BHAGWANJI GADA, MUMBAI V. ITO CEN THANE, MUMBAI

ITA 377/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3728 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 13-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Assessee Lawyers: BHUMIKA VORA

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI .. , ! ' ##, $ ' , % BEFORE SHRI R.S.SYAL, AM AND SHRI SANJAY GARG, JM ITA NO.377/MUM/2011 : ASST.YEAR 2008-2009 SHRI BHAGWANJI GADA PROP. BHAGWAN TEXTILES 10/A-1, FLAT NO.501/502 GOPAL NAGAR KALYAN BIWANDI ROAD BHIWANDI. PAN : AAWPG6112B. THE INCOME TAX OFFICER CENTRAL THANE. ( &' / // / APPELLANT) ) ) ) ) / VS. ( *+&'/ RESPONDENT) &' , ,, , - - - - / APPELLANT BY : SMT.BHUMIKA VORA *+&' , - , - , - , - / RESPONDENT BY : SHRI S.D.SRIVASTAVA (CIT-DR) ) , .! / / / / DATE OF HEARING : 02.05.2013 /01 , .! / DATE OF PRONOUNCEMENT : 08.05.2013 '2 '2 '2 '2 / / / / O R D E R PER R.S.SYAL ( AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 30.0 9.2010 IN RELATION TO THE ASSESSMENT YEAR 2008-2009. 2. THE SOLITARY GROUND RAISED IS AGAINST THE DISMI SSAL OF APPEAL BY THE LEARNED CIT(A) INVOKING THE PROVISIONS OF SECTI ON 249(4)(A) DESPITE THE FACT THAT TAX ON ADMITTED INCOME WAS PA ID BEFORE THE DATE OF FILING OF RETURN OF INCOME. 3. THE LEARNED CIT(A) HAS DEALT WITH THIS ISSUE IN PARA 5 OF HIS ORDER AS UNDER:- ITA NO.377/MUM/2011. SHRI BHAGWANJI GADA. 2 THE ORAL ARGUMENT IS HEARD AND CONSIDERED. I FIND THAT, THE APPELLANT HAS NOT PAID THE TAXES ON ADMITTED IN COME. A TOTAL DEMAND OF ` 11,37,042/- HAS BEEN RAISED BY THE AO ON COMPLETION OF ASSESSMENT. THIS INCLUDES THE T AX LIABILITY ON THE ADDITION MADE OF ` 1,49,986/-. SECTION 249(4)(A) OF THE IT ACT REQUIRES THAT THE TAX ON AD MITTED INCOME IS PAID BEFORE FILING OF APPEAL. WHEREAS, IN THE CASE, THE TAX ON ADMITTED INCOME HAS NOT BEEN PAID AND, THEREFORE, THIS APPEAL IS NOT TO BE ENTERTAINED. TH E APPELLANT HAS NEITHER PAID THE TAX NOR HAS HE FURNI SHED ANY DETAILS REGARDING PAYMENT SUBSEQUENTLY. I, THER EFORE, HOLD THAT, THIS APPEAL IS LIABLE TO BE REJECTED ON THE GROUND OF TAX ON ADMITTED INCOME NOT HAVING BEEN PA ID. 4. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT TH E RETURN IN THIS CASE WAS FILED DECLARING TOTAL INCOME OF ` 44.45 LAKH. THE A.O. MADE ADDITION OF ` 1.49 LAKH DETERMINING TOTAL INCOME AT ` 45.95 LAKH. FROM THE ACKNOWLEDGEMENT OF RETURN, IT IS SEEN THAT THE NET TAX PAYABLE ON THE RETURNED INCOME OF ` 44.45 LAKH COMES OUT TO ` 6.04 LAKH. WHEN ADDED WITH THE INTEREST PAYABLE, THE TOTAL AMOUNT O F TAX AND INTEREST PAYABLE CAME TO ` 6.28 LAKH. THE ASSESSEE PAID ADVANCE TAX OF ` 4.30 LAKH, AND TAX WAS DEDUCTED AT SOURCE ON BEHALF OF THE ASSESSEE FOR A SUM OF ` 41,530. FURTHER SELF-ASSESSMENT TAX OF ` 1,56,700 WAS PAID BY THE ASSESSEE BEFORE FILING THE RETURN OF INCOME MAK ING TOTAL OF TAX PAID AT ` 6.28 LAKH EQUAL TO THE AMOUNT OF INTEREST AND TAX P AYABLE. THIS POSITION IS ALSO APPARENT FROM THE COMPUTATION OF INCOME FILED BY THE ASSESSEE INDICATING THAT THE AMOUNT OF TAX P AYABLE AFTER ADJUSTMENT OF ADVANCE TAX AND TDS AMOUNTING TO ` 1.56 LAKH WAS PAID BY WAY OF SELF-ASSESSMENT TAX U/S 140A. THESE FACTS INDICATE THAT THE TAX ON THE ADMITTED INCOME WAS DULY PAID BY THE ASSESSEE BEFORE ITA NO.377/MUM/2011. SHRI BHAGWANJI GADA. 3 FILING THE RETURN OF INCOME. THE LEARNED CIT(A) WH O HAS REJECTED THE APPEAL ON THE GROUND THAT TAX ON ADMITTED INCOME WA S NOT PAID, BY MISTAKE ALSO CONSIDERED TAX LIABILITY ON THE ADDITI ON MADE OF ` 1.49 LAKH. THIS IS THE ONLY ADDITION MADE BY THE A.O. WH ICH WAS AGITATED IN APPEAL BEFORE HIM. THE TAX DUE ON THIS AMOUNT CA NNOT BE CONSIDERED AS PART OF TAX ON THE ADMITTED INCOME. WE , THEREFORE, SET ASIDE THE IMPUGNED ORDER AND REMIT THE MATTER TO TH E FILE OF LEARNED CIT(A) FOR DISPOSING OFF THE APPEAL ON MERITS. 5. 3 .4 5 6, 789 : . ; , . <= IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON THIS 08 TH DAY OF MAY, 2013. '2 , /01 >')4 0 , # SD/- SD/- (SANJAY GARG) (R.S.SYAL) $ ' $ ' $ ' $ ' / JUDICIAL MEMBER ! ' ! ' ! ' ! ' / ACCOUNTANT MEMBER MUMBAI ; >') DATED : 08 TH MAY, 2013. DEVDAS* '2 , *$.:? @?1. '2 , *$.:? @?1. '2 , *$.:? @?1. '2 , *$.:? @?1./ COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. *+&' / THE RESPONDENT. 3. A () / THE CIT, MUMBAI. 4. A / CIT(A)-1 , THANE 5. ?D# *$.$) , , / DR, ITAT, MUMBAI 6. #E F / GUARD FILE. '2) '2) '2) '2) / BY ORDER, +?. *$. //TRUE COPY// 7 7 7 7/ // /< < < < ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI