Raj Kumar Bhutani, New Delhi V. ACIT, New Delhi

ITA 4814/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 2915 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2014-2015
• Appeal Filed On: 08-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: V R SACHDEV CAS; MRS SONIA
• Keywords: Rectification of order; Benefit of exemption; Revised return
• Section: 54F; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER ITA NO. 4814/DEL/2016 AY: 2014-15 RAJ KUMAR BHUTANI, VS ACIT, D-70A, CIRCLE-28(1), EAST OF KAILASH, NEW DELHI. NEW DELHI. (PAN: AAGPB2474F) (APPELLANT) (RE SPONDENT) APPELLANT BY : MRS. SONIA & SHRI V.R. SACHDEV, CA S RESPONDENT BY: SHRI ATIQ AHMAD, S R. DR DATE OF HEARING: 08.01.2018 DATE OF PRONOUNCEMENT: 21.03.2018 ORDER PER SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEAL S)-10, NEW DELHI DATED 29.06.2016 AND PERTAINS TO ASSESSMENT Y EAR 2014- 15. THE GROUNDS RAISED IN THE APPEAL ARE AS UNDER:- 1. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E THE ORDER U/S 154 DATED 15-07-2015 (COMMUNICATED TO THE APPELLANT VIDE REF NO. CPC/1415/U/41510681684) NOT ALLOWING THE DEDUCTION OF RS 3,58,99,278 CLAIMED U/ S 54F OF THE INCOME TAX ACT IS BAD IN LAW AND ON FACT AND LD CIT (APPEALS) - X IS WRONG IN UPHOLDING THE SAME BY PASSING ORDER DATED 29-06-2016. ITA NO.4814/DEL/2016 ASSESSMENT YEAR 2014-15 2 2. LD CIT (APPEALS) - X IS WRONG IN NOT CONSIDERING THE SALE DEED (PURCHASE DEED FOR THE APPELLANT) DATED 0 7-09- 2013. 3. THAT, ON THE FACTS AND CIRCUMSTANCES OF THE CAS E, THE LD. ACIT, (CPC) BANGALORE IS WRONG IN TREATING THE REVISED RETURN FILED BY THE APPELLANT ON 30-07-2014 AS INVA LID RETURN AND NOT LINKING THE RETURN OF INCOME FILED B Y THE APPELLANT ON 10-02-2015 (MERELY DUE TO TECHNICAL ER ROR) AND CIT (APPEALS) IS WRONG IN UPHOLDING THE SAME. 4. THE LD. ACIT, (CPC) BANGALORE WAS INCORRECT IN TREATING THE RETURN FILED ON 10-02-2015 AS TECHNICA LLY LATE RETURN NOT ALLOWING THE DEDUCTION OF RS 3,58,99,278 CLAIMED U/S 54F OF THE INCOME TAX ACT, 1961 (WHICH WAS FILED BY THE APPELLANT AS A REVISED REMOVING ALL TH E DEFECTS IN RESPONSE TO 139(9) OF THE INCOME TAX ACT , 1961) AND CIT (APPEALS) IS WRONG IN UPHOLDING THE SAME. 5. THE APPELLANT CRAVES HIS RIGHT TO ADD ANY NEW G ROUND OR AMEND ANY GROUND DURING THE APPELLATE PROCEEDING S. 2. THE PRESENT APPEAL EMANATES FROM THE ORDER OF TH E LD. CIT (A) WHEREIN THE ASSESSEES APPEAL WAS DISMISSED ON THE ISSUE OF ALLOWING THE BENEFIT OF EXEMPTION U/S 54F OF THE IN COME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS 'THE ACT'). THE A SSESSEE IS AN INDIVIDUAL AND E-FILED THE ORIGINAL AND THE REVISED RETURN ON 30.07.2014. ON 23.01.2015, NOTICE U/S 139(9) OF TH E ACT WAS ISSUED WHEREIN IT WAS MENTIONED THAT THE RETURN OF INCOME WAS BEING CONSIDERED AS BEING DEFECTIVE AS IT WAS HAVIN G CERTAIN DEFECTS. IN RESPONSE TO THIS NOTICE, THE ASSESSEE FILED THE REVISED RETURN ON 10.02.2015 AND ALSO MENTIONED THE RECEIPT NUMBER OF ITA NO.4814/DEL/2016 ASSESSMENT YEAR 2014-15 3 THE ORIGINAL RETURN ALONG WITH THE DATE OF FILING O F ORIGINAL RETURN. SUBSEQUENTLY, INTIMATION U/S 143(1) OF THE ACT WAS ISSUED IN RESPECT OF THE REVISED RETURN FILED BY THE ASSESSEE AND A DEMAND OF RS. 98,01,754/- WAS COMMUNICATED TO THE ASSESSEE . AGAINST THIS RECTIFICATION ORDER, THE ASSESSEE APPROACHED T HE LD. CIT (A). THE LD. CIT (A) WAS OF THE OPINION THAT CPC BANGALO RE HAD RIGHTLY RAISED THE DEMAND AS THE RETURN WAS FILED LATE AND THE CLAIM OF DEDUCTION U/S 54F OF THE ACT WAS NOT MAINTAINABLE. NOW, THE ASSESSEE HAS APPROACHED THE ITAT AND HAS CHALLENGED THIS ACTION OF THE LD. CIT (A). 3. