JAINAM CONSTRUCTION, MUMBAI V. ITO WD 13(3)(4), MUMBAI

ITA 3608/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84419 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 17-12-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHILENDRA YADAV
• Assessee Lawyers: NARAYAN ATAL
• Keywords: Rectification of order; Revised return
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J MUMBAI . . , , BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER /AND SHRI SANJAY ARORA, ACCOUNTANT MEMBER ITA NO.3608/MUM/2013 (A.Y.2008-09) M/S. JAINAM CONSTRUCTION, B-10, SHANKHESHWAR DARSHAN, SETH MOTISHA LANE, MAZGAON, MUMBAI - 400 010 PAN: AACFJ 8965D (APPELLANT ) VS. INCOME TAX OFFICER, WARD 13(3)(4), 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400 020 (RESPONDENT) APPELLANT BY : SHRI NARAYAN A TAL RESPONDENT BY : SHRI AKHILENDRA YADAV DATE OF HEARING : 17/12/2014 DATE OF PRONOUNCEMENT : 17 /12/2014 ORDER PER I.P.BANSAL, J.M: THIS IS AN APPEAL FILED BY THE ASSESSEE AND IT IS DIRECTED AGAINST ORDER PASSED BY LD. CIT(A)-24, MUMBAI DATED 19/02/2013 FOR ASSE SSMENT YEAR 2008-09. GROUNDS OF APPEAL READ AS UNDER: 1.THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) -24, MUMBAI [HEREAFTER REFERRED TO AS THE CIT(A)1 ERRED IN CONFIRMING THAT THE CLAIM F OR REFUND OF EXCESS ADVANCE TAX AID CAN BE MADE ONLY BY FILING FORM NO 30 WITHIN STIPUL ATED TIME AND OTHERWISE AND ACCORDINGLY CONFIRMED THE VIEW OF THE ASSESSING OFF ICER (AO) THAT THE CLAIM FOR REFUND OF TAX CANNOT BE MADE BY MOVING AN APPLICATION U/S 154 OF THE INCOME TAX ACT AS THE RECTIFICATION OF MISTAKE APPARENT FROM RECORDS. YOUR APPELLANT SUBMITS THAT THE CLAIM FOR CREDIT OF ADVANCE TAX PAID WHICH WAS NOT REFLECTED IN THE RETURN OF INCOME DUE TO INADVERTEN CE BUT IS REFLECTED IN FORM 26AS AMOUNTS TO A MISTAKE APPARENT FROM RECORDS AND ACCO RDINGLY CAN BE RECTIFIED U/S 154 OF THE ACT. 2 THE CIT(A) ERRED IN REJECTING THE CLAIM FOR REFUN D OF TAX MADE BEFORE HIM ON THE GROUND THAT SUCH CLAIM CANNOT BE ENTERTAINED BY THE APPELL ATE AUTHORITIES ITA NO.3608/MUM/2013 (A.Y.2008-09 2 YOUR APPELLANT SUBMITS THAT IT IS WELL WITHIN THE J URISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN ANY CLAIM MADE BY THE APPELLANT WHICH HAS NOT BEEN MADE BY WAY OF FILING A REVISED RETURN. YOUR APPELLANT THEREFORE SUBMITS THAT DIRECTION MAY BE GIVEN TO THE AO TO ALLOW CREDIT FOR ADVANCE TAX PAID RS.50,00,000/- AND ACCORDINGLY GRA NT THE REFUND DUE TO THE APPELLANT. 2. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDER ATION WAS FILED ON 27/9/2008 DECLARING NIL INCOME AND SUCH RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TAX ACT, 1961 (THE ACT) ON 19/12/2010. AFTE R PROCESSING THE RETURN THE ASSESSEE VIDE LETTER DATED 21/3/2011 REQUESTED FOR RECTIFICATION SEEKING REFUND OF ADVANCE TAX OF RS.50.00 LACS PAID ON 13/03/2008. I T WAS SUBMITTED THAT AS PROJECT WAS NOT COMPLETED BUT THE ADVANCE TAX OF RS.50.00 L ACS WAS PAID THE SAME SHOULD BE REFUNDED ALONG WITH INTEREST. THE AO ON GOING THR OUGH THE RECORD FOUND THAT ASSESSEE HAS PAID ADVANCE TAX OF RS.50.00 LACS ON 1 3/03/2008 BUT HE DENIED TO RECTIFY THE MISTAKE ON THE GROUND THAT ASSESSEE HAS NEITHER CLAIMED REFUND NOR CREDIT OF ADVANCE TAX SHOWN IN HIS RETURN OF INCOME. WH ILE PROCESSING THE RETURN UNDER SECTION 143(1) THE CREDIT OF ADVANCE TAX WAS NOT G IVEN AS THE SAME WAS NOT CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME, THEREFORE, THE REFUND WAS NOT DETERMINED. THE AO FURTHER OBSERVED IN HIS ORDER DATED 29/04/20 11 PASSED IN PURSUANCE TO APPLICATION FILED BY THE ASSESSEE UNDER SECTION 154 THAT TO CLAIM REFUND ASSESSEE WAS REQUIRED TO FILE REFUND APPLICATION IN FORM NO.30 W ITHIN THE PERIOD OF ONE YEAR FROM THE LAST DATE OF THE ASSESSMENT ORDER. SINCE