The ACIT,(OSD)Circle-9, Ahmedabad V. Smt. Shital M.Sheth, Ahmedabad

ITA 2597/AHD/2011

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 89476 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 19-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Assessee Lawyers: D K PARIKH
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE S/SHRI G. D. AGRAWAL, VP & RAJPAL YADAV, J M ITA NO.2597/AHD/2011 ASST. YEAR 2007-08 .ASSTT. C.I.T. (OSD), CIR.9, AHMEDABAD. VS SMT. SHITAL M. SHETH, ANANDDHAM SOCIETY, KIRAN PARK, NEW WADAJ, AHMEDABAD-13. (APPELLANT) (RESPONDENT) PA NO. AKHPS9202R APPELLANT BY SHRI B. L. YADAV, SR. DR RESPONDENT BY SHRI D. K. PARIKH, AR DATE OF HEARING: 14/5/2015 DATE OF PRONOUNCEMENT: 22/5/2015 O R D E R PER SHRI RAJPAL YADAV, JUDICIAL MEMBER. THE REVENUE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LD. CIT(A) DATED 30 TH AUGUST, 2011 PASSED FOR AY 2007-08. THE SOLITARY SUBSTANTIAL GRIEVANCE OF THE REVENUE IS THAT LD. CI T(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS.3,26,764/- WHICH WA S DISALLOWED BY THE AO WITH THE HELP OF SECTION 88EOF THE I.T. ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE HA S FILED HER RETURN OF INCOME ON 23.10.2007, DECLARING AN INCOME OF ITA NO.2597/AHD/2011 ASST. YEAR 2007-08 2 RS.12,67,550/-. THE CASE OF THE ASSESSEE WAS SELECT ED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SECTION 143(2) OF THE I.T. ACT, 1961 WAS ISSUED AND SERVED UPON THE ASSESSEE . ON SCRUTI NY OF ACCOUNTS, IT REVEALED TO THE AO THAT ASSESSEE HAD CLAIMED A R EBATE OF RS.3,26,764/- U/S 88E OF THE I.T. ACT, IN RESPECT O F SECURITY TRANSACTION TAX PAID BY THE ASSESSEE. THE LD. AO DI SALLOWED THIS CLAIM OF THE ASSESSEE ON THE GROUND THAT ASSESSEE F AILED TO SUBMIT FORM NOS.10DB AND 10DC ALONG WITH RETURN OF INCOME. 3. ON APPEAL, LD. FIRST APPELLATE AUTHORITY HAS DEL ETED THE DISALLOWANCE BY OBSERVING THAT AS FAR AS PAYMENT OF SECURITY TRANSACTION TAX BY THE ASSESSEE ARE CONCERNED, THER E IS NO DISPUTE, SHE HAS FILED FORM NOS.10DB & 10DC BELATEDLY I.E. D URING THE ASSESSMENT PROCEEDINGS. THE EVIDENCE EXHIBITING PAY MENT TAXES HAS ALREADY BEEN FILED DURING THE ASSESSMENT PROCEEDING S. ACCORDING TO THE FIRST APPELLATE AUTHORITY THE REQUIREMENT OF SU BMISSIONS OF FORM NOS.10DB & 10DC ALONG WITH RETURN IS DIRECTORY REQU IREMENT AND IF AN ASSESSEE FAILED TO SUBMIT SUCH FORM, BUT SUBMIT THE FORMS DURING ASSESSMENT PROCEEDINGS THEN IT IT TO BE CONSTRUED T HAT ASSESSEE HAD SUFFICIENTLY COMPLIED WITH THE REQUIREMENT OF THE P ROVISIONS AND REBATE WOULD NOT BE DENIED TO THE ASSESSEE. THE FIR ST APPELLATE AUTHORITY HAS FORTIFIED HER CONCLUSION BY THE DECIS ION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF ITO VS. VXL INDIA LTD. REPORTED IN 312 ITR 187. IN THIS CASE THE AUDIT REPORT UNDER SE CTION 80HHC WAS NOT SUBMITTED ALONG WITH THE RETURN BUT WAS SUBMITT ED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IT WAS CONSTRUED THAT ASSESSEE HAS COMPLIED WITH THE REQUIREMENT. ITA NO.2597/AHD/2011 ASST. YEAR 2007-08 3 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED ON RECORD COPY OF TRIBUNALS ORDER IN ITA NO.1713/DEL/ 2009 PASSED IN THE CASE OF ACIT,CIR-II, FARIDABAD VS. SH. PARVEEN JAIN AND A COPY OF ITAT ORDER IN THE CASE OF ITO VS. CHUNILAL T. MEHTA RENDERED IN ITA NO.227/KOL/ OF 2010 REPORTED IN 18 TAXMANN.COM.96. IN THESE JUDGMENTS IT HAS BEEN OBSERVED BY THE ITAT THAT THO UGH THE EXPRESSION SHALL HAS BEEN EMPLOYED IN SUB-SECTI ON (1) OF SECTION 88E BUT THIS EXPRESSION IS TO BE CONSTRUED AS A DIR ECTORY AND NOT MANDATORY. THE ITAT DELHI BENCH HAS MADE A REFERENC E TO A LARGE NUMBER OF DECISIONS NAMELY CIT VS. PUNJAB FINANCIA L CORPORATION 254 ITR 6 (P & H), CIT VS. SHIVA RICE & DAL MILL 27 3 ITR 265 (P & H), CIT VS. VALI COTTON TRADERS PVT. LTD. 288 ITR 400 ( MAD), CIT VS.KRISHAN NAIR 259 ITR 727 (KER) & CIT VS. PANNA CHEMICAL WORKS 292 ITR 147 (MP), IN ALL THESE DECISIONS ASSESSEES FAILED TO SUBMIT EITHER FORM NO.10DB, AUDIT REPORT AS REQUIRED UNDER SECTION 88HHC OR ANY OTHER FORM REQUIRED FOR GRANT OF DEDUCTION U NDER SECTION 80HHC, 80I ETC. THE EXPRESSION SHALL HAS BEEN USE D IN THE PROVISIONS FOR REQUIRING THE ASSESSEE TO SUBMIT CER TIFICATE, AUDIT REPORT, FORM NO.10CC, 10D ETC. ALL THE HIGH COURTS HAVE UNANIMOUSLY OBSERVED THAT IF THESE DOCUMENTS ARE SUBMITTED DURI NG THE COURSE OF ASSESSMENT PROCEEDINGS AND THE AO HAS VERIFIED ALL THESE THEN THE BENEFIT TO THE ASSESSEE SHOULD NOT BE DENIED MERELY ON THE GROUND THAT THESE FORMS/CERTIFICATES WERE NOT SUBMITTED AL ONG WITH THE RETURN. WE ARE OF THE VIEW THAT LD. FIRST APPELLATE AUTHORI TY HAS APPRECIATED THE CONTROVERSY IN RIGHT PERSPECTIVE AND NO INTERFE RENCE IS CALLED IN ITA NO.2597/AHD/2011 ASST. YEAR 2007-08 4 THE ORDER OF CIT(A). IN VIEW OF THE ABOVE, WE DO NO T FIND ANY MERIT IN THE APPEAL OF REVENUE AND IT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/5/2015 SD/- SD/- (G. D. AGRAWAL) VICE PRESIDENT (RAJPAL YADAV) JUDICIAL MEMBER MAHATA/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 18/5/2015 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 18/5/2015 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: