Smt. Reta Bapna, Gwalior V. A.C.I.T. Circle-1, Gwalior

ITA 378/AGR/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 76547 (ITAT-AGRA)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 01-04-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 27-12-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: ANURADHA
• Section: 54; 143(3); 54F

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA [CORAM : BHAVNESH SAINI JM AND PRAMOD KUMAR AM ] ITA NO.378/AGRA/2013 ASSESSMENT YEAR: 2009-10 RITA BAPNA ..APPELLANT SARAFA BAZAR, GWALIOR. [PAN ACOPB 2088 F] VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 1, GWALIOR ..RESPONDENT APPEARANCES: V BAPNA, FOR THE APPELLANT ANURADHA, FOR THE RESPONDENT DATE OF HEARING : APRIL 01, 2014 DATE OF PRONOUNCEMENT : APRIL 29, 2014 O R D E R PER PRAMOD KUMAR, AM : 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HA S CHALLENGED CORRECTNESS OF THE ORDER DATED 09.10.2013 PASSED BY THE LEARNED CIT(A), IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF TH E INCOME TAX ACT, 1961, FOR THE ASSESSMENT YEAR 2009-10. 2. IN THE FIRST AND SECOND GROUNDS OF APPEAL,WHICH ARE INTERCONNECTED AND WHICH WE WILL TAKE UP TOGETHER, THE ASSESSEE HA S RAISED THE FOLLOWING GRIEVANCES: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN DISALLOWING CLAIM U/S 54F RS.1,47,204/- IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. ITA NO.: 378/AGRA/2013 ASSESSMENT YEAR: 2009-10 2 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN DISALLOWING CLAIM U/S 54F REGARDING EVIDEN CE OF WORK WHICH IN FACT WERE BEFORE LEARNED ACIT IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. 3. SO FAR AS THIS GRIEVANCE IS CONCERNED, ONLY A FE W MATERIAL FACTS NEED TO BE TAKEN OF. SUFFICE TO NOTE THAT THE REJECTION OF ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 54 F HAS BEEN SUSTAINED BY THE CIT(A) ON THE SHORT GROUND THAT THE RELEVANT DETAILS OF EXPENDITURE WER E NOT FURNISHED BY THE ASSESSEE, EVEN THOUGH, ACCORDING TO THE ASSESSEE, A LL THE REQUISITE DETAILS WERE FILED BY THE ASSESSEE AT THE ASSESSMENT AND AP PELLATE STAGE. THE RELEVANT OBSERVATIONS OF THE CIT(A) ARE AS FOLLOWS: I HAVE GONE THROUGH THE ASSESSMENT ORDER CAREFULLY. THE APPELLANT HAS NOT BEEN ABLE TO PRODUCE ANY EVIDENCE TO PROVE THAT SUM OF RS.1,80,000 WAS SPENT IN THE MONTH OF DECEMBER, 2007 TO MAKE TH E FLAT INHABITABLE. IN THE ABSENCE OF ANY PROOF, THE CLAIM OF THE APPEL LANT CANNOT BE ACCEPTED. HENCE THIS GROUND OF APPEAL IS DISMISSED AND ORDER OF THE A.O. IS CONFIRMED ON THIS ISSUE. 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT THE MATT ER SHOULD BE RESTORED TO THE FILE OF THE CIT(A) FOR THE LIMITED PURPOSES OF VERIFICATION OF THE DETAILS OF EXPENDITURE. THE ASSESSEE IS DIRECTED TO FURNISH AL L THE REQUISITE DETAILS BEFORE THE CIT(A) ONCE AGAIN, AND THE CIT(A) WILL A DJUDICATE ON THIS ASPECT OF THE MATTER AFRESH. WHILE DOING SO, THE CIT(A) WI LL GIVE YET ANOTHER OPPORTUNITY OF HEARING TO THE ASSESSEE, DECIDE THE MATTER BY WAY OF A SPEAKING ORDER AND IN ACCORDANCE WITH THE LAW. WE D IRECT SO. 5. GROUND NO. 1 IS THUS ALLOWED FOR STATISTICAL PUR POSES IN THE TERMS INDICATED ABOVE. ITA NO.: 378/AGRA/2013 ASSESSMENT YEAR: 2009-10 3 6. IN GROUND NO. 3, THE ASSESSEE HAS RAISED THE FOL LOWING GRIEVANCE: 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE L EARNED CIT(A) ERRED IN CONFIRMING CHARGING TAX @ 20% AS AGAINST 1 5% ON INCOME FROM CAPITAL GAIN FROM SALE OF SHARES RS.31,750/- I S ILLEGAL, UNJUSTIFIED AND BAD IN LAW. 7. EVEN WITH RESPECT TO THIS GRIEVANCE OF THE ASSES SEE, ONLY A MINIMAL REFERENCE TO THE ADMITTED FACTS OF THE CASE IS REQU IRED. THE ONLY REASON FOR WHICH THE LEVY OF TAX @ 20% IS CONFIRMED IS ASSESSE ES OWN ACTION OF DOING SO. LEARNED CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER ON THIS POINT AND OBSERVED AS FOLLOWS: I HAVE PERUSED THE STATEMENT OF THE COMPUTATION OF INCOME FILED BY THE APPELLANT ALONG WITH THE WRITTEN SUBMISSION. THE A PPELLANT HAS HERSELF COMPUTED TAX AT NORMAL RATE ON INCOME OF RS.31,750. AS THE APPELLANT HERSELF HAS COMPUTED THE TAX AT THE NORMAL RATE HEN CE I FIND NO INFIRMITY IN THE ORDER OF THE A.O. ACCORDINGLY, THIS GROUND OF APPEAL IS ALSO DISMISSED. 8. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PE RUSED THE MATERIAL ON RECORD, WE FIND THIS ISSUE IS COVERED, IN FAVOUR OF THE ASSESSEE, BY A COORDINATE BENCH DECISION IN THE CASE OF ASIA PACIF IC FUNDS INC VS DCIT (96 TTJ 548) WHEREIN IT HAS BEEN HELD THAT EVEN IF ASSE SSEE OFFERS AN INCOME FOR TAXA AT A RATE WHICH IS MORE THAN THE CORRECT APPLI CABLE RATE OF TAX, THE REVENUE AUTHORITIES TO APPLY THE CORRECT RATE. WHIL E HOLDING SO, THE BENCH HAS, INTER ALIA, OBSERVED AS FOLLOWS: ..A TAX CANNOT BE LEVIED ON AN ASSESSEE AT A HI GHER RATE MERELY BECAUSE THE ASSESSEE, UNDER A MISTAKEN BELIE F, OFFERED THE INCOME FOR TAXATION AT THAT RATE. IT CAN ONLY BE LE VIED WHEN IT IS AUTHORISED BY THE LAW, AS IS THE MANDATE OF ART. 26 5 OF THE ITA NO.: 378/AGRA/2013 ASSESSMENT YEAR: 2009-10 4 CONSTITUTION OF INDIA. A SENSE OF FAIRPLAY BY THE F IELD OFFICERS TOWARDS THE TAXPAYERS IS NOT AN ACT OF BENEVOLENCE BY THE FIELD OFFICERS, BUT IT IS THE MINIMUM CIVILIZED BEHAVIOUR THAT IS REQUIRED TO BE EXTENDED TO THE TAXPAYERS. IF AUTHORITY IS NE EDED EVEN FOR JUSTIFYING THIS BASIC CIVILIZED BEHAVIOUR TOWARDS T HE TAXPAYERS, ONE NEED NOT LOOK BEYOND THE CIRCULARS ISSUED BY THE CB DT ITSELF. IN CIRCULAR NO. 14, WHICH HAS BEEN TAKEN NOTE OF BY TH E HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DATTATRAYA GOPAL BHOTTE VS. CIT (1984) 41 CTR (BOM) 393 : (1984) 150 ITR 460 (B OM), THE BOARD HAS THESE WORDS OF ADVICE FOR THE FIELD OFFICERS : '..................OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ON E OF THEIR DUTIES TO ASSIST TAXPAYER IN EVERY REASONABLE WAY, PARTICULAR LY IN THE MATTER OF CLAIMING AND SECURING ANY RELIEF AND IN THIS REG ARD THE OFFICERS SHOULD TAKE INITIATIVE IN GUIDING THE TAXPAYER WHER E PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME RE FUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD IN THE LONG RUN BEN EFIT THE DEPARTMENT FOR IT WOULD INSPIRE CONFIDENCE IN HIM T HAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE GOVERNMENT.. ......' IT IS HEARTENING TO NOTE THAT THE CBDT HAS GIVEN SU CH HUMANE GUIDANCE TO THE FIELD OFFICERS. THE BEST THING THAT THE FIELD OFFICERS CAN DO TO ENHANCE THE RESPECT FOR AND TRUST IN THE DEPARTMENT, IS TO FOLLOW THESE VALUABLE WORDS OF ADVICE IN LETTER AND IN SPIRIT, BUT THEN, SOMETIME OVERZEALOUS, EVEN IF WELL MEANING, E FFORTS TO COLLECT THE REVENUE END UP SACRIFICING THESE HUMANE NICETIE S ON THE WAY, AND THUS DERAIL THE EFFORTS OF THE CBDT TO EARN TAX PAYERS CONFIDENCE AND TRUST. 9. AS THERE IS NO DISPUTE ABOUT THE CORRECT RATE O F TAX, AS CLAIMED BY THE ASSESSEE, AND THE ISSUE WAS DECIDED AGAINST THE ASS ESSEE ONLY ON THE GROUND THAT THE ASSESSEE HERSELF HAD OFFERED THE INCOME TO TAX AT A HIGHER RATE, WE UPHOLD THE GRIEVANCE OF THE ASSESSEE. THE ASSESSING OFFICER IS DIRECTED TO GIVE RELIEF ACCORDINGLY. GROUND NO. 3 IS THUS ALLOW ED. ITA NO.: 378/AGRA/2013 ASSESSMENT YEAR: 2009-10 5 10. GROUND NO. 4 IS ONLY CONSEQUENTIAL IN NATURE AN D THE ASSESSEE WILL GET THE CONSEQUENTIAL RELIEF ON THE BASIS OF RELIEF ULT IMATELY GRANTED TO THE ASSESSEE. NO FURTHER ADJUDICATION IS REQUIRED ON TH IS GROUND, AND IT IS TO BE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT TODAY ON 29 TH DAY OF APRIL, 2014. SD/- SD/- (BHAVNESH SAINI) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 29 TH APRIL, 2014 PBN/* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, AGRA TRUE COPY