Mr.Hanumanaik Anjanappa , Bangalore V. Commissioner of Income Tax (Appeals)-3 , Bangalore

ITA 2395/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1096 (ITAT-BANGALORE)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-03-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: K MALLABA RAO
• Keywords: Rectification of order; TDS; Set aside
• Section: 154; 143(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI N. V. VASUDEVAN, VICE PRESIDENT AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER ITA NO. 23 9 5 /BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 SHRI. HANUMANAIK ANJANAPPA, NO.2357, 1 ST C MAIN ROAD, R. P. C. LAYOUT, VIJAYANAGARA, 2 ND STAGE, BENGALURU 560 040. PAN : AAJPA 3522 G VS. COMMISSIONER OF INCOME TAX, (APPEALS) 3, BENGALURU 95. APPELLANT RESPONDENT ASSESSEE BY : SHRI. K. MALLABA RAO, ADVOCATE REVENUE BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT DATE OF HEARING : 18 . 03 .201 9 DATE OF PRONOUNCEMENT : 22 . 0 3 .201 9 O R D E R PER SHRI JASON P BOAZ, A.M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF CIT(A)-3, BANGALORE, DATED 29.06.2018 FOR ASSESSMENT YEAR 2008-09. 2. BRIEFLY STATED, THE FACTS RELEVANT FOR DISPOSAL OF THIS APPEAL ARE AS UNDER: 2.1 THE ASSESSEE FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2008-09 ON 25.07.2008 DECLARING AN INCOME OF RS.4,33,405/-. THE RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WHEREIN THE ASSESSEE ITA NO. 2395/BANG/2018 PAGE 2 OF 8 WAS NOT ALLOWED FULL CREDIT OF TDS AS CLAIMED BY HIM. THE ASSESSEE FILED A RECTIFICATION APPLICATION ONLINE UNDER SECTION 154 OF THE ACT ON 18.03.2017 WHICH WAS DISPOSED OFF BY THE ASSESSING OFFICER (AO) VIDE ORDER DATED 01.05.2017. ON APPEAL, THE CIT(A)-3, BENGALURU, DISMISSED THE ASSESSEES APPEAL VIDE THE IMPUGNED ORDER DATED 29.06.2018. 3.1 AGGRIEVED BY THE ORDER OF THE CIT(A)-3, BANGALORE, DATED 29.06.2018 FOR ASSESSMENT YEAR 2008-09, THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL, WHEREIN HE HAS RAISED THE FOLLOWING GROUNDS IN WHICH VARIOUS ARGUMENTS HAVE BEEN PUT FORTH:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPEAL ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL) DATED 29-06-2018 FOR THE ASSESSMENT YEAR 2008-09 U/S. 250 OF THE INCOME TAX ACT IS NOT MAINTAINABLE IN LAW. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED APPELLATE AUTHORITY HAS FAILED TO APPRECIATE THAT THE APPLICATION FILLED BY THE APPELLANT SEEKING RECTIFICATION OF ASSESSMENT ORDER PASSED FOR THE ASSESSMENT YEAR 2008-09 U/S 154 OF IT ACT 1961 WAS NEVER REJECTED BY THE ASSESSING AUTHORITY ON THE GROUND THAT IT WAS BARRED BY LIMITATION. ON THE CONTRARY, AFTER THE RECEIPT OF APPLICATION FROM THE APPELLANT SEEKING RECTIFICATION OF ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSING AUTHORITY HAS PROCEEDED TO PASS RECTIFICATION ORDER U/S154 OF IT ACT VIDE HIS ORDER DATED 01-05-2017, WHEREIN HE HAS ALLOWED ADDITIONAL TAX CREDIT AMOUNTING TO RS.13,321.00. THIS ACTION OF ASSESSING AUTHORITY TOTALLY CONTRADICTS THE FINDING OF THE APPELLATE AUTHORITY IN HIS APPEAL ORDER THAT THE ASSESSING AUTHORITY IS JUSTIFIED IN NOT ACTING UPON THE RECTIFICATION APPLICATION FILLED BY THE APPELLANT FOR THE ASSESSMENT YEAR 2008-09. 