Shri Janak Maganbhai Odiya, HUF, Surat V. The Income Tax Officer, Ward-9(2), Surat

ITA 2841/AHD/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 9440 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 19-02-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 21-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S B VAIDYA
• Keywords: Revised return
• Section: 133(6); 148

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI B.P. JAIN, ACCOUNTANT MEMBER ./ ITA.NO.2841 AND 2842/AHD/2014 / ASSTT. YEAR: 2009-2010 JANAK MAGANBHAI ODIYA HUF 300, SAMAS SOCIETY NR. DHARAM NAGAR A.K ROAD VARACHHA, SURAT 395 008. PAN : AAEHJ 5773 M VS ITO, WARD-9(2) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI S.B. VAIDYA, AR REVENUE BY : PRAJNA PARAMITA, SR.DR / DATE OF HEARING : 19/02/2016 / DATE OF PRONOUNCEMENT: 19/02/2016 $%/ O R D E R THESE TWO APPEALS OF THE ASSESSEE AROSE FROM THE OR DERS OF THE LD.CIT(A)-V, SURAT EACH DATED 1.8.2014 FOR THE ASST T.YEAR 2009-10. 2. THE ASSESSEE IN ITA NO.2841/AHD/2014 HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN DISALLOWING THE CLAIM OF SET OFF OF LOSS OF RS.2,76 ,306/- ITA NO.2841 AND 2842/AHD/2014 2 2. IT IS THEREFORE PRAYED THAT THE ABOVE DISALLOWA NCE MADE BY AO AND CONFIRMED BY THE LD.CIT(A) MAY PLEASE BE DELETE D. 3. THE ASSESSEE IN ITA NO.2842/AHD/2014 HAS RAISED THE FOLLOWING GROUNDS. 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS LAW ON THE SUBJECT, THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ACTION OF THE AO IN IMPOSING PENALTY OF RS.83,570/- U/S.271(1)(C) OF TH E I.T.ACT. 2. IT IS THEREFORE PRAYED THAT THE ABOVE DISALLOWA NCE MADE BY AO AND CONFIRMED BY THE LD.CIT(A) MAY PLEASE BE DELETE D. 4. SINCE ISSUE IN BOTH THE APPEALS IS INTERRELATED, THEREFORE, I PROCEED TO DECIDE BOTH THE APPEALS BY THIS CONSOLIDATED ORDER. FIRST I TAKE UP ITA NO.2841/AHD/2014 BEING QUANTUM APPEAL HEREINBELOW. 5. BRIEF FACTS, AS EMANATING FROM THE ORDER OF THE LD.CIT(A) ARE REPRODUCED HEREINBELOW: 4. DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS , ON PERUSAL OF THE P & L A/C. ATTACHED WITH THE RETURN OF INCOME FILED U/S 148, IT IS OBSERVED THAT THE ASSESSEE HAS EXPLAINED THE CASH D EPOSIT BY MEANS OF AGRICULTURAL INCOME OF RS. 3,32,410/- AND EMBROIDER Y WORK RECEIPT OF RS. 4,49,595/-. ACCORDINGLY TO VERIFY THE CLAIM OF ASSESSEE IS RESPECT OF AGRICULTURAL INCOME, NOTICE U/S 133(6) OF THE IT AC T WAS ISSUED TO EXAMINE THE FACT INDEPENDENTLY. SUBSEQUENTLY CONFIR MATION IS RECEIVED AND HENCE, NO ADVERSE REFERENCE IS DRAWN ON THIS IS SUE. AS FAR AS EMBROIDERY WORK RECEIPT OF RS. 4,49,59S/- IS CONCER NED, IT IS FOUND THAT THE ASSESSEE HAS CLAIMED SHARE LOSS OF RS. 2,76,306 /- AGAINST THIS INCOME. IT IS PERTINENT TO MENTION HERE THAT NO LOS S CAN BE ALLOWED TO BE SET OFF AGAINST ANY INCOME IF IT IS NOT SHOWN IN TH E ORIGINAL RETURN OF INCOME OF IN THE REVISED RETURN OF INCOME. IN THIS CASE IT IS PROVED ON RECORD THAT THE ASSESSEE HAS NEITHER CLAIMED SET OF F OF LOSS IN THE RETURN OF INCOME FILED