GHALLA BHANSALI STOCK BROKERS P.LTD, MUMBAI V. DCIT 4(1), MUMBAI

ITA 4353/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 6674 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 10-06-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K SAHU
• Assessee Lawyers: DR K SHIVARAM
• Keywords: Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI . , !'# $ $ $ $ , %& '()* , %+ ,- % # BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./ I.T.A. NO.4353/MUM/2012 ( . . . . / ASSESSMENT YEAR :2009-10 M/S. GHALLA BHANSALI STOCK BROKERS PVT. LTD., DEVANSH, GROUND FLOOR, 133, D.S.P. ROAD, DADAR (E), MUMBAI-400 014 / VS. THE DCIT -4(1), AAYAKAR BHAVAN, MUMBAI-400 020 -/ %+ ./ 0 ./ PAN/GIR NO. : AAACG 5139R ( /1 / APPELLANT ) .. ( 23/1 / RESPONDENT ) /1 4 % / APPELLANT BY: DR. K. SHIVARAM 23/1 5 4 % / RESPONDENT BY: SHRI R.K. SAHU 5 6+ / DATE OF HEARING :12.06.2014 7. 5 6+ / DATE OF PRONOUNCEMENT :12.06.2014 ,%8 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. CIT(A)-8, MUMBAI DT.09.04.2012 PERTAINING TO A.Y. 2009-10. 2. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE CLAIM OF DEDUCTION OF SERVICE TAX OF RS. 13,08,871/-. ITA NO. 4353/M/2012 2 3. THE ASSESSEE IS A SHARE BROKING FIRM FOLLOWING M ERCANTILE SYSTEM OF ACCOUNTING. THE RETURN FOR THE YEAR WAS FILED O N 30.9.2009 DECLARING TOTAL INCOME OF RS. 1,53,64,440/-. THE RETURN WAS SELECTED FOR SCRUTINY ASSESSMENT AND STATUTORY NOTICES WERE ISSUED AND SE RVED UPON THE ASSESSEE. 3.1. DURING THE COURSE OF THE SCRUTINY ASSESSMENT P ROCEEDINGS, THE ASSESSEE FILED A LETTER DT. 30.9.2011 STATING THAT WHILE FINALIZING THE RETURN FOR THE YEAR UNDER CONSIDERATION SERVICE TAX OF RS. 13,08,871/- WAS NOT CLAIMED AS DEDUCTION BUT WAS SHOWN AS SERVICE TAX RECOVERABLE IN THE BALANCE SHEET. THE ASSESSEE CLAIMED THE DEDUCTION O F THE SERVICE TAX OF RS. 13,08,871/-. WITHOUT GOING INTO THE MERIT OF T HE CLAIM, THE AO DISMISSED THE CLAIM BY STATING THAT THE SAID DEDUCT ION WAS CLAIMED WITHOUT FILING REVISED RETURN OF INCOME. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) BUT WITHOUT ANY SUCCESS. WHILE DISMISSING THE CLAIM OF THE ASS ESSEE, THE LD. CIT(A) RELIED UPON THE DECISION OF THE HONBLE SUPREME COU RT IN THE CASE OF GOETZE INDIA LTD. 157 TAXMAN 01. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. 6. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE CLAIM OF THE ASSESSEE HAS BEEN DENIED SIMPLY BECAUSE IT WAS NOT CLAIMED THROUGH A REVISED RETURN OF INCOME WHICH WAS OTHERWISE AVAILA BLE TO THE ASSESSEE AS PER THE PROVISIONS OF LAW. TO SUBSTANTIATE ITS CLA IM, THE LD. COUNSEL RELIED UPON THE DECISION OF THE HONBLE JURISDICTIO NAL HIGH COURT IN THE CASE OF CIT VS PRUTHVI BROKERS AND SHARE HOLDERS PV T. LTD. 349 ITR 336. THE LD. COUNSEL ALSO RELIED UPON THE CIRCULAR OF TH E CBDT NO. 14 (XL- 35) DT. 11.4.1955. ITA NO. 4353/M/2012 3 7. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY RESISTED THE CLAIM OF THE ASSESSEE RELYING UPON THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF NTPC 229 ITR 383. 8. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES. IT IS AN UNDISPUTED FACT THAT THE ASSESSEE CLAIMED THE DE DUCTION OF SERVICE TAX OF RS. 13,08,871/- BY FILING A REVISED COMPUTATION OF INCOME DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS. IT IS AN UNDI SPUTED FACT THAT LOWER AUTHORITIES DECLINED THE CLAIM OF THE ASSESSEE WITH OUT GOING INTO THE MERITS OF THE CASE. CIRCULAR NO. 14(XL-35) OF THE CBDT DT. 11.4.1955 STATES AS UNDER: IT IS ONE OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIM ING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SH OULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PROCEEDI NGS OR OTHER PARTICULARS BEFORE THEM INDICATE THAT SOME RE FUND OR RELIEF IS DUE TO HIM. 9. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF PRUTHVI BROKERS AND SHARE HOLDERS PVT. LTD (SUPRA) HAS HELD AS UNDER: HELD, DISMISSING THE APPEAL, THAT THE ORDERS OF TH E COMMISSIONER (APPEALS) AND THE TRIBUNAL CLEARLY IND ICATED THAT BOTH THE APPELLATE AUTHORITIES HAD EXERCISED T HEIR JURISDICTION TO CONSIDER THE ADDITIONAL CLAIM. THE CONCLUSION THAT THE ERROR IN NOT CLAIMING THE DEDUCTION IN THE RETURN OF INCOME WAS INADVERTENT COULD NOT BE FAULTED FOR MOR E THAN ONE REASON. IT WAS A FINDING OF FACT WHICH COULD NO T BE TERMED PERVERSE. THERE WAS NOTHING ON RECORD THAT M ILITATED AGAINST THE FINDING. THE REVENUE HAD NOT SUGGESTED MUCH LESS ESTABLISHED THAT THE OMISSION WAS DELIBERATE O R MALA FIDE. BOTH THE APPELLATE AUTHORITIES HAD THEMSELVES CONSIDERED THE ADDITIONAL CLAIM AND ALLOWED IT. THE Y HAD NOT REMANDED THE MATTER TO THE ASSESSING OFFICER TO CON SIDER IT. ITA NO. 4353/M/2012 4 BOTH THE ORDERS EXPRESSLY DIRECTED THE ASSESSING OF FICER TO ALLOW THE DEDUCTION OF RS. 40 LAKHS UNDER SECTION 4 3B OF THE INCOME-TAX ACT, 1961. THE ASSESSING OFFICER HAD, TH EREFORE, NOW ONLY TO COMPUTE THE ASSESSEE'S TAX LIABILITY WH ICH HE MUST DO IN ACCORDANCE WITH THE ORDERS ALLOWING THE ASSESSEE A DEDUCTION OF RS. 40 LAKHS UNDER SECTION 43B. CONSIDERING THE FACTS IN TOTALITY, IN OUR CONSIDER ED OPINION, THE ASSESSEE IS ENTITLED FOR THE CLAIM OF DEDUCTION OF THE SERVICE TAX. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF THE AO. THE AO IS DIRECTED TO CONSIDER THE CLAIM OF DEDUCTION OF SERVICE TAX O F RS. 13,08,871/- AS PER PROVISIONS OF THE LAW AFTER GIVING A REASONABLE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. 10. BEFORE CLOSING, THE DECISIONS RELIED UPON BY TH E LD. DR IN THE CASE OF NTPC (SUPRA) HAS DULY BEEN CONSIDERED BY THE JUR ISDICTIONAL HIGH COURT IN THE CASE OF PRUTHVI BROKERS AND SHARE HOL DERS PVT. LTD (SUPRA) 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 12.6.2014. . ,%8 5 . +% 9 :, ; 12.6.2014 5 < SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) !'# /VICE PRESIDENT %+ ,- / ACCOUNTANT MEMBER MUMBAI; :, DATED 12.6.2014 . . ./ RJ , SR. PS ITA NO. 4353/M/2012 5 ,%8 ,%8 ,%8 ,%8 5 55 5 26' 26' 26' 26' =%'.6 =%'.6 =%'.6 =%'.6 / COPY OF THE ORDER FORWARDED TO : 1. /1 / THE APPELLANT 2. 23/1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. '?< 26 , , / DR, ITAT, MUMBAI 6. < @ / GUARD FILE. ,%8 ,%8 ,%8 ,%8 / BY ORDER, 3'6 26 //TRUE COPY// ! !! ! / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI