Smt. Parulben Hiteshbhai Dattani, PORBANDAR V. The Income Tax Officer, Ward-2(4), PORBANDAR

ITA 387/RJT/2012

• Counselvise Citation: [2012] 120 COUNSELVISE.COM (IT) 0167 (ITAT-RAJKOT)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 17-09-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DIVYESH P SODA
• Section: 154; 2; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVAST AVA, AM ITA NO.387/RJT/2012. / ASSESSMENT YEAR 2008-09 DATTANI PARUL HITESH, 702, VIVEKANAND FLATS, STREET NO.1, VADI PLOT, PORBANDAR-360575 PAN:AGFPD8468G ( * / APPELLANT) VS. THE INCOME-TAX OFFICER, WARD 2(4), M G ROAD PORBANDAR +,* / RESPONDENT -. / ASSESSEE BY SHRI. DIVYESH P.SODA . / REVENUE BY SHRI AVINASH KUMAR . / DATE OF HEARING 17.9.2012 . / DATE OF PRONOUNCEMENT 21.09.2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER DATED 24.4.2012 OF CIT(A), JA MNAGAR FOR THE ASSESSMENT YEAR 2008-09. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS AN I NDIVIDUAL. FOR THE ASSESSMENT YEAR UNDER APPEAL, SHE FILED RETURN OF I NCOME ON 30.7.2008 DECLARING TOTAL INCOME OF RS.2,62,000/-. THIS RETU RN WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT 1961 ON 24.10.2008. SUBSEQUE NTLY, THE AO VIDE NOTICE U/S 154 DATED 24.10.2008 SOUGHT TO REVISE THE AFORE SAID INTIMATION U/S 143(1) BY PASSING AN ORDER U/S 154 OF THE ACT IN WHICH HE PR OPOSED TO ADD BACK SECURITY 2 ITA NO.387/RJT/2012. TRANSACTION TAX AMOUNTING TO RS.37,729/-. THIS E XPENDITURE IS INADMISSIBLE U/S 40(A) OF THE ACT. THERE WAS NO COMPLIANCE TO THE SHOW CAUSE NOTICE ISSUED U/S 154 OF THE ACT. THE AO PASSED THE ORDER U/S 15 4 ON 5.3.2010 WHEREIN HE DISALLOWED RS.37,729/- AS PROPOSED IN HIS SHOW CAU SE NOTICE U/S 154 DATED 27.10.2009. AGAINST THE ORDER PASSED U/S 154, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A). DURING THE COURSE OF HEARING, THE ASSESSEE CONTENDED THAT SHE IS ENTITLED TO REBATE U/S 88E O N SECURITY TRANSACTION TAX, THEREFORE, THE AO BE DIRECTED TO ALLOW THE SAME. TH E LD. CIT(A) DISMISSED THE APPEAL. THE ASSESSEE FILED AN APPLICATION DATED 9 .5.2012 U/S 154 WHICH WAS ALSO DISMISSED BY IMPUGNED ORDER DATED 24.4.2012 FO R THE DETAILED REASONS GIVEN IN PARAGRAPH 2 WHICH READS AS UNDER: 2. I FIND THAT, AS THE APPELLANT HAD NOT FILED EVI DENCE FOR THE PAYMENT OF STT IN THE PRESCRIBED FORM NO. 10DB/10DC WITH T HE RETURN OF INCOME, DEDUCTION U/S 88E WAS NOT ALLOWED BY THE AO AND/OR TILL THE DATE OF PASSING ORDER U/S 154 NOTHING WAS FILED BY THE ASSE SSEE. THEREFORE, THE AO PASSED ORDER U/S 154 ADDING THE EXPENDITURE CLA IMED OF RS.37,729/-. IN APPEAL THE CIT(A) HELD THAT SAID EXPENDITURE IS NOT ALLOWABLE U/S 40(1) OF THE ACT AND THE AO HAS RIGHTLY PASSED ORDER U/S 154 AND DISALLOWED STT OF RS.37,729 U/S 40(A) BECAUSE THE AUDITOR HAS ALSO PLACED REMARK IN AUDIT REPORT FILED BY THE APPELLANT U/S 44AB THA T EXPENDITURE OF RS.37,729/- IS DISALLOWABLE U/S 40(A), HOWEVER, NO SUCH DISALLOWANCE WAS MADE IN COMPUTATION OF INCOME. IN VIEW OF THESE FA CTS, APPELLANTS APPLICATION OF RECTIFICATION IS FOUND DEVOID OF MER IT HENCE SAME STANDS REJECTED. AGGRIEVED WITH THE ORDER OF THE LD. CIT(A) PASSED U/S 154 DATED 24.4.2012, THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. 3. AT THE TIME OF HEARING BEFORE US SHRI. DIVYESH P.SODA, THE LD. COUNSEL FOR THE ASSESSEE APPEARED AND CONTENDED THAT SHOW CAUSE NOTICE U/S 154 WAS NEVER RECEIVED BY THE ASSESSEE WHICH RESULTED IN P ASSING EX-PARTE ORDER QUA THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE IS A LADY AND BEING A LAYMAN, SHE DO NOT KNOW THE COMPLEXITY OF TAX LAWS. HE FUR THER EXPLAINED THAT PRIMA 3 ITA NO.387/RJT/2012. FACIE IT WAS THROUGH AN ADVERTENCE IN THE RETURN OF INCOME THE STT WAS NOT DISALLOWED U/S 40(A) OF THE ACT AND REBATE U/S 88E HAS NOT CLAIMED. HE SUBMITTED THAT THE REBATE U/S 88E OF THE ACT WORKE D TO RS.29,138/- AS UNDER: (A) TAXABLE INCOME FROM SECURITIES TRANS. 246577 (B) INCOME TAX ON (A) AT AVERAGE RATE 29138 ( C) SECURITIES TRANSACTION TAX PAID ON (A) 37729 TAX REBATE U/S 88E (LOWER OF B AND C) 29138 3.1 THE COUNSEL OF THE ASSESSEE FURTHER SUBMITTED T HAT WITH THE RETURN OF INCOME THE ASSESSEE HAS NOT SUBMITTED FORM NO. 10DB /10DC AS ACCORDING TO SECTION 139C OF THE ACT AS NO DOCUMENTS WERE REQU IRED TO BE ATTACHED WITH THE RETURN OF INCOME INCLUDING TDS CERTIFICATE ETC. I N THIS VIEW OF THE MATTER, THE AO BE DIRECTED TO ALLOW REBATE U/S 88E OF THE ACT. 4. ON THE OTHER HAND, SHRI AVINASHKUMAR, THE LD. DR APPEARED ON BEHALF OF THE REVENUE AND VEHEMENTLY SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. THE LD.DR POINTED OUT THAT SINCE THE ASSESSEE HAS NOT A CCEPTED THE NOTICE U/S 154, THE VIEW TAKEN BY BOTH THE DEPARTMENTAL AUTHORITIES BE UPHELD. 5. HAVING HEARD BOTH THE PARTIES, WE HAVE CAREFULL Y GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT IS PERTINENT TO NO TE THAT PRIMA FACIE IT APPEARS THAT ONLY ONE SHOW CAUSE NOTICE U/S 154 WAS ISSUED TO TH E ASSESSEE. ACCORDING TO HER THIS WAS NOT RECEIVED BY HER. BE THAT IT MAY, THE AO IN THE ORDER PASSED U/S 154 HAS DISALLOWED RS. 37,729/-. THE NECESSARY EVI DENCE FOR CLAIMING REBATE U/S 88E WERE FURNISHED BY THE ASSESSEE AT THE EARLI EST OPPORTUNITY AVAILABLE. LOOKING TO THE SMALLNESS OF AMOUNT, WE SET ASIDE TH E IMPUGNED ORDER OF THE LD. CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSEE TO FUR NISH FORM NO. 10DB/10DC IN SUPPORT REBATE U/S 88E TO THE AO, WHO WILL VERIFY THE CALCULATION OF RS.29,138/- AND ALLOW THE REBATE U/S 88E AS ADMISSIBLE TO THE A SSESSEE IN ACCORDANCE WITH LAW. 6. IN THE RESULT, FOR STATISTICAL PURPOSE, THE APPE AL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. 4 ITA NO.387/RJT/2012. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE D ATE MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 21-09-2012. /RAJKOT SRL . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-, 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A). 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL , RAJKOT.