U/S 139(1) NOR FILED ANY REVISED RE TURN OF INCOME CLAIMING SUCH SET OFF LOSS. THIS FACT IS SUBSTANTIA TED FROM THE JUDGMENT OF THE HON'BLE SUPREME DELIVERED IN THE CASE OF GOE TZE (INDIA) LTD. V/S. COMMISSIONER OF INCOME TAX (284 ITR 323). THE AR OF THE ASSESSEE APPEARED ON 11.03.2013 AND FILED EXPLANATION IN RES PONSE TO THE ABOVE SHOW CAUSE. THIS EXPLANATION OF THE AR OF THE ASSES SEE IS EXAMINED AND ITA NO.2841 AND 2842/AHD/2014 3 FOUND INCORRECT IN VIEW OF THE DECISION OF THE HON' BLE SUPREME COURT AS MENTIONED SUPRA, AND HENCE I HEREBY DISALLOW THE CL AIM OF SET OF LOSS OF RS. 2,76,306/- AND THE SAME IS ADDED TO THE TOTAL I NCOME OF THE ASSESSEE FOR AY 2009-10. ALSO, IT IS PROVED ON RECORD THAT T HE ASSESSEE FILED INACCURATE PARTICULARS OF INCOME THEREFORE PENALTY PROCEEDINGS U/S 271(1)(C) IS INITIATED. 6. THE LD.CIT(A) CONFIRMED THE ACTION OF THE AO. 7. IT WAS ARGUED BY THE LD.COUNSEL FOR THE ASSESSEE THAT THE CLAIM HAS BEEN REVISED IN THE REVISED RETURN OF INCOME FILED IN RE SPONSE TO THE NOTICE UNDER SECTION 148 OF THE ACT, AND THEREFORE, THE RATIO LA ID DOWN IN THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (IN DIA) LTD. VS. CIT, 284 ITR 323 (SC) IS IN THE FAVOUR OF THE ASSESSEE. HOW EVER, THE CLAIM IS ALSO MADE BEFORE THE TRIBUNAL, WHERE THE SAME CAN BE ENT ERTAINED BY THE TRIBUNAL. ACCORDINGLY, HE PRAYED TO ALLOW THE CLAIM OF THE A SSESSEE. THE LD.DR, ON THE OTHER HAND, RELIED UPON ORDERS OF THE BOTH THE AUTHORITIES BELOW. 8. AFTER HEARING BOTH THE SIDES, I AM OF THE OPINIO N THAT THE ASSESSEE HAS REVISED THE RETURN AND HAS MADE THE CLAIM, THOUGH N OT SEPARATELY, BUT THROUGH PROFIT & LOSS ACCOUNT. ALSO, THE HONBLE SUPREME C OURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA) HAS RESTRICTED THE POWER OF TH E ASSESSING AUTHORITY TO ENTERTAIN THE CLAIM FOR DEDUCTION, OTHERWISE THAN B Y A REVISED RETURN, BUT DOES NOT IMPINGE ON THE POWER OF THE INCOME TAX APPELLAT E TRIBUNAL UNDER SECTION 254 OF THE INCOME TAX ACT, 1961. THEREFORE, IN THE CIRCUMSTANCES AND FACTS OF THE CASE, THOUGH THE ASSESSEE HAS ALREADY MADE C LAIM IN THE REVISED RETURN THROUGH PROFIT & LOSS ACCOUNT, AND ACCORDINGLY, I H EREBY ALLOW THE CLAIM OF SET OFF OF LOSS OF RS.2,76,306/- AS CLAIMED BY THE ASSE SSEE IN THE IMPUGNED YEAR. IT IS ORDERED ACCORDINGLY, AND THE ORDER OF THE LD. CIT(A) IS REVERSED. THUS, ALL THE GROUNDS OF THE APPEAL OF THE ASSESSEE ARE ALLOW ED. 9. NOW I TAKE UP THE APPEAL OF THE ASSESSEE IN ITA NO.2842/AHD/2014. ITA NO.2841 AND 2842/AHD/2014 4 10. THE AO HAS LEVIED PENALTY ON THE QUANTUM ADDITI ON MADE. SINCE QUANTUM HAS BEEN DIRECTED TO BE DELETED BY ME HEREI NABOVE, THEREFORE, THE PENALTY PROCEEDINGS DO NOT HAVE ANY LEG TO STAND, A ND THEREFORE, THE SAME IS DIRECTED TO BE DELETED. ACCORDINGLY, THE PENALTY O F RS.83,570/- U/S.271(1)(C) OF THE ACT IS DELETED, AND REVERSE THE ORDER OF THE LD.CIT(A) ON THIS ISSUE. 11. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 19 TH FEBRUARY, 2016 AT AHMEDABAD. SD/- ( B.P. JAIN ) ACCOUNTANT MEMBER