Shri Rikhab Chand Jain, JODHPUR V. ITO, SUMERPUR

ITA 442/JODH/2011

• Counselvise Citation: 44223314 RSA 2011
• Duration Of Justice: 2 year(s) 5 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 21-03-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 22-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Assessee Lawyers: N R MERTIA
• Keywords: Business income; Opportunity of being heard; Earning of tax free income; Wrong claim; Revised return
• Section: 154

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.441 & 442/JODH/2011 (A.Y. 2008-09) SHRI RIKHAB CHAND JAIN, VS. ITO , SUMERPUR. C/O M/S. MERTIA & COMPANY, C.AS., VATSALYA, 244, KAMLA NEHRU NAGAR, OPP. PRAKARTIC CHIKITSA KENDRA, CHOPASNI ROAD, JODHPUR. PAN NO. AASPJ 5018 R (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI N.R. MERTIA. DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 11/06/2014. DATE OF PRONOUNCEMENT : 11/06/2014. O R D E R PER N.K. SAINI, A.M THESE APPEALS BY THE ASSESSEE ARE DIRECTED AGAINST THE SEPARATE ORDERS EACH DATED 21/10/2011 OF THE LD. CIT(A),JODH PUR. 2 FIRST WE WILL DEAL WITH THE APPEAL IN I.T.A.NO. 44 2/JODH/2011. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL:- 2 1. THE ORDER UNDER APPEAL DATED 21/10/2011 OF LD. CIT(A), JODHPUR IS BAD IN LAW AND BAD IN FACTS. IT DESERVES TO BE QUA SHED BY ALLOWING THE APPEAL. 2. THAT THE LD. CIT(A) IN THE FACTS AND IN THE CIRC UMSTANCES OF THE CASE ERRED IN LAW AND IN FACTS, IN UPHOLDING THE ACTION OF LD. AO IN REJECTING THE APPLICATION U/S 154 OF THE ACT. THE SAME OUGHT NOT TO HAVE BEEN UPHELD BY HIM. THE HON'BLE ITAT MAY VERY KINDLY AL LOW THE SAME. 3. THAT THE LD. CIT(A) ERRED IN LAW AND IN FACTS IN NOT APPRECIATING THE POSITION OF LAW AS REGARDS TO FILING OF REVISED RET URN AFTER THE PRESCRIBED PERIOD AND SUCH CLAIM OF RELIEF WAS TO B E MADE IN REVISED RETURN, COULD BE RAISED THEREAFTER IN THE APPELLATE FORUMS ONLY IN THE LIGHT OF THE GOETZ INDIAS CASE. 4. THE LD. CIT(A) ERRED IN NOT APPRECIATING THE FAC T AND POSITION OF LAW THAT THE COMPUTER PREPARED PAPERLESS RETURN OF INCO ME WAS MANDATORILY REQUIRED TO BE FILED, AND THAT TOO, WAS OR COULD ONLY BE PREPARED ON THE COMPUTER AND IN SMALL TOWNS, THIS F ACILITY IN AN EFFICIENT MANNER WAS HARDLY AVAILABLE, IN SUCH CIRC UMSTANCES IF ANY APPARENT/INADVERTENT ERROR TOOK PLACE IN PLACING/FI LLING THE FIGURES IN THE COLUMNS OF RETURN, THE APPELLANT OR ANY OTHER A SSESSEE, REMAINS FULLY HANDICAPPED. IN SUCH CIRCUMSTANCES IN VIEW O F THE OTHER FIGURES OF REFUND AND REBATE AVAILABLE IN S.NO. 9, AT PAGE NO.1, AND S.NO. 7 AND 13 AT PAGE NO. 9 OF RETURN SHOWING /CLAIMING TA X RELIEF FROM THE TAX DETERMINED IN THE RETURN ARE ESSENTIALLY TO BE VERIFIED, COMPARED AND ALLOWED IN VIEW OF THE OTHER RELATED FIGURES AV AILABLE, IN CASE A CLAIM IS DENIED U/S 143(1). 5. THE LD. CIT(A) ERRED IN GIVING FINDING BY OVERLO OKING THE FACT AND MANDATES OF THE CIRCULAR AND JUDICIAL PRONOUNCEMENT ETC. CITED BEFORE HIM, THAT THE LD. A.O. CORRECTLY PROCESSED THE RETU RN, ASSESSED THE DEMAND AND REJECTED THE CLAIM U/S 154 AS PER STATUT ORY PROVISIONS. THE LD. CIT(A) ERRED IN HOLDING SO. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, SUBSTI TUTE AMEND OR DELETE THE GROUNDS HEREIN ABOVE TAKEN ON OR BEFORE THE HEA RING. 7. THE APPELLANT, THEREFORE, MOST RESPECTFULLY PRAY S THAT HIS APPEAL MAY KINDLY BE ALLOWED BY DIRECTING THE LD. AO TO ALLOW THE TAX RELIEF CLAIMED ON AGRICULTURE INCOME CLAIMED. 3 3. FROM THE ABOVE GROUNDS, IT IS NOTED THAT ONLY GRIE VANCE OF THE ASSESSEE IN THIS APPEAL RELATES TO THE REJECTION OF APPLICATION U/S 154 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT). 4. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSE E FILED THE RETURN OF INCOME ON 31/07/2008 DECLARING A TOTAL INCOME OF RS . 3,78,690/-. THE ASSESSING OFFICER NOTICED THAT IN THE RETURN, THE A GRICULTURAL INCOME WAS SHOWN AS NIL AND A RELIEF IN TERM OF SECTION 88B/88 C OF THE ACT HAD BEEN ALLOWED AT RS. 13,000/- THROUGH THE INTIMATION U/S 143(1) OF THE ACT. THE ASSESSEE MOVED AN APPLICATION U/S 154 OF THE A CT STATING THEREIN THAT TOTAL INCOME DECLARED AT RS. 3,78,687/ - INCLUDED AGRICULTURAL INCOME TO THE EXTENT OF RS. 2,08,284/- AND BALANCE INCOME AMOUNTING TO RS. 1,64,915/- WAS BUSINESS INCOME AND RS. 5,487/- AS OTHER INCOME. THE ASSESSING OFFICER REJECTED THE APPLICATION OF THE A SSESSEE BY STATING THAT THERE WAS NO ORDER IN THIS CASE WHICH COULD BE RECT IFIED IN TERMS OF THE PROVISION OF SECTION 154 OF THE ACT AND THE RETURN OF INCOME FILED BY THE ASSESSEE WAS SIMPLY PROCESSED U/S 143(1) OF THE ACT AND THERE WAS NO APPARENT MISTAKE SO FAR AS THE INTIMATION IS CONCER NED. 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER T O THE LD. CIT(A) AND SUBMITTED THAT THIS WAS NOT AT ALL A CASE WHERE IT COULD BE SAID THAT 4 THE ASSESSEE HAD SOUGHT A REVIEW OF THE ORDER, BUT IT WAS SIMPLE REQUEST U/S 154 OF THE ACT FOR RECTIFICATION OF A PATENT MI STAKE ON RECORD WHICH INCLUDED A MISTAKE APPARENT FROM THE RECORD. IT WA S FURTHER STATED THAT IN THIS CASE ANY AGRICULTURAL INCOME WHICH WAS ERRO NEOUSLY/INADVERTENTLY MENTIONED UNDER THE HEAD EXPENSES DEBITED IN THE PR OFIT & LOSS ACCOUNT AGAINST THE EXEMPT INCOME WHEREIN NEITHER POSITIVE NOR NEGATIVE INCOME OF THIS NATURE APPEARED. IT WAS SO BECAUSE NO EXEM PT INCOME WAS APPEARING IN THE BOOK OF THE ASSESSEE. IT WAS CONT ENDED THAT THE RELEVANT PAPERS RELATING TO AGRICULTURAL INCOME WER E AVAILABLE WITH THE RETURN OF INCOME, BUT FOR THE YEAR UNDER CONSIDERAT ION, THE RETURN FILED WAS PAPERLESS RETURN, SO THE ASSESSEE COULD NOT FUR NISH THE RELEVANT PAPERS WITH THE RETURN OF INCOME, BUT THE ASSESSING OFFICER IN THE INTIMATION U/S 143(1) OF THE ACT ERRONEOUSLY/INADVE RTENTLY MENTIONED UNDER THE HEAD EXPENSES DEBITED IN THE PROFIT & LOS S ACCOUNT AGAINST THE EXEMPT INCOME. THEREFORE, THE ASSESSEE FILED THE A PPLICATION FOR RECTIFICATION U/S 154 OF THE ACT. 6 . THE LEARNED CIT(A), AFTER CONSIDERING THE SUBMISS IONS OF THE ASSESSEE, OBSERVED THAT FOR ANY WRONG CLAIM OR SHOW ING IN WRONG HEAD, THE ACT PROVIDES REMEDY TO THE ASSESSEE TO FILE A R EVISED RETURN OF INCOME, BUT THE ASSESSEE HAD FAILED TO DO SO AND A MISTAKE COULD NOT BE 5 RECTIFIED U/S 154 OF THE ACT. HE, THEREFORE, CONFI RMED THE ACTION OF THE ASSESSING OFFICER. RELIANCE WAS PLACED ON THE JUDG MENT OF HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT REPORTED IN 284 ITR 323. BEING AGGRIEVED, THE ASSESSEE IS IN APPEA L. 7 . LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE S UBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND FURTHER SUBMITTED THAT SINCE THE MISTAKE WAS APPARENT FROM RECORD, THE LD. CIT(A) OU GHT TO HAVE DIRECTED THE ASSESSING OFFICER TO CORRECT THE SAME. HE REQU ESTED THAT MATTER MAY BE SENT BACK TO THE LD. CIT(A) FOR FRESH ADJUDICATI ON IN ACCORDANCE WITH LAW. LEARNED D.R. DID NOT OBJECT IF THE MATTER I S SENT BACK TO THE LD. CIT(A). 8 . IN VIEW OF THE AFORESAID SUBMISSIONS OF BOTH THE PARTIES, THIS ISSUE IS SET ASIDE AND REMITTED BACK TO THE FILE OF THE LD. CIT(A) TO BE ADJUDICATED AFRESH IN ACCORDANCE WITH LAW AFTER PRO VIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 9 . AS REGARD TO THE APPEAL IN I.T.A.NO. 441/JODH/201 3, LEARNED COUNSEL FOR THE ASSESSEE HAS GIVEN IN WRITING ON TH E ORDER SHEET AS UNDER:- THIS APPEAL IS WITHDRAWN SD/- XXXXX 6 IN THAT VIEW OF THE ABOVE, THE APPEAL IN I.T.A.NO. 441/JODH/2011 IS DISMISSED AS WITHDRAWN. 10 . IN THE RESULT, APPEAL IN I.T.A.NO. 442/JODH/2011 IS ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL IN I.T.A.NO. 44 1/JODH/2011 IS DISMISSED AS WITHDRAWN. (ORDER PRONOUNCED IN THE COURT ON 11 TH JUNE, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11 TH JUNE, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.