M/s G.Pulla Reddy Charitable Trust, Secunderabad V. DDIT, Hyderabad

ITA 436/HYD/2008

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 3399 (ITAT-HYDERABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 12-03-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Assessee Lawyers: K C DEVADAS
• Keywords: Charitable institution

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI G.C.GUPTA, VICE PRESIDENT AND SHRI AKBER BASHA, ACCOUNTANT MEMBER ITA NO.435/HYD/2008 : ASS ESSMENT YEAR 2002-03 ITA NO.436/HYD/2008 : ASS ESSMENT YEAR 2003-04 M/S. G.PULLA REDDY CHARITABLE TRUST, HYDERABAD. ( PAN AAATG 2992 F ) V/S. JOINT COMMISSIONER OF INCOME TAX, KURNOOL RANGE, KURNOOL. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C.DEVADAS RESPONDENT BY : SHRI K.V.N.CHARYA O R D E R PER G.C.GUPTA, VICE PRESIDENT: THESE TWO APPEALS BY THE ASSESSEE FOR THE ASSESSM ENT YEARS 2002-03 AND 2003-04 ARE DIRECTED AGAINST THE ORDERS OF THE COMMISSIONER OF INCOME- TAX(APPEALS). THESE APPEALS ARE BEING DISPOSED OFF WITH THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NO.435/HYD/2008 : ASSESSMENT YEAR 2002- 03 2.. THE ONLY EFFECTIVE GROUND OF APPEAL OF THE AS SESSEE IS GROUND NO.1, AND IT READS AS UNDER- 1. THE ORDER OF THE CIT(A)-IV, HYDERABAD IN SUSTAI NING THE LEVY OF PENALTY IMPOSED U/S. 272A(2)(E) OF THE INCOME TAX A CT, 1961 AT RS.80,200 IS WHOLLY UNSUSTAINABLE BOTH ON FACTS AND IN LAW. 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE INVOLVED IN THE ABOVE GROUND OF APPEAL IS COVERED I N FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE S FOR THE ASSESSMENT YEARS ITA NO.435-436./HYD/08 M/S. G.PULLA REDDY CHARITABLE TRUST, HYD 2 1997-98 TO 2001-02 IN ITA NOS.1 TO 5/HYD/2007 DATED 11.2.2010 THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS RELIED ON THE ORDER S OF THE ASSESSING OFFICER AND THE CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE F IND THAT THE ISSUE OF VALIDITY OF PENALTY IMPOSED UNDER S.272A(2)(E) OF THE INCOME-TAX ACT, 1961 IS COVERED WITH THE DECISION OF THE TRIBUNAL IN ASSESS EES OWN CASE FOR THE ASSESSMENT YEARS 1997-98 TO 2001-02 DATED 11.2.2010 CITED SUPRA. THE TRIBUNAL FOR THOSE YEARS HAS DIRECTED THE ASSESSING OFFICER TO RECOMPUTE THE PENALTY UPTO THE PERIOD WITHIN WHICH THE ASSESSEE COULD HAVE FIL ED THE RETURN OF INCOME AS LAID DOWN IN S.139(4) OF THE ACT. RELEVANT PORTION OF PARA 8.8 OF THE TRIBUNALS ORDER DATED 11.2.2010 FOR THOSE YEARS IS REPRODUCED HER EUNDER- 8.8 FURTHER, THE ARGUMENT OF THE ASSESSEE COUNSE L IS THAT THE PENALTY TO BE LEVIED FOR NON FILING THE RETURN OF I NCOME TO THE PERIOD WITHIN WHICH THE ASSESSEE COULD HAVE FILED THE RETURN OF I NCOM E AND IT CANNOT BE LEVIED FOR AN INDEFINITE PERIOD TILL THE DEFAULT CO NTINUES. WE FIND FORCE IN THIS ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESS EE. THE ASSESSEE CANNOT FILE A RETURN OF INCOME AFTER THE TIME LIMIT PROVID ED U/S. 139(4) OF THE IT ACT. IN SUCH CIRCUMSTANCES EVEN IF THE ASSESSEE FI LES THE RETURN OF INCOME FOR ANY ASSESSMENT YEAR AFTER THE EXPIRY OF THE TIM E LIMIT LAID DOWN U/S. 139(4) IT IS INVALID RETURN. IN VIEW OF THIS, WE A RE OF THE OPINION THAT FOR DEFAULT U/S. 272(2)(A) OF THE IT ACT, TIME LIMIT TO BE COUNTED AS LAID DOWN IN SECTION 139(4) OF THE IT ACT. ACCORDINGLY, WE D IRECT THE ASSESSING OFFICER TO RECOMPUTED THE PENALTY. .. WE, BEING IN AGREEMENT WITH THE DECISION OF THE COO RDINATE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE DATED 11.2.2010 CITED SUPRA AND THE FACTS FOR THE RELEVANT YEAR IN APPEAL BEFORE US BEING IDENTICAL WITH THE C ASE BEFORE THE TRIBUNAL IN EARLIER ASSESSMENT YEARS, DIRECT THE ASSESSING OFFI CER TO RECOMPUTE THE PENALTY UNDER S.272A(2)(E) OF THE ACT UPTO THE TIME LIMIT T O BE COUNTED AS LAID DOWN UNDER S.139(4) OF THE ACT. WE DIRECT ACCORDINGLY A ND THE GROUND OF APPEAL NO.1 OF THE ASSESSEE IS PARTLY ALLOWED. 5. IN THE RESULT, ASSESSEES APPEAL IS PARTLY ALLO WED. ITA NO.435-436./HYD/08 M/S. G.PULLA REDDY CHARITABLE TRUST, HYD 3 ITA NO.436/HYD/2008 : ASSESSMENT YEAR 2003- 04 6. THE ONLY EFFECTIVE GROUND OF APPEAL OF THE ASS ESSEE IS GROUND NO.1, AND IT READS AS UNDER- 1. THE ORDER OF THE CIT(A)-IV, HYDERABAD IN SUSTAI NING THE LEVY OF PENALTY IMPOSED U/S. 272A(2)(E) OF THE INCOME TAX A CT, 1961 AT RS.31,800 IS WHOLLY UNSUSTAINABLE BOTH ON FACTS AND IN LAW. 7. THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT PR ESSED THIS GROUND OF APPEAL OF THE ASSESSEE, WHICH IS ACCORDINGLY REJECT ED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED. 9. TO SUM UP, WHILE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2002-03, BEING ITA NO.435/HYD/2008 IS PARTLY ALLOWE D, THE APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2003-04, BEING ITA NO.436/HYD/2008, IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 13.04.2011 SD/- SD/- (AKBER BASHA) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 13.04.2011 COPY FORWARDED TO: 1. M/S. G.PULLA REDDY CHARITABLE TRUST, C/O. M/S. SEKHAR & CO., CHARTERED ACCOUNTANT, 133/4, R.P. ROAD, SECUNDERABA D. 2. JOINT COMMISSIONER OF INCOME TAX, KURNOOL RANGE, KURNOOL 3. COMMISSIONER OF INCOME - TAX(APPEALS) IV, HYDERABAD 4. COMMISSIONER OF INCOME TAX III, HYDERABAD 5. THE DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S