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD FILED THE ORIGINAL RETURN FOR ASSESSMENT YEAR 2014-15 VIDE ACKNOWLEDGEMENT NUMBER 289316691300714 BY CLAIMING REFUND OF RS. 2,38,383/- ON 30.07.2014. THEREAFTER, AFTER FILING THIS ORIGINAL RETURN, IT CAME TO THE KNOWLEDGE OF THE AS SESSEE THAT HE HAD MADE AN EXCESS CLAIM OF TDS AMOUNTING TO RS. 2, 31,840/-. THEREFORE, THE REVISED RETURN WAS FILED ON THE VERY SAME DATE I.E. 30.07.2014 VIDE ACKNOWLEDGMENT NO. 289608131300714. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE GOT A COMMUNICA TION FROM CPC BANGALORE DATED 23.01.2015 THAT THE REVISED RET URN SUBMITTED BY HIM WAS DEFECTIVE. IN RESPONSE, THE A SSESSEE FILED ITA NO.4814/DEL/2016 ASSESSMENT YEAR 2014-15 4 THE REVISED RETURN ON 10.02.2015 VIDE ACKNOWLEDGMEN T NO. 479311871100215 BY INADVERTENTLY GIVING REFERENCE O F THE ORIGINAL RETURN I.E. ACKNOWLEDGMENT NO.289316691300 714. IT WAS FURTHER SUBMITTED THAT BY DOING SO, THE REVISED RETURN AND THE COMMUNICATION REFERENCE U/S 139(9) COULD NOT BE LINKED IN THE RECORD OF THE CPC. IT WAS FURTHER SUBMITTED TH AT THEREAFTER THE ASSESSEE RECEIVED AN INTIMATION U/S 143(1) OF T HE ACT WITH A DEMAND OF RS. 98,01,750/- ON 17.06.2015 AND THE REA SON FOR RAISING THE DEMAND WAS THAT THE BENEFIT OF EXEMPTIO N CLAIMED U/S 54F AMOUNTING TO RS. 3,58,99,278/- WAS NOT GIVEN T O THE ASSESSEE. IT WAS FURTHER SUBMITTED THAT IN RESPONS E, THE ASSESSEE FILED ONLINE RECTIFICATION U/S 154 OF THE ACT ON 29 .06.2015. HOWEVER, THE RECTIFICATION ORDER U/S 154 WAS AGAIN PASSED WITH THE SAME DEMAND AS GENERATED U/S 143(1) OF THE ACT. THE LD. AR SUBMITTED THAT THE EXEMPTION U/S 54F HAD RIGHTLY BE EN CLAIMED BY THE ASSESSEE BUT THE SAME HAD BEEN REJECTED BY C PC BANGALORE WITHOUT PASSING A SPEAKING ORDER. IT WAS ALSO SUBMITTED THAT THE MISTAKE IN FILING OF THE RETURN OCCURRED DUE TO THE ASSESSEE HIMSELF FILING THE RETURN AND NOT TAKI NG THE HELP OF ANY PROFESSIONAL. IT WAS SUBMITTED THAT SUITABLE D IRECTIONS MAY BE GIVEN TO THE ASSESSING OFFICER TO TREAT THE ORIG INAL RETURN FILED ITA NO.4814/DEL/2016 ASSESSMENT YEAR 2014-15 5 ON 30.07.2014 AS THE RETURN FILED U/S 139(1) OF THE ACT AND GIVE BENEFIT OF CLAIM OF EXEMPTION U/S 54F TO THE ASSESS EE. 4. THE LD. DR PLACED RELIANCE ON THE ORDER OF THE L D. CIT (A). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS APPARENT TH AT THE ASSESSEES RETURN BEARING ACKNOWLEDGMENT NO. 289316691300714 W AS TREATED AS NON EST AS THE ASSESSEE FILED A REVISED RETURN ON THE VERY SAME DATE BEARING ACKNOWLEDGMENT NO.2896081313 00714. THEREAFTER, A REVISED RETURN FILED IN RESPONSE TO N OTICE U/S 139(9) WAS TREATED AS BELATED SINCE THE DUE DATE FOR FILIN G OF RETURN WAS 31.07.2014. ACCORDINGLY, THE ASSESSEE COULD NOT BE GRANTED BENEFIT OF DEDUCTION U/S 54F OF THE ACT. HOWEVER, THE FACT DOES REMAIN THAT THE ASSESSEE HAD FILED THE RETURN OF IN COME ON 30.07.2014 WHICH WAS BEFORE THE LAST DATE OF FILING OF RETURN FOR THE PURPOSE OF CLAIMING DEDUCTION U/S 54F AND DUE T O AN INADVERTENT ERROR ON THE PART OF THE ASSESSEE, THE BENEFIT OF DEDUCTION COULD NOT BE ALLOWED TO HIM. ON OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, IT IS OUR CONSIDERED OPI NION THAT THE ASSESSEE SHOULD BE GIVEN THE BENEFIT OF DEDUCTION U /S 54F IF IT HAS BEEN RIGHTLY CLAIMED IN THE FIRST RETURN OF INC OME BEARING ITA NO.4814/DEL/2016 ASSESSMENT YEAR 2014-15 6 ACKNOWLEDGMENT NO. 289316691300714. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF THE AO TO DULY CONSIDER TH E ASSESSEES CLAIM OF EXEMPTION U/S 54F AS PER MANDATE OF LAW BY CONSIDERING THE ASSESSEES RETURN OF INCOME BEARING ACKNOWLEDGM ENT NO. 289316691300714. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST MARCH, 2018. SD/- SD/- (PRASHANT MAHARISHI) (SUDHAN SHU SRIVASTAVA) ACCOUNTANT MEMBER JUDICIAL ME MBER DT. 21 ST MARCH 2018 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR