Dr. Anil Chandra Chatterjee, Kolkata V. Income Tax Officer, Ward - 55(1), Kolkata, Kolkata

ITA 2539/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99700 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 04-11-2013
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS
• Keywords: Depreciation; Revised return
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC KOLKATA [BEFORE HON BLE S HRI MAHAVIR SINGH, JM ] ITA NO . 2539/KOL/2013 ASSESSMENT YEAR : 2007 - 08 ( A PPELLANT ) (RESPONDENT) DR.ANIL CHANDRA CHATTERJEE - VERSUS - I.T.O., WARD - 55(1 ) , KOLK ATA KOLKATA (PAN: ACPPC 0040 F) FOR THE APPELLANT: SHRI NIRMAL KAUSHIK, FCA FOR THE RESPONDENT: SMT.RANU BISWAS, JCIT DATE OF HEARING : 21 .07.2015 . DATE OF PRONOUNCEMENT : 12.08.2015. ORDER THIS APPEAL OF ASSESSEE ARISES FROM THE O RDER OF LD. CIT(A) - XXXVI, KOLKATA IN APPEAL NO . 735/CIT(A) - XXXVI/KOL/WD - 55(1),KOL / 09 - 10 DATED 13.08 . 2013 . ASSESSMENT WAS FRAMED BY I.T.O., WARD - 55(1 ) U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT ) FOR A.YR . 2007 - 08 VIDE ITS OR DER DATED 29.12.2009 . 2. THE FIRST ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD.CIT(A) IS RIGHT IN SUSTAINING THE DISALLOWANCE MADE BY THE LD.AO TOWARDS ELECTRICITY CHARGES (RS.80,453/ - ); SECURITY CHARGES RS.8,160/ - AND SUNDRY EXPENSES RS.4 5,057/ - . 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A PRACTISING DOCTOR CARRYING ON HIS PROFESSION IN TWO DIFFERENT PLACES NAMELY SEVA HOSPITAL AND SURAKSHA POLYCLINIC APART FROM CARRYING ON HIS PROFESSION AT HIS RESIDENCE. THE ASSESSMENT WA S COMPLETED U/S 143(3) OF THE ACT BY THE LD. AO ON 29.12.2009 WHEREIN A SUM OF RS.,18,453/ - TOWARDS ELECTRICITY CHARGES; RS.8,160/ - TOWARDS SALARY FOR SECURITY AND RS.45,05 7/ - TOWARDS SUNDRY EXPENSES WERE DISALLOWED BY THE LD.AO. ITA NO. 2539/KOL/2013 DR.ANIL CHANDRA CHATTERJEE A.YR. . 2007 - 08 2 AGGRIEVED BY THIS ORDER, THE ASSESSEE CHALLENGED BEFORE THE LD. CIT(A), WHO UPHELD THE DISALLOWANCES MADE BY THE LD. AO AS PERSONAL ELEMENT IN RESPECT OF THIS EXPENDITURE CANNOT BE RULED OUT. AGGRIEVED BY THIS, THE ASSESSEE PREFERRED AN APPEAL BEFORE THIS TRIBUNAL ON THE FOLLOWIN G GROUND : - 1. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME - TAX(APPEALS) ERRED IN SUSTAINING DISALLOWANCE MADE LD. INCOME - TAX OFFICER OF A SUM OF RS.71670/ - BEING AGGREGATE OF RS.18,453/ - ELECTRICITY CHARGES, RS.8160/ - SALARY FOR SECURITY AND RS.45057/ - SUNDRY EXPENSES. 4. SHRI NIRMAL KAUSHIK, FCA THE LD. DR APPEARED ON BEHALF OF THE ASSESSEE AND SMT. RANU BISWAS, JCIT, THE LD. DR APPEARED ON BEHALF OF THE REVENUE. 5. THE LD. AR ARGUED THAT THE ASSESSEE WAS CARRYING ON HIS PROFESSION AT HIS RESIDENCE ALSO AND OFFERED INCOME ACCORDINGLY. HENCE, THE ELECTRICITY CHARGES, SECURITY CHARGES AND SUNDRY EXPENSES ARE LIABLE TO BE ALLOWED. 6. IN RESPONSE TO THIS, THE LD.DR VEHEMENTLY ARGUED THAT EVEN THOUGH THE PROFESSION WAS INDEED CARRIED ON IN HIS RESIDENCE, THE PERSONAL ELEMENT THEREON CANNOT BE RULED OUT. SHE ALSO ARGUED THAT THE ASSESSEE DID NOT DISALLOW ANY EXPENDITURE ON THIS ACCOUNT TOWARDS THE PERSONAL ELEMENT IN THE RETURN OF INCOME. SHE FURTHER ARGUED THAT NO DETAI LS WERE PRODUCED BY THE ASSESSEE IN RESPECT OF SUNDRY EXPENSES AMOUNTING TO RS.45,057/ - . 7. I HAVE HEARD THE RIVAL SUBMISSIONS. IT IS A FACT THAT THE ASSESSEE IS CARRYING ON HIS PROFESSION AT HIS RESIDENCE. CONSIDERING THE FACTS AND CIRCUMSTANCES AND THE INCOME DISCLOSED BY THE ASSESSEE FROM HIS PROFESSION, I RESTRICT THE DISALLOWANCE OF ELECTRICITY CHARGES AND SECURITY CHARGES TO 50% TOWARDS PERSONAL ELEMENT OF EXPENDITURE. IN RESPECT OF SUNDRY EXPENSES OF RS.45,057/ - NO DETAILS WERE PRODUCED BY THE LD. AR EVEN BEFORE ME AND THE LD. AR COULD NOT CONVINCE ME HOW THE CLAIM OF SUCH EXPENDITURE IS IN ORDER. IN VIEW OF THIS, I AM NOT INCLINED TO INTERFERE IN THE ITA NO. 2539/KOL/2013 DR.ANIL CHANDRA CHATTERJEE A.YR. . 2007 - 08 3 FINDINGS OF THE LD. CIT(A) IN THIS REGARD. ACCORDINGLY, THIS GROUND OF APPEAL IS PARTLY ALLOWED. 8 . THE SECOND ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) IS RIGHT IN SUSTAINING THE DISALLOWANCE OF EXPENDITURE @20% ON TELEPHONE EXPENSES, CAR EXPENSES, DRIVERS SALARY AND DEPRECIATION ON CAR. 9. THE LD. AO DISALLOWED 20% OF THE E XPENDITURE TOWARDS TELEP HONE EXPENSES IN THE SUM OF RS. 14,678/ - ; TOWARDS CAR EXPENSES IN THE SUM OF RS.7,480/ - ; TOWARDS DRIVERS SALARY IN THE SUM OF RS.33,850/ - AND TOWARDS DEPRECIATION ON CAR IN THE SUM OF RS .29,772 / - ON AN ESTIMATED BASIS TO TAKE CARE O F THE PERSONAL ELEMENT INVOLVED THEREIN. AGGRIEVED BY THIS ORDER, THE ASSESSEE CHALLENGED BEFORE THE LD. CIT(A), WHO ALSO UPHELD THE DISALLOWANCES MADE BY THE LD. AO. AGGRIEVED BY THIS ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THIS TRIBUNAL ON THE F OLLOWING GROUND : - 2. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN SUSTAINING THE DISALLOWANCE MADE BY THE LD. INCOME - TAX OFFICER OF A SUM OF RS.17,155/ - BEING 20% OF RS.14,678/ - TELEPHONE EXPE NSES, RS.7480/ - OF CAR EXPENSES, RS.33850/ - OF DRIVERS SALARY AND RS.29,772/ - DEPRECIATION ON CAR. 10. THE LD. AR ARGUED THAT THESE EXPENSES ARE SQUARELY INCURRED FOR THE PURPOSE OF PROFESSION OF THE ASSESSEE AND IN ANY CASE THE DISALLOWANCE CANNOT BE MA DE ON AN ESTIMATED BASIS. 11. IN RESPONSE TO THIS, THE LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 12. I HAVE HEARD THE RIVAL SUBMISSIONS. IT IS UNDISPUTED THAT THE ENTIRE EXPENSES DISALLOWED ARE SQUARELY INCURRED BY THE ASSESSEE FO R THE PURPOSE OF HIS PROFESSION. ITA NO. 2539/KOL/2013 DR.ANIL CHANDRA CHATTERJEE A.YR. . 2007 - 08 4 HENCE, I FI ND LOT OF FORCE IN THE ARGUMENT OF THE LD. AR AND THAT NO PART OF DISALLOWANCE OF EXPENSES COULD BE MADE ON AN ESTIMATED BASIS, HENCE I HAVE NO HESITATION TO DELETE THE ADDITIONS MADE IN THE SUM OF RS.17,155/ - 20 % OF RS.85,780/ - ). ACCORDINGLY, THIS GROUND OF APPEAL IS ALLOWED. 13. THE THIRD ISSUE TO BE DECIDED IN THIS APPEAL IS AS TO WHETHER THE LD. CIT(A) IS RIGHT IN NOT TAKING COGNIZANCE OF THE REVISED COMPUTATION OF INCOME FILED BY THE ASSESSEE DURING THE COUR SE OF ASSESSMENT PROCEEDINGS WHICH HAS GOT AN IMPACT IN PENALTY PROCEEDINGS INITIATED U/S 271(1)(C) OF THE ACT. 14. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE FILED A REVISED COMPUTATION OF INCOME ENHANCING THE TOTAL INCOME FROM RS.2,70,369 / - TO RS.4,20,307/ - . THE LD. AO , HAVING CONSIDERED THE INCOME OFFERED IN THE REVISED COMPUTATION OF INCOME , INITIATED PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT. AGGRIEVED BY THIS ORDER, THE ASSESSEE CHALLENGED THIS ISSUE BEFORE THE LD. CIT(A), WHO DISM ISSED THIS GROUND OF THE ASSESSEE ON THE PLEA THAT PENALTY PROCEEDINGS WAS INITIATED BY THE LD. AO AND THE SAID PROCEEDING IS NOT COMPLETED. AGGRIEVED BY THIS, THE ASSESSEE CHALLENGED THIS ISSUE BEFORE THIS TRIBUNAL ON THE FOLLOWING GROUND : - 3. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. COMMISSIONER OF INCOME - TAX (APPEALS) ERRED IN DISMISSING THE GROUND TAKEN IN RESPECT OF LD. INCOME - TAX OFFICER NOT TAKING COGNIZANCE OF REVISED RETURN OF INCOME FILED ELECTRONICALLY ON LINE ON 28.2.2009 V IDE RECEIPT NO.56669280280209 AND THE RELEVANT ACKNOWLEDGMENT SUBMITTED WITH ITO WARD 55(1) ON 5.3.2009 VIDE RECEIPT NO.5511003454. 15. THE LD.AR ARGUED THAT ADMITTEDLY THIS REVISED COMPUTATION OF INCOME WAS FILED VOLUNTARILY BY THE AS SESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS AND SINCE THE TIME LIMIT FOR FILING THE REVISED COMPUTATION OF INCOME U/S 139(5) OF THE ACT HAD EXPIRED, THE ASSESSEE SOUGHT TO OFFER THE ADDITIONAL INCOME BY WAY OF REVISED COMPUTATION OF INCOME. ITA NO. 2539/KOL/2013 DR.ANIL CHANDRA CHATTERJEE A.YR. . 2007 - 08 5 16. IN RESPONSE TO THIS, THE LD . DR SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 17. I HAVE HEARD THE RIVAL SUBMISSI ONS. IT IS A FACT THAT THE ASSESSEE HAD DISCLOSED ADDITIONAL INCOME IN THE REVISED COMPUTATION OF INCOME DURING THE C OURSE OF ASSESSMENT PROCEEDINGS. THIS ADDITIONAL IN COME WAS OFFERED IN THE FORM OF REVISED COMPUTATION OF INCOME INSTEAD OF FILING REVISED RETURN OF INCOME A S ADMITTEDLY THE TIME LIMIT FOR FILING THE REVISED RETURN U/S 139(5) OF THE ACT HA D EXPIRED. NO DOUBT, ANY OFFER OR ANY CLAIM OF THE ASSESSEE SHOULD B E MADE ONLY IN THE VALID RETURN OF INCOME BY THE ASSESSEE AS HELD BY THE DECISION OF HON BLE APEX COURT IN THE CASE OF GOETZE ( INDIA ) LIMITED VS CIT 284 ITR 323 (SC) . THE ADDITIONAL INCOME SO OFFERED HAS BEEN MADE VOLUNTARILY BY THE ASSESSEE IN THE IMP UGNED CASE BEFORE ANY DETECTION BY THE INCOME TAX DEPARTMENT. I WOULD LIKE TO STATE THAT THE DECISION OF THE HON BLE SUPREME COURT IS TO BE APPLIED IN THE FACTS AND CIRCUMSTANCES OF THE CASE AS THE REVISED COMPUTATION OF INCOME ADMITTEDLY COULD BE CONSIDER ED BY THE APPELLATE AUTHORITY THOUGH THE SAME CANNOT BE CONSIDERED BY THE LD. AO. HOWEVER, IT IS OBSERVED THAT WHETHER AT ALL, THE PENALTY U/S 271(1)(C) OF THE ACT HAS BEEN LEVIED IN THE INSTANT CASE BY THE LD. AO CANNOT BE VERIFIED FROM THE FACTS AND MATE RIALS AVAILABLE ON RECORD. NEITHER THE LD. AR NOR THE LD. DR COULD THROW LIGHT ON ME REGARDING THE ABOVE MENTIONED FACT. SINCE THE GROUND RAISED BY THE ASSESSEE IS ONLY ACADEMIC IN NATURE AND IS NOT EMANATING OUT OF THE ASSESSMENT ORDER AND MORE SO, THE IS SUE OF LEVY OF PENALTY U/S 271(1)(C) OF THE ACT IS NOT BEFORE ME, I AM NOT INCLINED TO GIVE ANY FINDING IN THIS REGARD. HENCE, GROUND NO.3 RAISED BY THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. 18. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNC ED IN TH E COURT . SD/ - [MAHAVIR SINGH] JUDICIAL MEMBER DATE: 12.08.2015. R.G.(.P.S.) ITA NO. 2539/KOL/2013 DR.ANIL CHANDRA CHATTERJEE A.YR. . 2007 - 08 6 COPY OF THE ORDER FORWARDED TO : 1 . DR.ANIL CHANDRA C HATTERJEE, GD 200, SALT LAKE, KOLKATA - 700091. 2 I.T.O., WARD - 55(1 ), KOLKATA. 3 . THE CIT, 4. THE CIT(A) - XXXVI , KOLKATA. 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY , BY ORDER, DEPUTY /ASST . REGISTRAR , ITAT, KOLKATA BENCHES