ASSES SEE HAS NOT FILED REFUND APPLICATION IN FORM NO.30 WITHIN TIME THE ASSESSEE WILL BE REQ UIRED TO TAKE APPROVAL FROM THE BOARD BEFORE GRANTING REFUND. IN THIS MANNER AO HA S REJECTED THE CLAIM OF THE ASSESSEE. LD. CIT(A) HAS ALSO UPHELD THE REJECTION OF APPLICATION. BEFORE LD. CIT(A) IT WAS SUBMITTED THAT AO MAY BE PREVENTED BY THE P ROCEDURE BUT APPELLATE AUTHORITIES HAVE POWER TO CONSIDER THE CLAIM OF THE ASSESSEE WHICH WAS NOT MADE IN THE RETURN AND REFERENCE WAS MADE TO THE DECISION O F HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHARES PVT. LTD., 349 ITR 336(BOM). HOWEVER, LD. CIT(A) DID NOT ACCEPT SUCH SUBMISSION OF THE ASSESS EE. IT IS IN THIS MANNER LD. CIT(A) UPHELD THE ACTION OF AO. ITA NO.3608/MUM/2013 (A.Y.2008-09 3 3. IT WAS SUBMITTED BY LD. AR THAT LD. CIT(A) HAS C OMMITTED AN ERROR IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE. LD. AR SUBMIT TED THAT GRANTING OF REFUND IS GOVERNED BY THE PROVISIONS OF SECTION 237 OF THE AC T AND THE ONLY CONDITION FOR GRANT OF REFUND IS THAT SATISFACTION OF AO. IT WAS SUBM ITTED THAT SATISFACTION OF THE AO REGARDING THE PAYMENT OF RS.50.00 LACS ON 13/03/200 8 IS DESCRIBED BY THE AO HIMSELF IN HIS ORDER REJECTING THE RECTIFICATION AP PLICATION OF THE ASSESSEE. THUS, IT WAS PLEADED BY LD. AR THAT REFUND HAS WRONGLY BEEN REFUSED TO THE ASSESSEE AND AO MAY BE DIRECTED TO GRANT THE REFUND ALONGWITH INTER EST AS PER PROVISIONS OF LAW. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. SECTION 237 READ AS UNDER: SEC.237. IF ANY PERSON SATISFIES THE[ASSESSING] OF FICER THAT THE AMOUNT OF TAX PAID BY HIM OR ON HIS BEHALF OR TREATED AS PAID BY HIM OR O N HIS BEHALF FOR ANY ASSESSMENT YEAR EXCEEDS THE AMOUNT WITH WHICH HE IS PROPERLY CHARG EABLE UNDER THIS ACT FOR THAT YEAR, HE SHALL BE ENTITLED TO A REFUND OF THE EXCESS. A PERUSAL OF ABOVE SECTION WOULD REVEAL THAT ASSESS EE SHALL BE ENTITLED TO REFUND OF TAXES PAID IN EXCESS IF HE IS ABLE TO SATISFY THE A O THAT THE AMOUNT OF TAX PAID BY HIM OR ON HIS BEHALF OR TREATED AS PAID BY HIM OR ON HI S BEHALF FOR ANY ASSESSMENT YEAR EXCEEDS THE AMOUNT WITH WHICH HE HAS PROPERLY CHARG EABLE UNDER THIS ACT FOR THAT YEAR. ACCORDING TO THE FACTS OF THE PRESENT CASE, AS PER ORDER PASSED BY AO DATED 29/4/2011 REJECTING THE CLAIM OF THE ASSESSEE, IT C AN BE CONCLUDED THAT AO WAS SATISFIED REGARDING THE ADVANCE TAX PAYMENT MADE B Y THE ASSESSEE OF RS.50.00 LACS ON 13/03/2008 AND SUCH SATISFACTION IS RECORDED IN THE FOLLOWING WORDS: ON GOING THROUGH THE RECORDS, IT IS FOUND THAT ASS ESSEE HAS PAID ADVANCE TAX OF RS.50,00,000/- ON 13/03/2008. IT IS ALSO A MATTER OF FACT THAT THE INCOME OF THE ASSESSEE HAS BEEN DETERMINED AT NIL. THEREFORE, ALL THE CONDITIONS PUT IN SECTION 237 AR E FULFILLED BY THE ASSESSEE. IN THIS VIEW OF THE SITUATION, WE ARE OF THE OPINION THAT A O AS WELL AS LD. CIT(A) BOTH HAVE ITA NO.3608/MUM/2013 (A.Y.2008-09 4 COMMITTED AN ERROR IN NOT ACCEPTING THE CLAIM OF TH E ASSESSEE. AS PER SECTION 237 OF THE ACT, THE CLAIM MADE BY THE ASSESSEE WAS ALLOWA BLE AND WE DIRECT THE AO TO GRANT REFUND TO THE ASSESSEE WITH INTEREST AS AVAILABLE TO THE ASSESSEE AS PER PROVISIONS OF LAW. WE DIRECT ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 17/12/2014 ! ' #$ % &'( 17/12/2014 ' ) SD/- SD/- ( /SANJAY ARORA ) ( . . / I.P. BANSAL ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; &' DATED 17/12/2014 ! ! ! ! ' '' ' *+, *+, *+, *+, -,$+ -,$+ -,$+ -,$+ / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT 2. *0./ / THE RESPONDENT. 3. 1 ( ) / THE CIT(A)- 4. 1 / CIT 5. ,2) *+' , , / DR, ITAT, MUMBAI 6. )3 4 / GUARD FILE. !' !' !' !' / BY ORDER, 0,+ *+ //TRUE COPY// 5 55 5 / 6 6 6 6 (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI . ' . ./ VM , SR. PS