M/s Aliganj Cement Agency, Etah V. I.T.O., Ward-3(1), Etah

ITA 421/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0240 (ITAT-AGRA)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 28-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA (SMC) BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 421/AGRA/2012 ASSTT. YEAR : 2006-07 M/S. ALIGANJ CEMENT AGENCY, VS. INCOME-TAX OFFI CER, MAIN MARKET, ALIGANJ, WARD 3(1), ETAH. ETAH. (PAN: AAIFA 1886 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANURAG SINHA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 30.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 01.02.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A), GHAZIABAD DATED 05.06.2012 FOR THE ASSESSMENT YEAR 2006-07 ON THE FOLLOWING GROUNDS : 1. BECAUSE UPON DUE CONSIDERATION OF FACTS AND IN THE OVERALL CIRCUMSTANCES OF THE CASE AUTHORITIES BELOW WERE HI GHLY UNJUSTIFIED IN RESORTING TO PROCEEDINGS UNDER SECTION 154 OF THE A CT IGNORING THE FACT THAT THERE WAS NO ERROR EITHER IN INCOME SHOWN AND AS COMPUTED UNDER SECTION 143(1) OR IN THE DUE TAX WARRANTING N OTICE UNDER SECTION 154 OF THE ACT. 2. BECAUSE UPON DUE CONSIDERATION OF FACTS AND IN THE OVERALL CIRCUMSTANCES OF THE CASE THERE WAS NO ERROR IN CLA IMED CREDIT OF RS.71,749/- EVIDENCED BY CHALLANS AVAILABLE ON RECO RDS OF THE AO ON THE BASIS OF WHICH REFUND GOT ISSUED TO THE APPELLA NT. ITA NO. 421/AGRA/2012 2 3. BECAUSE, IN ANY VIEW OF THE MATTER ORDER PASSED BY THE AUTHORITIES BELOW DESERVES TO BE QUASHED. 2. THE APPEAL WAS DIRECTED BEFORE THE LD. CIT(A) AG AINST THE ORDER PASSED U/S. 154 OF THE IT ACT BY INCOME-TAX OFFICER WARD 3(1), ETAH DATED 20.06.2008. THE AO IN THIS IMPUGNED ORDER NOTED THAT RETURN OF INCO ME IS FILED DECLARING INCOME OF RS.56,240/- IN THE ASSESSMENT YEAR UNDER APPEAL, I. E., 2006-07 AND INTIMATION U/S. 143(1) WAS ISSUED ON 06.03.2007. THE SCRUTINY OF TH E RECORD REVEALED THAT CREDIT OF PRE-PAID TAXES AMOUNTING TO RS.64,749/- WAS WRONGLY ALLOWED. ACCORDINGLY, NOTICE U/S. 154 WAS ISSUED AND OPPORTUNITY WAS GIVEN TO TH E ASSESSEE BUT NEITHER ANYBODY ATTENDED NOR FILED ANY REPLY BEFORE THE AO. THE AO, THEREFORE, PASSED THE ORDER U/S. 154 OF THE IT ACT AND NOTED THAT INCOME IS ORI GINALLY ASSESSED RS.56,240/-, UPON WHICH TDS PAID IS RS.4193/-, ADVANCE TAX PAID RS.7,000/-, BALANCE TAX ON INCOME RS.18,897/- AND BALANCE TAX COMES TO RS.7704 /-. THE REFUND ALLOWED TO THE ASSESSEE WAS RS.60,470/-. THEREFORE, THE ASSESSEE I S LIABLE TO PAY TAX AT RS.68,174/- ACCORDINGLY, DEMAND WAS CREATED AGAINST THE ASSESSE E. THE ASSESSEE CHALLENGED THE ORDER U/S. 154 BEFORE THE LD. CIT(A) AND IT WAS MERELY PLEADED THAT SINCE REFUND IS ALREADY GRANTED, THEREFORE, SECTION 154 WOULD NO T LIE. THE LD. CIT(A), HOWEVER, REJECTED THE CONTENTION OF THE ASSESSEE BECAUSE THE ERROR CAN BE CORRECTED ON ACCOUNT OF ERROR IN THE CALCULATION OF TAXES AND IN TEREST. THE APPEAL OF THE ASSESSEE WAS ACCORDINGLY DISMISSED. ITA NO. 421/AGRA/2012 3 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE FILED RETURN OF INCOME AT RS.56,240/- AND PAID THE ADVANCE TAX AT R S.71,749/- AND ACCORDINGLY, CLAIMED REFUND OF RS.56,616/-. COPY OF COMPUTATION AND ACKNOWLEDGEMENT OF RETURN IS FILED AT PAGES 1 & 2 OF THE PAPER BOOK. H E HAS ALSO REFERRED TO THE BALANCE SHEET OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER APPEAL WHEREBY THE ASSESSEE HAS PAID ADVANCE TAX AT RS.71,749/-. HE HAS ALSO FI LED COPIES OF 13 CHALLANS THROUGH WHICH TAX OF RS.71,749/- HAS BEEN PAID ON DIFFERENT DATES AT PAGES 19 TO 23 OF THE PAPER BOOK. THE LD. COUNSEL FOR THE ASSESSEE SUBMIT TED THAT SINCE THE ASSESSEE HAD PAID EXCESS TAXES, THEREFORE, THERE IS NO QUESTION OF WITHDRAWING REFUND IN THE PROCEEDINGS U/S. 154 OF THE IT ACT. THE LD. COUNSEL FOR THE ASSESSEE, HOWEVER, SUBMITTED THAT WHATEVER PLEA IS NOW RAISED BEFORE T HE TRIBUNAL WAS NOT RAISED EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A). HE H AS, HOWEVER, MAINTAINED THAT THERE WAS NO ERROR IN CLAIMING CREDIT OF RS.71,749/ -, WHICH IS SUPPORTED BY ALL THE CHALLANS. ON THE OTHER HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 4. I HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE P ARTIES, PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MATERIAL PR ODUCED IN THE PAPER BOOK. IT APPEARS A CASE OF GLARING EXAMPLE WHERE INJUSTICE H AS BEEN DONE BY THE AO AS WELL ITA NO. 421/AGRA/2012 4 AS THE ASSESSEE IS ALSO PARTY TO THE INJUSTICE CAUS ED TO HIM BY NOT MAKING PROPER REPRESENTATIONS BEFORE THE AUTHORITIES BELOW. HOWEV ER, IT IS SETTLED LAW THAT THE TRIBUNAL SHALL HAVE TO CORRECT THE ERRORS IN THE PR OCEEDINGS BEFORE THE AUTHORITIES BELOW. I RELY UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KAPURCHAND SHRIMAL VS. CIT, 131 ITR 451. IT IS NOT IN DISPUTE THAT THE ASSESSEE FILED RETURN OF INCOME AT RS.56,240/-, WHICH WAS PR OCESSED ORIGINALLY U/S. 143(1) AT THE SAME INCOME. THE ASSESSEE IN THE COMPUTATION OF INCOME AND ACKNOWLEDGEMENT OF FILING OF RETURN AND THE BALANCE SHEET HAS SHOWN TAX PAID AT RS.71,749/-, WHICH IS ALSO EVIDENCED BY THE COPIES OF THE CHALLANS FILED IN THE PAPER BOOK. IT, THEREFORE, APPEARS THAT THE AO WHILE PASS ING THE IMPUGNED ORDER U/S. 154 OF THE IT ACT DID NOT TAKE INTO CONSIDERATION TAX P AID BY THE ASSESSEE AS PER THE DOCUMENTS PRODUCED BEFORE THE TRIBUNAL. SINCE THE A SSESSEE DID NOT APPEAR BEFORE THE AO AND NO REPRESENTATION IS MADE, THEREFORE, AO PROCEEDED TO CREATE DEMAND AGAINST THE ASSESSEE BY WITHDRAWING THE REFUND ALRE ADY GRANTED. SIMILARLY, NO PROPER REPRESENTATION WAS MADE BEFORE THE LD. CIT(A ) AND IT WAS MERELY CLAIMED THAT PROCEEDINGS U/S. 154 WOULD NOT LIE AGAINST SEC TION 143(1). DUE TO SHEER NEGLIGENCE ON THE PART OF THE ASSESSEE AND THEIR RE PRESENTATIVES BEFORE THE LD. CIT(A), THE PROPER CONSIDERATION OF THE MATTER COUL D NOT HAVE BEEN DONE BY THE AUTHORITIES BELOW. THE FACTS NOW DISCLOSED BY THE L D. COUNSEL FOR THE ASSESSEE THROUGH PAPER BOOK WOULD DISCLOSE THAT THE MATTER H AS NOT BEEN PROPERLY SUBMITTED ITA NO. 421/AGRA/2012 5 BEFORE THE AUTHORITIES BELOW AND THE AUTHORITIES BE LOW HAVE ALSO NOT CONSIDERED THE ISSUE IN PROPER PERSPECTIVE, OTHERWISE, TAXES PAID BY THE ASSESSEE SHOULD HAVE BEEN GIVEN CREDIT BY THE AO. SINCE THESE FACTS ARE PLEAD ED FOR THE FIRST TIME BEFORE THE TRIBUNAL, WHICH REQUIRES VERIFICATION OF TAXES PAID AT THE INSTANCE OF AO, THEREFORE, THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. I, ACCORDINGLY, SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THI S ISSUE TO THE FILE OF AO WITH THE DIRECTION TO RE-DECIDE THIS ISSUE IN THE LIGHT OF C OPIES OF CHALLANS FILED BY THE ASSESSEE IN THE PAPER BOOK TO SHOW PROPER CREDIT OF TAX HAS NOT BEEN GIVEN OF TAXES ALREADY PAID BY THE ASSESSEE. THE AO SHALL PASS THE REASONED ORDER BY GIVING REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEAR D TO THE ASSESSEE. I EXPECT THAT THE ASSESSEE WOULD NOT MAKE ANY DEFAULT BEFORE THE AO AND SHALL PRODUCE ALL THE REQUIRED EVIDENCES BEFORE THE AO FOR FINALIZATION O F MATTER ONCE FOR ALL. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY