Shri Vijay Champak Patel, Surat V. The Income Tax Officer, Ward-2, Surat

ITA 2489/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2069 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 1 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 03-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: RASESH SHAH
• Keywords: Revised return
• Section: 143(3); 54F; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCHES, SURAT BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER AND MS.MADHUMITA ROY, JUDICIAL MEMBER ITA NO.2489/AHD/2016 ASSTT.YEAR 2013-14 SHRI VIJAY CHAMPAK PATEL PACHHLU FALIYU NR. WATER TANK BHARTHANA, VESU SURAT 395 007. PAN : BEWPP 0109 Q VS. ITO, WARD - 2 BARDOLI. / (APPELLANT) / (RESPONDENT) REVENUE : MS.ANUP AMA SINGLA, SR.DR ASSESSEE BY : SHRI RASES SHAH, AR / DATE OF HEARING : 19/11/2018 / DATE OF PRONOUNCEMENT: 22 /11/2018 / O R D E R PER AMARJIT SINGH, ACCOUNTANT MEMBER: THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST ORDER OF LD.CIT(A)-1, SURAT DATED 31.8.2016 PASSED FOR THE ASSTT.YEAR 2013-14. 2. EFFECTIVE GROUNDS RAISED IN THE GROUNDS OF APPEAL ARE GROUND NO.1 AND 2, WHICH RELATE TO A COMMON ISSUE I.E. THE LD.CIT(A) HAS ERRED IN ITA NO.2489/AHD/2016 - 2- REJECTING THE CLAIM OF WITHDRAWAL OF CAPITAL GAIN OF RS.52,04,000/-, WHICH WAS ALREADY TAXED IN THE ASSTT.YEAR 2011-12 IN THE HANDS OF THE ASSESSEE AND THEREFORE, TAXING THE SAME DURING THE YEAR UNDER CONSIDERATION AMOUNTS TO DOUBLE TAXATION. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.65,27,090/- ON 17.1.2014. SUBSEQUENTLY, THE ASSESSEE HAS FILED A REVISED RETURN OF INCOME ON 7.3.2014 DECLARING TOTAL INCOME AT RS.13,23,090/-. REGARDING FILING OF REVISED RETURN, THE ASSESSEE HAS EXPLAINED THAT HE HAS WITHDRAWN THE AMOUNT OF RS.52,04,000/- WHICH WAS INVESTED IN THE CAPITAL GAIN SCHEME, AS THIS AMOUNT HAS ALREADY BEEN TAXED BY THE AO VIDE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) OF THE ACT FOR THE ASSTT.YEAR 2011-12. THE AO DID NOT ACCEPT THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT FILED HIS RETURN OF INCOME FOR THE ASSTT.YEAR 2013-14 WITHIN THE TIME LIMIT STIPULATED UNDER SECTION 139(1) OF THE ACT. THEREFORE, HE STATED THAT REVISED RETURN FILED FOR THE ASSTT.YEAR 2013-124 CANNOT BE ACCEPTED AS A VALID RETURN OF INCOME, AS THE ORIGINAL RETURN OF INCOME WAS FILED BELATED BY THE ASSESSEE. HE HAS FURTHER STATED THAT AS PER PROVISIONS OF SECTION 139(5) OF THE ACT, BELATED RETURN CANNOT BE REVISED. AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) HAS DISMISSED THE CLAIM OF THE ASSESSEE BY REITERATING THE SAME REASONS WHICH WERE QUOTED BY THE AO. 4. DURING THE HEARING BEFORE THE TRIBUNAL, THE LD.COUNSEL FOR THE ASSESSEE HAS SUBMITTED PAPER BOOK CONTAINING SUBMISSIONS AND DETAILS ITA NO.2489/AHD/2016 - 3- WHICH WERE FURNISHED BEFORE THE AO AND THE LD.CIT(A) DURING THE ASSESSMENT PROCEEDINGS AND FIRST APPELLATE PROCEEDINGS. HE CONTENDED THAT THE LD.CIT(A) HAS IGNORED THE FACT THAT THE AO HAS ALREADY ASSESSED THE SAME INCOME UNDER SECTION 143(3) OF THE ACT IN THE ASSTT.YEAR 2011-12 WHICH WAS SUSTAINED BY THE LD.CIT(A). THEREFORE, THE LD.CIT(A) SHOULD NOT HAVE TAXED THE SAME INCOME BY PASSING APPELLATE ORDER ON THE IMPUGNED ISSUE IN THE CASE OF THE ASSESSEE. