PAID ( `) TDS ( `) DATED 1,00,000/- 11,200/- 21.10.2013 1,00,000/- 11,200/- 21.10.2013 12,09,819/- 1,31,870/- 21.10.2013 AS PER CBDT CIRCULAR NO.225/117/2013/ITA.II DATED 2 6.09.2013, THE DUE DATE FOR FILING OF RETURN AND AUDIT REPORT ELEC TRONICALLY IS EXTENDED UPTO 31 ST OCTOBER, 2013, WHICH WAS ORIGINALLY ON OR BEFORE 3 0 TH SEPTEMBER, 2013 FOR ASSESSMENT YEAR 2013-14. AS PER FIRST PROVISO TO SEC.40(A)(IA) OF THE ACT, IF THE ASSESSEE DEDUCTED THE TDS AND PAID THE SAME BEFORE THE DUE DATE OF FILING RETURN U/S.1 39(1) OF THE ACT, IT IS TO BE ALLOWED AS DEDUCTION. 4.1 IN THE PRESENT CASE, THE DATE FOR FILING THE R ETURN HAS BEEN EXTENDED TO 31.10.2013. THE RETURN FILED BY THE AS SESSEE CANNOT BE CONSIDERED AS A RETURN U/S.139(5) OF THE ACT INSTEA D IT SHOULD BE ITA NO. 2228/MDS/2017 5 CONSIDERED AS THE RETURN FILED IN TERMS OF SEC.139( 1) OF THE ACT. ACCORDINGLY, WE DIRECT THE LD. ASSESSING OFFICER TO ALLOW THE SAME. 5. IN THE RESULT, THE APPEAL OF ASSESSEE IS ALLOWE D. ORDER PRONOUNCED ON 21.12.2017 SD/- ( ) ( CHANDRA POOJARI ) /ACCOUNTANT MEMBER CHENNAI, DATED THE 21.12.2017 K S SUNDARAM. ' ( )!*+ ,+%! / COPY TO: 1 . / APPELLANT 3. ' ' -! () / CIT(A) 5. +0 1 )!)23 / DR 2. / RESPONDENT 4. ' ' -! / CIT 6. 1 45 6 / GF