3. UNDER THE FACTS AND CIRCUMSTANCE OF THE CASE, THE UNDERSTANDING OF THE LEARNED CIT (A) WHILE DELIVERING HIS JUDGMENT IN HIS APPEAL ORDER DATED 29-06-2018 THAT THE APPELLANT HAD SOUGHT RECTIFICATION U/S154 OF THE INCOME TAX ACT FOR THE ASSESSMENT 2008-09 WAS BARRED BY LIMITATION IS TOTALLY INCORRECT AND IMPROPER. ITA NO. 2395/BANG/2018 PAGE 3 OF 8 4. IN REALITY, AFTER THE RECEIPT OF APPLICATION SEEKING RECTIFICATION OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSING AUTHORITY HAS PROCEEDED TO PASS RECTIFICATION ORDER U/ S154 OF THE I.T. ACT VIDE HIS ORDER DATED 01-05-2017 WHICH RESULTED IN ADDITIONAL TAX CREDIT OF RS. 13,321.00. THIS ACTION OF THE ASSESSING AUTHORITY FULLY CONTRADICTS THE UNDERSTANDING OF THE APPELLANT AUTHORITY THAT THE REQUEST OF THE APPELLANT SEEKING RECTIFICATION WAS BARRED BY LIMITATION. 5. THE ONLY GROUSE OF THE APPELLANT AGAINST THE RECTIFICATION ORDER DATED 01-05-2017, WHICH PROMPTED HIM TO PREFER AN APPEAL BEFORE THE CIT(A) WAS INCORRECT TAX CREDIT ALLOWED BY THE ASSESSING AUTHORITY IN HIS RECTIFICATION ORDER, EVEN THOUGH TDS CERTIFICATE IN FORM - 16 FOR THE ASSESSMENT YEAR 2008-09 WAS FURNISHED ALONG WITH THE ITR SUBMITTED FOR THE ASSESSMENT YEAR 2008-09. LEGALLY THE APPELLANT WAS ENTITLED FOR SEEKING TAX CREDIT OF RS.48,368.00 WHICH WAS DENIED TO THE APPELLANT WITHOUT ASSIGNING ANY REASON FOR SUCH DENIAL. 6. THE REJECTION OF RECTIFICATION REQUEST OF THE APPELLANT BY THE ASSESSING AUTHORITY ON THE GROUND OF LIMITATION WAS NEVER A GROUND FOR PREFERRING THE APPEAL BEFORE THE LEARNED CIT(A). 7. THE LEARNED APPELLATE AUTHORITY AT PARA NO.4.1 OF THE APPEAL ORDER DATED: 29-06-2018 OBSERVES THAT THE ASSESSMENT ORDER IN CASE OF THE APPELLANT WAS PASSED BY THE ASSESSING AUTHORITY U/S 143(1) OF IT ACT FOR THE ASSESSMENT YEAR 200809 ON 15.02.2010 AND ANY RECTIFICATION APPLICATION AGAINST SAID ORDER COULD BE FILLED ONLY UP TO 31.03.2014 AND NOT BEYOND, BECAUSE THE CASE GET BARRED BY LIMITATION THEREAFTER. 8. AS PER THE INFORMATION FURNISHED BY THE INFORMATION OFFICER VIDE LETTER DATED 26.07.2018, THE DATE OF PASSING ORDER U/S143(1) OF IT ACT-1961 FOR THE ASSESSMENT YEAR 2008-09 IS 03-06-2010, WHEREAS THE DATE OF ORDER U/S143(1) OF IT ACT ADOPTED BY CIT(A) IS 15-02-2010 WHICH IS MUCH EARLIER TO THE DATE OF ORDER PASSED BY THE ASSESSING AUTHORITY. THE LEARNED APPELLATE HAS FAILED TO EXAMINE AND RESOLVE THIS AMBIGUITY BEFORE DELIVERING HIS JUDGMENT VIDE ORDER DATED 29-06-2018. 9. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED APPELLATE AUTHORITY OUGHT TO HAVE APPRECIATED THAT THE CLAIM OF THE APPELLANT FOR SEEKING INCOME TAX CREDIT FOR THE AY-2008-09 BEFORE THE ASSESSING ITA NO. 2395/BANG/2018 PAGE 4 OF 8 AUTHORITY WAS FULLY AND LEGALLY JUSTIFIED AND THE SAME SHOULD HAVE BEEN ALLOWED BY THE ASSESSING AUTHORITY. IT IS FURTHER SUBMITTED THAT THE HON'BLE CIT (A) ERRED IN NOT RESOLVING THE SAME WHICH WAS WELL WITHIN HIS JURISDICTION. HENCE, WITHOUT ANY OTHER ALTERNATIVE, THE APPELLANT HAS APPROACHED THIS HON'BLE TRIBUNAL SEEKING JUSTICE. THE APPELLANT HUMBLY PRAYS BEFORE THIS TRIBUNAL TO SET ASIDE THE ORDER OF THE LEARNED CIT(A) 86 DIRECT THE ASSESSING AUTHORITY TO ALLOW CREDIT OF INCOME TAX CLAIMED BY THE APPELLANT AS PER TDS CERTIFICATE ENCLOSED TO THE ITR SUBMITTED FOR THE AY-2008-09. 