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES. 5. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE THROUGH THE RECORD CAREFULLY. FOR ADJUDICATION OF THIS ISSUE, WE WOULD TAKE NOTE OF THE FACT THAT IN THE SCRUTINY ASSESSMENT, ASSESSEE HAD DECLARED TURN OF INCOME OF RS.65,27,090/-. THE INCOME OF RS.65,27,090/- WAS INCLUDED AN AMOUNT OF RS.52,04,000/- AS LONG ERM CAPITAL GAIN ON ACCOUNT OF WITHDRAWAL OF THE SAID AMOUNT IN THE F.Y.2012-13 AS PER THE PROVISIONS OF SECTION 54F OF THE ACT. THE ASSESSEE HAD SOLD LAND ALONG OTHER CO-OWNERS DURING F.Y.2010-11 RELEVANT TO THE ASSTT.YEAR 2011-12 AND ALSO DEPOSITED RS.52,04,000/- IN CAPITAL GAIN TAX SAVING SCHEME. HOWEVER, THE ASSESSEE HAD WITHDRAWN THE SAME DURING THE YEAR UNDER CONSIDERATION AND HAD SHOWN LONG TERM CAPITAL GAIN OF RS.52,04,000/- AND PAID TAXES ACCORDINGLY IN THE ASSTT.YEAR 20123- 14. HOWEVER, THE AO HAS PASSED ORDER U/S.143(3) FOR ASSTT.YEAR2011-12 ON 7.3.2014 AND TAXED THE IMPUGNED CAPITAL GAIN IN THE ASSTT.YEAR 2011-12. THE LD.CIT(A) HAS ALSO CONFIRMED THE ORDER OF THE AO FOR TAXING RS.52,04,000/- IN THE ASSTT.YEAR 2011-12 VIDE ORDER DATED 6.1.2016. THEREFORE, THE ASSESSEE HAS FILED REVISED RETURN OF INCOME ON 7.3.2014 BY ITA NO.2489/AHD/2016 - 4- REDUCING RS.52,04,000/- FROM THE TOTAL INCOME WHICH HAS ALREADY BEEN TAXED BY THE AO IN THE ASSTT.YEAR 2012-12. THE CLAIM OF THE ASSESSEE HAS BEEN REJECTED ON THE GROUND THAT THE ASSESSEE SHOULD HAVE FILED THE ORIGINAL RETURN OF INCOME WITHIN THE PRESCRIBED DUE DATE. THEREFORE, THE REASONS FOR REJECTION OF CLAIM OF THE ASSESSEE WAS THAT THAT THE ASSESSEE HAS NOT FILED THE ORIGINAL RETURN OF INCOME WITHIN THE PRESCRIBED DUE DATE. THOUGH THE LD.CIT(A) IN PRINCIPLE HAS HELD THAT THE ASSESSEE HAS RIGHTLY OFFERED THE SUM OF RS.52,04,000/- IN THE ASSTT.YEAR 2013-14, BUT THE SAME AMOUNT WAS SUSTAINED BY THE LD.CIT(A) TO BE TAXED IN THE ASSTT.YEAR 2012- 13. THESE FACTS WERE IN THE NOTICE OF THE AO THAT THE AFORESAID INCOME HAS ALREADY BEEN TAXED IN THE ASSTT.YEAR 2011-12 BUT HE HAS AGAIN TAXED THE SAME IN THE A.Y.2012-13. FURTHER, THE LD.CIT(A) HAS IGNORED THE UNDISPUTED FACTS THAT IMPUGNED INCOME HAS BEEN TAXED TWICE BY THE AO WITHOUT CONSIDERING THE SPECIFIC CIRCUMSTANCES AS ELABORATED ABOVE. IN THE LIGHT OF THE ABOVE CIRCUMSTANCES, WE DO NOT JUSTIFY THE DECISION OF THE LD.CIT(A), THEREFORE, THE APPEAL OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 22 ND NOVEMBER, 2018 AT SURAT. SD/- SD/- (MS.MADHUMITA ROY) JUDICIAL MEMBER (AMARJIT SINGH) ACCOUNTANT MEMBER SURAT; DATED 22/11/2018