Shri Kevat Jayantkumar Vanani, Bhavnagar V. The Asstt. Commissioner of Income Tax, Circel-1, Bhavnagar

ITA 295/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1708 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 03-02-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAYANT KUMAR
• Keywords: Salary income; Revised return; TDS
• Section: 143(3)

Judgement Text

SMC-ITA NO. 295/AHD/2017 KEVAT JAYANTKUAMR VANANI VS.ACIT ASSESSMENT YEAR: 2013-14 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [ BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT ] ITA NO. 295/AHD/2017 ASSESSMENT YEAR : 2013-14 KEVAT JAYANTKUMAR VANANI ............ APPELLANT NANALAL CHAMBERS, OPP. UNION BANK OF INDIA, LOKHAND BAZAR, BHAVNAGAR-364001 [PAN: ACCPV 5148 C] VS. THE ASSTT. COMMISSIONER OF INCOME-TAX .......................RESPONDENT CIRCLE-1, BHAVNAGAR APPEARANCES BY: TUSHAR P HEMANI FOR THE APPELLANT JAYANT KUMAR FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 27.02.2019 DATE OF PRONOUNCING THE ORDER : 24.05.2019 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE-APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 30 TH DECEMBER 2016 PASSED BY THE CIT(A)-6, AHMEDABAD, I N THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE IN COME-TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2013-14. 2. GRIEVANCES RAISED IN THE APPEAL ARE AS FOLLOWS:- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )-6, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN CONFIRMING ACTION OF T HE ASSESSING OFFICER TAXING HIGHER SALARY INCOME AT RS.16,92,000/- IN PLACE OF ACTUAL SALARY INCOME OF RS.5,64,000/-, IN THE ASSESSMENT COMPLETED U/S 143( 3) OF THE INCOME-TAX ACT, 1961. HE HAS NOT APPRECIATED THAT NON GENUINE INCO ME, MERELY INADVERTENTLY AND MISTAKENLY REPORTED IN RETURN OF INCOME BY THE APPELLANT, CANNOT BE SUBJECTED TO INCOME TAX. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEA LS)-6, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN NOT DIRECTING THE ASSE SSING OFFICER TO ASSESS THE ACTUAL SALARY INCOME AT RS.5,64,000/- IN PLACE OF I NADVERTENTLY AND MISTAKENLY REPORTED HIGHER SALARY INCOME OF RS.16,92,000/- IN RETURN OF INCOME BY THE APPELLANT, THOUGH SUPPORTED BY DOCUMENTARY EVIDENCE S. SMC-ITA NO. 295/AHD/2017 KEVAT JAYANTKUAMR VANANI VS.ACIT ASSESSMENT YEAR: 2013-14 PAGE 2 OF 3 3. TO ADJUDICATE ON THIS APPEAL, ONLY A FEW MATERIA L FACTS NEED TO BE TAKEN NOTE OF. WHILE THE ASSESSING OFFICER HAS TAXED THE SALA RY INCOME OF RS.16,92,000/- AS REPORTED BY THE ASSESSEE, THE CLAIM OF THE ASSESSEE IS THAT THE SALARY INCOME WAS INADVERTENTLY SHOWN AT RS.16,92,000/- AS AGAINST TH E ACTUAL SALARY INCOME OF RS.5,64,000/-. WHEN THIS GRIEVANCE WAS RAISED BEFO RE THE CIT(A), HE REJECTED THE SAME BY OBSERVING AS FOLLOWS:- 7. I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDE R AND THE SUBMISSIONS OF THE APPELLANT. THE BRIEF FACT OF THE CASE IS THAT T HE APPELLANT WAS MAJOR SHAREHOLDER AND DIRECTOR OF MODEST INFRASTRUCTURE L TD. AND DERIVED SALARY INCOME OF RS. 16,92,000/- IN THE F.Y. 2012-13 AND T AX AT SOURCE WAS ALSO DEDUCTED ON THE ABOVE SALARY INCOME. THE SAME INCOM E WAS SHOWN AND DECLARED IN RETURN OF INCOME FILED FOR A.Y. 2013-14 ON 31-3-2013 . THE RETURN OF INCOME DECLARING SALARY INCOME OF RS. 16,92,000/ - WAS ACCEPTED BY THE AO VIDE ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 3 1-12-2015 WITHOUT MAKING ANY ADDITION. 7.1 THOUGH THE AO HAS NOT MADE ANY ADDITION, THE AP PELLANT HAS FILED APPEAL AND CLAIMED THAT THE SALARY INCOME SHOULD BE REDUCE D TO RS. 5,64,000/-. THE APPELLANT HAS RAISED THE GROUND THAT THE SALARY INC OME WAS WRONGLY SHOWN BY HIM AT RS. 16,92,0007- IN BOOKS OF ACCOUNTS AND RET URN OF INCOME THOUGH THE ACTUAL SALARY WAS RS.5,64,000/-. THE CONTENTION OF THE APPELLANT IS NOT TENABLE AND APPEARS TO BE FACTUALLY INCORRECT AS THE COMPAN Y HAS DEDUCTED THE TAX AT SOURCE ON THE TOTAL SALARY OF RS 16,92,000/- SHOWN IN THE RETURN OF INCOME. THE APPELLANT COULD NOT PROVE THAT THE ORIGINAL FOR M NO. 16 ISSUED BY THE COMPANY IS NOT GENUINE. IT IS SEEN THAT THE APPELLA NT HAS RESIGNED FROM THE DIRECTORSHIP OF THE COMPANY AND SOLD THE MAJOR SHAR E HOLDING THEREFORE DUE TO THIS DEVELOPMENT THE NEW ISSUE WAS RAISED BY THE AP PELLANT AND NEW DOCUMENTS WERE FILED. HOWEVER THE SAME CANNOT TAKE PRECEDENCE OVER THE ORIGINAL TDS CERTIFICATE ISSUED BY THE COMPANY AND FILED BY THE APPELLANT ALONG WITH RETURN OF INCOME. THE CONTENTION OF THE APPELLANT THAT SALARY INCOME WAS INADVERTENTLY SHOWN AT RS. 16,92,000/- I N PLACE OF RS, 5,64,000/- IS APPEARS TO BE AN AFTERTHOUGHT. IT IS UNDISPUTED FACT THAT THE SALARY WAS DEBITED IN THE BOOKS OF ACCOUNT OF THE COMPANY, TAX AT SOURCE WAS ALSO DEDUCTED BY THE EMPLOYER ON RS. 16,92,000/-, THE AP PELLANT HIMSELF HAS SHOWN THE SAME AMOUNT IN THE RETURN OF INCOME AND A LSO DID NOT FILE ANY REVISED RETURN TO RECTIFY THE MISTAKE. HENCE THE CO NTENTION OF THE APPELLANT IS NOT TENABLE THAT THE SALARY WAS WRONGLY SHOWN IN TH E RETURN OF INCOME. THEREFORE THE RETURN INCOME ASSESSED BY THE AO IS U PHELD. THE GROUNDS OF APPEAL ARE DISMISSED. 4. THE ASSESSEE IS NOT SATISFIED AND IS IN FURTHER APPEAL BEFORE THE TRIBUNAL. 5. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. SMC-ITA NO. 295/AHD/2017 KEVAT JAYANTKUAMR VANANI VS.ACIT ASSESSMENT YEAR: 2013-14 PAGE 3 OF 3 6. I FIND THAT THE DETAILS AS PER 26AS SHOW SALARY INCOME OF RS.5,64,000/- AND THERE IS A PRIMA FACIE REASONABLE EXPLANATION FOR MAKING MISTAKE IN REPORT ING SALARY INCOME. I, THEREFORE, CONSIDER IT APPROPRIATE TO R EMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION, BY WAY OF A SPE AKING ORDER AND AFTER GIVING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE, ON THE CLAIM OF THE ASSESSEE ON MERITS. ORDERED, ACCORDINGLY. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 24 TH MAY, 2019. SD/- PRAMOD KUMAR (VICE PRES IDENT) AHMEDABAD, THE 24 TH DAY OF MAY, 2019 **BT COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD 1. DATE OF DICTATION: .....ORDER PREPARED AS PER 2 PAGES MANUSCRIPTS OF HONBLE VP-ATTACHED.......... 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: .... 24.05.2019..... 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR . P.S./P.S.: .... 24.05.2019...... . 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 24.05.2019... 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK : ............ 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK : . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER: 8. DATE OF DESPATCH OF THE ORDER: ......