10. WITHOUT PREJUDICE THE LEVY TAX AND INTEREST IS EXCESSIVE, ARBITRARY AND ALSO THE SAME NEEDS TO BE DELETED. 11. FOR SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, IT IS PRAYED THAT THIS HON'BLE AUTHORITY MAY KINDLY ALLOW THE ABOVE APPEAL IN THE INTEREST OF JUSTICE AND EQUITY. 3.2 THE LEARNED AR FOR THE ASSESSEE WAS HEARD AND HE REITERATED THE ARGUMENTS PUT FORTH IN THE GROUNDS RAISED IN THIS APPEAL (SUPRA). THE ASSESSEE HAS ALSO FILED A PAPER BOOK (PAGES 1 TO 14). IN SUPPORT OF THE ASSESSEES CONTENTIONS, THE LEARNED AR PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- (I) CIT VS. VIRGIN CREATIONS (ITA NO.3200/2011 DATED 23.11.2011) (CALCUTTA HIGH COURT) AND (II) DEVARSH PRAVINBHAI PATEL VS. ACIT (CA NO.12965 AND 12966 OF 2018 DATED 24.09.2018) (GUJARAT HIGH COURT). 3.3 PER CONTRA, THE LEARNED DR SUPPORTED THE IMPUGNED ORDER OF THE CIT(A) AS BEING IN ORDER. IT WAS SUBMITTED THAT THE ABOVE JUDICIAL ITA NO. 2395/BANG/2018 PAGE 5 OF 8 PRONOUNCEMENTS RELIED ON BY THE ASSESSEE (SUPRA) ARE NOT RENDERED IN THE CONTEXT OF THE MAINTAINABILITY OF RECTIFICATION APPLICATION FILED BEYOND THE PERIOD SPECIFIED AND MANDATED UNDER SECTION 154(7) OF THE ACT FOR THIS PURPOSE. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE ASSESSEES APPEAL BE DISMISSED. 3.4.1 WE HAVE CONSIDERED THE RIVAL CONTENTIONS / SUBMISSIONS PUT FORTH AND PERUSED THE MATERIAL ON RECORD. ALL THE GROUNDS RAISED (SUPRA) PERTAIN TO THE ISSUE OF WHETHER TDS CREDIT IS TO BE GRANTED TO THE ASSESSEE, AS CLAIMED ON THE BASIS OF ITS RECTIFICATION APPLICATION DATED 18.03.2017. THE FACTS, AS EMANATE FROM AN APPRAISAL OF THE RECORD ARE THAT FOR THE ASSESSMENT YEAR 2008-09, THE ASSESSEE FILED A RETURN OF INCOME ON 25.07.2008 DECLARING INCOME OF RS.4,33,405/- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 15.02.2010, WHEREIN THE ASSESSEE WAS NOT ALLOWED FULL CREDIT OF TDS AS CLAIMED. MORE THAN 7 YEARS LATER, THE ASSESSEE FILED A RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT ON 18.03.2017 IN THIS REGARD WHICH WAS REJECTED. 3.4.2 THE ONLY DISPUTE RAISED IN THE APPEAL BEFORE THE CIT(A) BY THE ASSESSEE, AS BEFORE AO IN RECTIFICATION PROCEEDINGS, WAS NON-GRANT OF TDS CREDIT OF RS.48,368/- AS PER FORM NO.16 ISSUED BY HIS EMPLOYER, GOVERNMENT OF KARNATAKA. ACCORDING TO THE AVERMENTS OF THE ASSESSEE, INTER ALIA, THE AO HAS ALLOWED CREDIT OF RS.13,797/- (WHICH INCLUDES ADVANCE TAX PAID OF RS.10,321/- AND TDS FOR RS.3,000/- ONLY AS AGAINST RS.48,368/- OF TDS CREDIT CLAIMED BY THE ASSESSEE. THE CIT(A) DISMISSED ITA NO. 2395/BANG/2018 PAGE 6 OF 8 THE ASSESSEES APPEAL ON GROUNDS OF ASSESSEES RECTIFICATION APPLICATION DATED 18.03.2017 BEING BARRED BY LIMITATION AS MANDATED BY THE ACT; WHEREBY THE ASSESSEE OUGHT TO HAVE FILED THE RECTIFICATION APPLICATION ON OR BEFORE 31.03.2014 AND IN THIS REGARD HELD AS UNDER AT PARA 4.1 OF THE IMPUGNED ORDER: 4.1 THE SUBMISSIONS OF THE APPELLANT HAVE DULY BEEN CONSIDERED. AS PER DETAILS AVAILABLE ON THE RECTIFICATION ORDER PRODUCED BY THE APPELLANT, THE PROCESSING UNDER SECTION 143(1) WAS DONE ON 15.02.2010. SO ANY RECTIFICATION APPLICATION AGAINST THE SAID ORDER WAS REQUIRED TO BE FILED BY THE APPELLANT WITHIN 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 