Jagdish Tukaram Mulik, Pune V. ACIT, Range-2, Pune

ITA 376/PUN/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 56410 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 10-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 12-03-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Assessee Lawyers: P D KUDWA
• Keywords: Revised return
• Section: 80C; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI I.C.SUDHIR, JUDICIAL MEMBER AND SHRI D.KARUNAKARA RAO, ACCOUNTAN T MEMBER ITA NO. 376/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI JAGDISH T.MULIK S.NO.13, VADGAONSHERI PUNE-411014 PAN AKWPM7109A .. APPELLANT VS. ADDL.COMMISSIONER OF INCOME TAX, RANGE 2, PUNE .. RESPONDENT ITA NO. 377/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI YOGESH T.MULIK S.NO.13, VADGAONSHERI PUNE-411014 PAN AKWPM7104P .. APPELLANT VS. ADDL.COMMISSIONER OF INCOME TAX, RANGE 2, PUNE .. RESPONDENT ITA NO. 375/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI VISHAL T.MULIK S.NO.13, VADGAONSHERI PUNE-411014 PAN AKWPM7110M .. APPELLANT VS. ADDL.COMMISSIONER OF INCOME TAX, RANGE 2, PUNE .. RESPONDENT APPELLANT BY: SHRI P.D.KUDWA, AR RESPONDENT BY: ANN KAPTHUAMA DR ORDER PER D.KARUNAKARA RAO, A.M .: ALL THESE THREE ARE APPEALS BY DIFFERENT ASSESSEES DIRECTED AGAINST THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS) II, PUNE COMMONLY DT.21-01-2010 FOR THE A SSESSMENT YEAR 2006-07. ITA NO. 376/PN/2010, ITA NO. 377/PN/2010 & ITA NO. 375/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI JAGDISH T.MULIK,SHRI YOGESH T.MULIK, SHRI VISH AL T.MULIK 2. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT ALL THESE THREE APPEALS SHARE THE CO MMON FACTS AND THEIR GROUNDS OF APPEAL. THEREFORE, ALL THESE APPE ALS HAVE TO BE HEARD AND ADJUDICATED BY A COMMON ORDER. 3. REFERRING TO THE GROUNDS, THE COUNSEL MENTIONED THAT THERE ARE A COUPLE OF ISSUES RAISED BY THE ASSESSEE IN TH ESE APPEALS AND THEY ARE 1) ALLOWABILITY OF THE CLAIM OF SELLING EXPENSES I.E. BROKERAGE AND 2) CLAIM OF DEDUCTION U/S 80C IN RESPECT OF CONTRIBUTION TO PPF . IN REGARD TO ALL THESE ISSUES, THE LEARNED COUNSEL MENTIONED THAT THE ASSESSEE INADVERTENTLY D ID NOT CLAIM THE ABOVE DEDUCTIONS WHEN THE RETURN WAS ORIGINALLY FIL ED. HOWEVER, DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE FIL ED A REVISED COMPUTATION AND MADE A CLAIM TO THAT EXTENT IN ALL THESE CASES. BOTH THE REVENUE AUTHORITIES I.E. THE ASSESSING OFF ICER AND CIT(A) FAILED TO ADMIT THE SAID CLAIMS AND ADJUDICATE THE GROUNDS STATING THAT CLAIM OF THIS KIND MUST BE MADE ONLY BY WAY OF FILING OF THE REVISED RETURN OF INCOME AND NOT BY WAY OF FILING O F REVISED COMPUTATION OF INCOME. IN THE PROCESS, AS PER THE COUNSEL, JUDGMENT OF THE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. 284 ITR 323 WAS NOT FOLLOWED BY THE AO/CIT(A). BOTH TH E AUTHORITIES DISMISSED THE CLAIM OF THE ASSESSEE WITHOUT ADMITTI NG THE GROUNDS AND WITHOUT GOING INTO THE MERITS OF THE ISSUES. I N THIS REGARD, THE COUNSEL MENTIONED THAT THE CIT(A) SHOULD HAVE ADMIT TED AND ADJUDICATED THE ISSUE AS HE CONSTITUTES AN APPELLAT E AUTHORITY WITHIN THE MEANING OF THE JUDGMENT OF THE SUPREME COURT CI TED ABOVE. 4. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPR ESENTATIVE RELIED ON THE ORDER OF THE CIT(A). 5. WE HAVE HEARD THE PARTIES AND PERUSED THE SAID J UDGMENT OF THE SUPREME COURT. ADMITTEDLY, IT IS THE CASE THAT THE CLAIM WAS NOT ADMITTED BY THE CIT(A) MERELY FOR THE REASON THAT T HE SAID CLAIMS WERE NOT MADE IN ORIGINAL RETURN OF INCOME OR BY FI LING REVISED RETURN OF INCOME. DURING THE PROCEEDINGS BEFORE US, LEARNE D COUNSEL RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA LTD. 284 ITR 323, FOR THE PROPOSITION THAT TH E APPELLATE AUTHORITIES LIKE CIT(A), ITAT AND OTHERS CAN ADMIT AND ADJUDICATE ITA NO. 376/PN/2010, ITA NO. 377/PN/2010 & ITA NO. 375/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI JAGDISH T.MULIK,SHRI YOGESH T.MULIK, SHRI VISH AL T.MULIK ANY ISSUE WHICH ARE OTHERWISE FIT AND THE DIRECTION OF THE SUPREME COURT IN THE SAID JUDGMENT THAT ANY CLAIM IS MADE B Y THE ASSESSEE ONLY THROUGH ORIGINAL RETURN OF INCOME OR REVISED R ETURN OF INCOME U/S 139(1) & 139(5) IS APPLICABLE TO ASSESSING AUTH ORITIES ONLY. 6. WE HEARD THE PARTIES AND PERUSED THE ORDERS OF T HE REVENUE AND THE PAPER BOOK FILED BEFORE US. ON FINDING THA T THE SAID CLAIM IS NOT MADE IN THE ORIGINAL RETURN OR IN THE REVISED R ETURN, THE AO DENIED THE CLAIM. IN THE PROCESS, HE DID NOT FOLLOW THE RATIO OF THE SUPREME COURTS JUDGMENT IN THE CASE OF GOETZ INDIA (SUPRA). OTHERWISE, THERE IS NO DISPUTE ON THE REVENUE NATUR E OF THE WHOLE OF THE CLAIM. FURTHER, WE HAVE ALSO PERUSED THE RELEVA NT DECISION OF THE SUPREME COURT AND FIND PARA 17 ON PAGE 4 IS RELEVA NT WHICH READS AS UNDER. 17. IN GOETZE (INDIA) LTD. VS. CIT (2006) 204 CTR (SC) 182 : (2006) 284 ITR 323 (SC), WHEREIN DEDUCTION CLAIMED BY WAY OF A LET TER BEFORE AO, WAS DISALLOWED ON THE GROUND THAT THERE WAS NO PROVISIO N UNDER THE ACT TO MAKE AMENDMENT IN THE RETURN WITHOUT FILING A REVISED RE TURN. APPEAL TO THE SUPREME COURT, AS THE DECISION WAS UPHELD BY THE TR IBUNAL AND THE HIGH COURT, WAS DISMISSED MAKING CLEAR THAT THE DECISION WAS LIMITED TO THE POWER OF ASSESSING AUTHORITY TO ENTERTAIN CLAIM FOR DEDUC TION OTHERWISE THAN BY REVISED RETURN , AND DID NOT IMPINGE ON THE POWER OF TRIBUNAL 7. IN VIEW OF THE ABOVE JUDGMENT OF THE APEX COURT, IT IS EVIDENT THAT THE FILING OF THE RETURNS IS DONE BEFORE THE A SSESSING AUTHORITIES ONLY AND NOT BEFORE THE APPELLATE AUTHORITY I.E.S C IT(A), ITAT OR HIGHER JUDICIARY. IN OUR OPINION, THE CIT(A) TRAVEL ED INTO AN ERROR ZONE IN NOT UNDERSTANDING THE RATIO PROPERLY AND TH EREFORE, CIT(A) IS NOT BARRED BY THE ABOVE JUDGMENT FROM ENTERTAINING AND ADJUDICATING THE CLAIM MADE OTHERWISE THAN BY FILIN G THE RETURN OR REVISED RETURN. THEREFORE, WE ALLOW THE GROUND OF T HE ASSESSEE. ON THE MERITS OF THE ADDITION, WE FIND THAT THE ISSUE S WERE NOT ADJUDICATED AT ALL. THEREFORE, WE ARE OF THE OPINI ON THAT THE MATTER SHOULD BE REMANDED TO THE FILES OF THE CIT(A) WITH THE DIRECTION TO ADMIT THE ADDITIONAL CLAIMS MADE BY THE ASSESSEE BE FORE HIM BY WAY OF REVISED COMPUTATION OF INCOME AND ADJUDICATE THE SAME BY PASSING A SPEAKING ORDER ON THE MERITS OF EACH OF T HE GROUND IN THE SPIRIT OF THE PROVISIONS OF SECTION 250(6) OF THE A CT. ACCORDINGLY, THE GROUND TWO IS PARTLY ALLOWED. . ITA NO. 376/PN/2010, ITA NO. 377/PN/2010 & ITA NO. 375/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI JAGDISH T.MULIK,SHRI YOGESH T.MULIK, SHRI VISH AL T.MULIK 8. IN THE RESULT, ALL THE GROUNDS RAISED IN ALL THE SE THREE APPEALS ARE PARTLY ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 26 -8-2011. SD/- SD/- (I.C.SUDHIR) (D.KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 26-8-2011 COPY TO:- 1) ASSESSEE 2) THE ADDL.CIT, RANGE 2, PUNE 3) THE CIT (A) II, PUNE 4) THE CIT CONCERNED 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T.A.T., PUNE. ITA NO. 376/PN/2010, ITA NO. 377/PN/2010 & ITA NO. 375/PN/2010 (ASSESSMENT YEAR: 2006-07) SHRI JAGDISH T.MULIK,SHRI YOGESH T.MULIK, SHRI VISH AL T.MULIK BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., PUNE