Mohammed Naveen, CHENNAI V. ACIT NC 3 , CHENNAI

ITA 2670/CHNY/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5067 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 07-11-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: HOMI RAJVANSH
• Assessee Lawyers: K BALASUBR AMANIAN
• Keywords: Set aside

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.2670/CHNY/2017 ( )( / ASSESSMENT YEAR : 2009-10 SHRI MOHAMMED NAVEEN, 29, RITHERDON ROAD, VEPERY, CHENNAI - 600 007. PAN : AAFPN 1654 A V. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON-CORPORATE CIRCLE 3, CHENNAI. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SH.K. BALASUBRAMANIAN, ADVOCATE -.+, / 0 / RESPONDENT BY : SHRI HOMI RAJVANSH, CIT 1 / 2% / DATE OF HEARING : 10.04.2019 3') / 2% / DATE OF PRONOUNCEMENT : 17.05.2019 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER : THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) -4, CHENNA I, DATED 20.07.2017 AND PERTAINS TO ASSESSMENT YEAR 2009-10. 2. THERE WAS A DELAY OF 31 DAYS IN FILING THIS APPE AL BY THE ASSESSEE. THE ASSESSEE HAS FILED A PETITION FOR CO NDONATION OF 2 I.T.A. NO.2670/CHNY/17 DELAY. WE HAVE HEARD THE LD.COUNSEL FOR THE ASSESS EE AND THE LD. D.R. WE FIND THAT THERE WAS SUFFICIENT CAUSE FOR N OT FILING THE APPEAL BEFORE THE STIPULATED TIME. THEREFORE, WE CONDONE THE DELAY AND ADMIT THE APPEAL. 3. THE ASSESSEE HAS FILED ADDITIONAL GROUNDS WITH R EGARD TO RATE OF TAX. IN FACT, THE ASSESSEE HAS RAISED GROUNDS A S GROUND NOS.1.1, 1.2, 1.3, 1.4 AND 2, 2.2. THE ASSESSEE FILED AN AF FIDAVIT SAYING THAT HE IS NOT PRESSING THE GROUND NOS.1.1 TO 1.3. WHEN THE APPEAL WAS TAKEN UP FOR HEARING, THE LD.COUNSEL FOR THE ASSESS EE SUBMITTED THAT HE IS NOT PRESSING ANY OF THE GROUNDS TAKEN IN THE ORIGINAL GROUNDS AND HE IS PRESSING ONLY THE ADDITIONAL GROUNDS WITH REGARD TO RATE OF TAX. THE LD.COUNSEL SUBMITTED THAT HE RECEIVED SUC H INSTRUCTION FROM THE ASSESSEE AND MADE ENDORSEMENT TO THAT EFFE CT IN THE APPEAL FOLDER. THEREFORE, THIS TRIBUNAL IS NOT ADJ UDICATING THE ISSUES RAISED BY THE ASSESSEE IN THE ORIGINAL GROUNDS OF A PPEAL. ACCORDINGLY, THE GROUNDS RAISED IN THE ORIGINAL GRO UNDS OF APPEAL ARE DISMISSED AS NOT PRESSED. 4. NOW COMING TO THE ADDITIONAL GROUNDS MADE BEFORE THIS TRIBUNAL WITH REGARD TO RATE OF TAX, SHRI K. BALASU BRAMANIAN, THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSE SSING OFFICER 3 I.T.A. NO.2670/CHNY/17 HAS LEVIED TAX AT FLAT RATE OF 30% ON THE ASSESSED INCOME. AS PER INCOME-TAX RULES, 1962, ACCORDING TO THE LD. COUNSE L, TAX HAS TO BE LEVIED ON SLAB SYSTEM. THEREFORE, THE LD.COUNSEL S UBMITTED THAT THE MATTER MAY BE REMITTED BACK TO THE FILE OF THE ASSE SSING OFFICER TO LEVY THE TAX AS PER SLAB SYSTEM WHICH PREVAILED FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 5. WE HEARD SHRI HOMI RAJVANSH, THE LD. DEPARTMENTA L REPRESENTATIVE ALSO. ACCORDING TO THE LD. D.R., SI NCE THE ASSESSEE IS NOT PRESSING THE GROUNDS ON MERIT, HE MAY NOT HA VE ANY OBJECTION TO REMIT THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER TO LEVY TAX AS PER THE FINANCE ACT RELEVANT TO THE ASSESSME NT YEAR UNDER CONSIDERATION. 6. HAVING HEARD THE LD.COUNSEL FOR THE ASSESSEE AND LD. D.R., THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT RAT E OF TAX WOULD DEPEND UPON THE FINANCE ACT ENACTED DURING THE RELE VANT PERIOD. IF THE FINANCE ACT PROVIDES FOR LEVY OF TAX AS PER SLA B SYSTEM, THE ASSESSING OFFICER IS BOUND TO LEVY TAX ONLY AS PER SLAB SYSTEM PROVIDED IN THE RELEVANT FINANCE ACT. THEREFORE, T HE ORDERS OF BOTH THE AUTHORITIES BELOW ARE SET ASIDE ONLY WITH REGAR D TO RATE OF TAX AND THE MATTER IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. 4 I.T.A. NO.2670/CHNY/17 THE ASSESSING OFFICER SHALL EXAMINE THE RELEVANT FI NANCE ACT WHICH IS RELATABLE TO THE ASSESSMENT YEAR UNDER CONSIDERA TION AND LEVY TAX STRICTLY IN ACCORDANCE WITH THE FINANCE ACT AFTER G IVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON 17 TH MAY, 2019 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESA N) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 17 TH MAY, 2019. KRI. / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-4, CHENNAI-34 4. PRINCIPAL CIT-5, CHENNAI 5. 7: -2 /DR 6. ;( < /GF.