143(1) OF THE ACT WAS PASSED BY THE AO. SINCE THE ORDER UNDER SECTION 143(1) WAS PASSED BY THE AO ON 15.02.2010, SO THE RECTIFICATION APPLICATION AGAINST THE SAME COULD HAVE BEEN FILE BY THE APPELLANT ONLY UPTO 31.03.2014. IN THE CASE UNDER CONSIDERATION THE RECTIFICATION APPLICATION HAS BEEN FILED BY THE APPELLANT ON 18.03.2017, WHICH IS EVIDENTLY BEYOND THE PRESCRIBED TIME LIMIT. IN VIEW OF ABOVE, SUCH A BELATED APPLICATION UNDER SECTION 154 OF THE ACT COULD NOT HAVE BEEN ACTED UPON BY THE AO TO RECTIFY THE MISTAKE APPARENT FROM RECORD, IF ANY. CONSIDERING ABOVE THE ACTION OF THE AO CANNOT BE FAULTED WITH AND THE GROUNDS OF APPEAL OF THE APPELLANT ARE DISMISSED. 3.4.3 SECTION 154 OF THE ACT DEALS WITH THE RECTIFICATION OF ANY MISTAKE APPARENT FROM THE RECORD; INCLUDING, INTER ALIA, UNDER SECTION 154(1)(B) AMENDING ANY INTIMATION OR DEEMED INTIMATION UNDER SECTION 143(1) OF THE ACT. THE INTIMATION WAS PROCESSED UNDER SECTION 143(1) OF THE ACT ON 15.02.2010 AND IN THIS REGARD SUB SECTION (7) OF SECTION 154 OF THE ACT MANDATES THAT NO AMENDMENT / RECTIFICATION SHALL BE MADE AFTER THE EXPIRY OF 4 YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT ITA NO. 2395/BANG/2018 PAGE 7 OF 8 TO BE AMENDED WAS PASSED. THEREFORE, IN THE CASE ON HAND, AS RIGHTLY POINTED OUT BY THE CIT(A), THE ASSESSEE OUGHT TO HAVE FILED THE SAID RECTIFICATION APPLICATION UNDER SECTION 154 OF THE ACT ON OR BEFORE 31.03.2014. HOWEVER, IN THE CASE ON HAND, THE ASSESSEE HAS ADMITTEDLY FILED A RECTIFICATION APPLICATION ON 18.03.2017; WHICH IS BARRED BY LIMITATION BEING FILED BELATEDLY WITH A DELAY OF ALMOST THREE YEARS. ALL THE AVERMENTS TO THE CONTRARY PUT FORTH BY THE ASSESSEE / LEARNED AR, AS TO WHAT THE AO / CIT(A) OUGHT TO HAVE DONE / NOT DONE ETC., DOES NOT COME TO THE ASSESSEES RESCUE AS THE ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH THE BASIC REQUIREMENT; I.E., THAT ITS RECTIFICATION APPLICATION DATED 18.03.2017 BEFORE THE AO WAS MAINTAINABLE AS PER THE RELEVANT MANDATE OF THE PROVISIONS OF SECTION 154(7) OF THE ACT. WITH DUE RESPECT, WE HAVE PERUSED THE JUDICIAL PRONOUNCEMENTS CITED AND FIND THAT THEY ARE RENDERED IN CONTEXTS THAT ARE DIFFERENT FROM THE ISSUE OF DISPUTE IN THE CASE ON HAND I.E., WHETHER THE ASSESSEES RECTIFICATION APPLICATION DATED 18.03.2017; FILED BELATEDLY BY ALMOST THREE YEARS BEYOND 31.03.2014, AS PER MANDATE OF SECTION 154(7) OF THE ACT; IS MAINTAINABLE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND THE RELEVANT PROVISIONS OF SECTION 154 OF THE ACT, WE FIND NO CAUSE TO INTERFERE WITH OR DIFFER FROM THE FINDING RENDERED BY THE CIT(A) (SUPRA). CONSEQUENTLY, THE GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD ARE DISMISSED. THE ASSESSEE IS, HOWEVER, AT LIBERTY TO MOVE ITS GRIEVANCES BEFORE THE INCOME TAX DEPARTMENT UNDER OTHER PROVISIONS OF THE ACT ON THIS ISSUE. 4. IN THE RESULT, THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2008-09 IS DISMISSED. ITA NO. 2395/BANG/2018 PAGE 8 OF 8 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF MARCH, 2019. SD/- SD/ - SD/ - (N. V. VASUDEVAN) VICE PRESIDENT (JASON P BOAZ) ACCOUNTANT MEMBER BANGALORE. DATED: 22 ND MARCH, 2019. /NS/* COPY TO: 1. APPELLANTS 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.