Shri Shankarlal Tuliram Gilada , Kalaburgi V. Assistant Commissioner of Income Tax Circle-1 , Kalaburgi

ITA 2573/BANG/2018

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 4258 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 5 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 12-09-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRIYADARSHI MISHRA
• Assessee Lawyers: HARI KUTSAN
• Keywords: Revised return; Set aside
• Section: 143(3); 234B; 14A; 250; 143(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI. CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA NO.2573/BANG/2018 ASSESSMENT YEAR : 2015-16 SHRI SHANKARLAL TULSIRAM GILADA, H.NO.1-10/5, KHOOBA PLOTS, KALABURAGI-585 102. PAN AHWPS 6995 D VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-1, KALABURAGI. APPELLANT RESPONDENT APPELLANT BY : SHRI SHREE HARI KUTSAN, ADVOCATE RESPONDENT BY : SHRI PRIYADARSHI MISHRA, ADDL. CIT (DR) DATE OF HEARING : 02-02-2021 DATE OF PRONOUNCEMENT : 12-02-2021 O R D E R PER BEENA PILLAI, JUDICIAL MEMBER: PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 29/06/2018 PASSED BY THE LD.ACIT(A) GULBURGA, ON FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME- TAX APPEALS, PASSED UNDER SECTION 250 OF THE ACT IN SO FAR AS IT IS AGA INST THE APPELLANT IS PAGE 2 OF 6 ITA NO.2573/BANG/2018 OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABI LITIES AND THE FACTS AND CIRCUMSTANCES IN THE APPELLANT'S CASE. 2. THE APPELLANT DENIES HIMSELF LIABLE TO BE ASSESS ED AT A TOTAL INCOME AS DETERMINED BY THE LEARNED AO AS AGAINST THE TOTA L INCOME DECLARED BY THE APPELLANT IN THE RETURN OF INCOME ON THE FAC TS AND CIRCUMSTANCES OF THE CASE. 3. THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE DISALLOWANCE OF INTEREST PAID ON UNSECURED LOAN OF RS.4,14,485/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 4. THE LEARNED CIT(A) IS NOT JUSTIFIED IN UPHOLDING THE DISALLOWANCE MADE UNDER SECTION 14A OF THE ACT OF RS.36,126/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 5. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER WI TH THE HON'BLE CHIEF COMMISSIONER OF INCOME TAX, THE APPELLANT COMPANY D ENIES ITSELF LIABLE TO BE CHARGED TO INTEREST UNDER SECTIONS 234A& 234B OF THE ACT WHICH UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE DESER VES TO BE CANCELLED. THE CALCULATION OF INTEREST UNDER SECTIONS 234A& 23 4B IS NOT IN ACCORDANCE WITH LAW AS THE RATE, AMOUNT AND METHOD FOR CALCULATING INTEREST IS NOT DISCERNIBLE FROM THE ORDER OF ASSES SMENT. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. 7. IN THE VIEW OF THE ABOVE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPEAL, THE APPELLANT PR AYS THAT THE APPEAL MAY BE ALLOWED IN THE INTEREST OF JUSTICE AND EQUIT Y. 2. AT THE OUTSET, THE LD,AR SUBMITTED THAT, ASSESSE E HAS FILED FOLLOWING ADDITIONAL GROUND BEFORE THIS TRIBUNAL : 1. THE ASSESSMENT PROCEEDINGS HAVING BEEN INITIATED BY ISSUE OF NOTICE U/S 143(2) AND CONCLUDED BY PASSING OF ORDER U/S 14 3(3) ON THE ORIGINAL RETURN OF INCOME INSTEAD OF REVISED RETURN OF INCOM E IS UNSUSTAINABLE IN LAW ON THE FACTS AND CIRCUMSTANCES OF THE CASE. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, DELETE OR SUBSTITUTE ANY OF THE GROUNDS URGED ABOVE. IN THE VIEW OF THE ABOVE ADDITIONAL GROUNDS OF APPE AL, THE GROUNDS OF APPEAL FILED AT THE TIME OF FILING THIS APPEAL AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF THE HEARING OF THE APPE AL, THE APPELLANT PRAYS THAT THIS APPEAL MAY BE ALLOWED IN THE INTERE ST OF JUSTICE AND EQUITY. 3. IT WAS SUBMITTED THAT THIS IS A LEGAL GROUND, TH AT EMANATES FROM THE RECORDS AND THAT NO NEW FACTS NEEDS TO BE CONSIDERED FOR CONSIDERING THE CASE. HE PLACED RELIANCE ON DECISIO N OF HONBLE PAGE 3 OF 6 ITA NO.2573/BANG/2018 SUPREME COURT IN CASE OF NTPC LTD.VS. CIT REPORTED IN 229 ITR 383. 4. ON THE CONTRARY, THE LD.SR.DR OPPOSED FOR ADMISS ION OF THE ADDITIONAL GROUND. 5. WE HAVE PERUSED THE SUBMISSION ADVANCED BY BOTH SIDES IN LIGHT OF RECORDS PLACED BEFORE US. 6. WE NOTE THAT THE ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND IS PURELY A LEGAL ISSUE. IT IS AL SO NOTED THAT NO NEW RECORDS NEEDS TO BE VERIFIED FOR ADJUDICATING I T. RESPECTFULLY FOLLOWING THE RATION LAID DOWN BY HONBLE SUPREME COURT IN CASE OF NTPC LTD.VS. CIT(SUPRA), WE ADMIT THE ADDITIONAL GROUND SO RAISED. 7. WE NOTE THAT ISSUE RAISED BY THE ASSESSEE IN THE ADDITIONAL GROUND GOES TO THE ROUTE OF THE ASSESSMENT. WE THER EFORE FIRST ADJUDICATE THE ISSUE RAISED IN THE ADDITIONAL GROUN D. 8. IT HAS BEEN ARGUED THAT, THE ASSESSMENT ORDER PA SSED BY THE LD.AO UNDER SECTION 143(3) IS BAD IN LAW AS IT HAS BEEN CONCLUDED ON THE ORIGINAL RETURN OF INCOME INSTEAD OF THE REVISED INCOME FILED BY ASSESSEE. BRIEF FACTS OF THIS ISSUE IS THAT: 9. THE LD.AR SUBMITTED THAT, THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 31/10/2015 DECLARING TOTAL INCO ME OF RS.62,72,220/-. SUBSEQUENTLY REVISED RETURN WAS FIL ED ON THE SAME DATE DECLARING TOTAL INCOME OF RS.71,73,055/-. THE LD.AR SUBMITTED THAT ALL THE SUBMISSIONS MADE BY ASSESSEE WAS IN PAGE 4 OF 6 ITA NO.2573/BANG/2018 RESPECT OF INCOME DECLARED BY ASSESSEE IN THE REVIS ED RETURN. HE SUBMITTED THAT VIDE LETTER DATED 17/05/2018 ASSESSE E HAS INFORMED THE LD.CIT(A) REGARDING THE ASSESSMENT HAV ING CONCLUDED ON THE INCOME DECLARED BY ASSESSEE IN THE ORIGINAL RETURN OF INCOME, AS AGAINST THE REVISED RETURN OF INCOME. 10. HE THUS SUBMITTED THAT, THE ASSESSMENT ORDER DA TED 15/12/2017 WAS CONCLUDED BY THE LD.AO BY CONSIDERIN G THE INCOME DECLARED BY ASSESSEE IN THE ORIGINAL RETURN OF INCOME WHICH IS BAD IN LAW. 11. ON THE CONTRARY, LD.SR.DR PLACED RELIANCE ON TH E ORDERS PASSED BY AUTHORITIES BELOW. 12. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SI DES IN LIGHT OF RECORDS PLACED BEFORE US. 13. ON PERUSAL OF THE COMPUTATION OF INCOME BY THE LD.AO, IT IS CLEAR THAT THE INCOME DECLARED BY ASSESSEE IN THE ORIGINAL RETURN HAS BEEN CONSIDERED BY THE LD.AO. THE LD.AO CARRIED OUT ASSESSMENT BASED ON THE ORIGINAL RETURN OF INCOME INSTEAD OF THE REVISED RETURN FILED BY ASSESSEE. THUS IN OUR VIEW, THE ASSESSMENT ORDER PASSED BY THE LD.AO IS WITHOUT APP LICATION OF MIND AND DESERVES TO BE SET ASIDE. 14. WE THEREFORE HOLD THE ASSESSMENT ORDER PASSED B Y THE LD.AO TO BE BAD IN LAW AND DESERVES TO BE QUASHED. AS WE HAVE QUASHED THE ASSESSMENT ORDER, THE ISSUES RAISED BY ASSESSEE ON MERITS NEED NOT BE ADJUDICATED. PAGE 5 OF 6 ITA NO.2573/BANG/2018 ACCORDINGLY APPEAL FILED BY ASSESSEE STANDS ALLOWED ON THE LEGAL ISSUE RAISED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH FEBRUARY, 2021 SD/- SD/- (CHANDRA POOJARI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE, DATED, THE 12 TH FEBRUARY, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 6 OF 6 ITA NO.2573/BANG/2018 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -2-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -2-2021 JM/AM 4. DRAFT DISCUSSEDAPPROVED BY SECOND MEMBER. -2-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -2-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -2-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -2-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -2-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS