Orissa State Co-Op. Milk Federation Ltd, Bhubaneswar V. ITO, Bhubaneswar

ITA 508/CTK/2011

• Counselvise Citation: 50822114 RSA 2011
• Duration Of Justice: 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-09-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 28-08-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-12-2011
• Court: TRIBUNAL
• Department Lawyers: S RMATI PARAMITA TRIPATHY
• Assessee Lawyers: B K MOHAPATRA
• Keywords: Opportunity of being heard; Principle of natural justice; Revised return
• Section: 139(5)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 508/CTK/2011 / ASSESSMENT YEAR 2008 - 09 ORISSA STATE CO - OP.MILK EDERATION LIMITED, PLOT NO.3 - 2, SAHID NAGAR,BHUIBANESWAR 751 007 PAN: AABTT 3220 G - - - VERSUS - ITO, WARD 2 (1), BHUBANESWAR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.K.MOHAPATRA, AR / FOR THE RESPONDENT: / S RMATI PARAMITA TRIPATHY, CIT - DR / DATE OF HEARING: 28 .08.2012 / DATE OF PRONOUNCEMENT: 14.09.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DT.16.09.2011 OF THE COMMISSIONER OF INC OME - TAX (APPEALS) FOR THE AY 2008 - 09 RAISING THE FOLLOWING ISSUES. 1 . THAT THE ORDER DATED 16.09.2011 PASSED BY THE LEARNED CIT(APPEALS) DISMISSING THE APPEAL IS AGAINST PRINCIPLES OF NATURAL JUSTICE, CONTRARY TO FACTS, ARBITRARY, ERRONEOUS, BAD IN LAW A ND LEGALLY UNTENABLE. 2. THAT THE DISMISSING OF THE GROUNDS 2 TO 6 BEFORE THE LEARNED CIT(APPEALS) VIDE ORDER DATED16.09.20 11 ON THE GROUND OF NO MERIT IS ON MIS - APPRECIATION OF /CONTRARY TO FACTS, ARBITRARY, ERRONEOUS AND BAD IN LAW AND LEGALLY UNTENA BLE. 3. REJECTION/NON ACCEPTANCE OF REVISED RETURN FILED A. THAT THE REVISED RETURN FILED BY THE ASSESSEE ON 30.3.2010 U/S.139(5) OF THE ACT IS LEGALLY VALID AND THE REJECTION OF THE SAME BY THE LEARNED AO VIDE HIS ORDER DATED 31.12.2010 IS CONTRARY TO F ACTS, ARBITRARY, ERRONEOUS AND BAD IN LAW; THE LEARNED CIT(APPEALS)S ORDER IN UPHOLDING THE SAME IS ON MIS - APPRECIATION OF /CONTRARY TO FACTS, ARBITRARY, ERRONEOUS, BAD IN LAW AND LEGALLY UNTENABLE. I.T.A.NO. 508/CTK/2011 2 B. THAT THE LEARNED CIT(APPEALS) HAS MIS - APPRECIATED/ IG NORED/ FAILED TO TAKE INTO CONSIDERATION THE VARIOUS DETAILS/PARTICULARS AND SUBMISSIONS FILED BEFORE HIM AND HAS GROSSLY ERRED BOTH ON FACTS AND IN LAW IN HOLDING THAT THE ASSESSEE FAILED TO PROVIDE THE DEFECTS IN THE ORIGINAL RETURN AND NEXUS BETWEEN THE ORIGINAL RETURN AND THE REVISED RETURN. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES THE CASE, THE ASSESSMENT OF INCOME FROM BUSINESS AT RS.43,32,615 AND INCOME FROM OTHER SOURCES AT RS.1,44,31,216! - BY THE LEARNED AO, IGNORING THE STATUTORY AUDITED ACCOUNTS, VIDE HIS ORDER DATED 31.12.2010 AND UPHOLDING OF THE SAME BY THE LEARNED CIT(APPEALS) IS ARBITRARY, ERRONEOUS AND BAD IN LAW. 5. THAT WITHOUT PREJUDICE TO GROUNDS (1) TO (4) ABOVE, THE LEARNED AO HAVING PARTLY ACCEPTED THE REVISED RETURN WHILE ASSESSING THE INCOME FROM HOUSE PROPERTY, HE OUGHT NOT HAVE REJECTED/IGNORED THE AMOUNTS AS PER THE REVISED RETURN FOR ASSESSING THE INCOME FROM BUSINESS AND INCOME FROM OTHER SOURCE. 6. THAT THE LEARNED CIT(APPEALS) HAS FAILED TO ADJUDICATE GROUND NO .8 BEFORE HIM. 7. THAT THE LEARNED AO HAVING FAILED TO GIVE FULL CREDIT FOR TDS RS.9,45,197 AND TAX PAID OF RS.6,49,168 I.E.(RS.44,73,658 - RS.38,24,490), THE LEARNED CIT(APPEALS) OUGHT HAVE GIVE THE SAME. 2. THE BRIEF FACTS RELATING TO THE ISSUES, AS HA VE BEEN BROUGHT ON RECORD, ARE THAT THE ASSESSEE, ORISSA STATE CO - OP. MILK FEDERATION LIMITED (OMFED), IS A CO - OPERATIVE SOCIETY AND IS ENGAGED IN THE BUSINESS OF PROCESSING AND MARKETING OF MILK PRODUCTS, PLO PRODUCTS AND TURMERIC POWDER AND ALSO RECEIVES RENT AND INTEREST. FOR THE ASSESSMENT YEA R 2008 - 09 (PREVIOUS YEAR 2007 - 0 8) THE INCOME TAX RETURN OF THE ASSESSEE SOCIETY WAS FILED, BY THE DUE DATE U/S. 139(1) OF THE INCOME TAX ACT, 1961 AT A TOTAL INCOME OF RS. 1,72, 19,162 WHICH WAS BASED ON THE PROVIS IONAL ACCOUNTS AS THE STATUTORY AUDIT BY THE REGISTRAR OF CO - OPERATIVE SOCIETIES WAS NOT COMPLETED. IN THE SAID RETURN TDS OF RS.8,85,602 APART FROM TAX PAID OF RS.44,73,658 HAS BEEN CLAIMED. SUBSEQUENTLY, AFTER COMPLETION OF THE STATUTORY AUDIT, BASED ON THE AUDITED ACCOUNTS BY THE REGISTRAR OF CO - I.T.A.NO. 508/CTK/2011 3 OPERATIVE SOCIETIES, A REVISED RETURN U/S. 139(5) WAS FI LED ON 30.03.2010 AT A LOSS OF RS.1,54,58,594 WHEREIN TDS OF RS.9,45,197 APART FROM THE AFORESAID TAX PAID OF RS.44,73,658 HAS BEEN CLAIMED AND THEREBY REFU ND WAS PAYABLE TO THE ASSESSEE. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND AFTER ISSUING NECESSARY NOTICES COMPLETED THE ASSESSMENT U/S.143(3) OF THE I.T.ACT. WHILE DOING SO THE ASSESSING OFFICER DID NOT ACCEPT THE REVISED RETURN DT.30.3.2010 A ND HAS TREATED THE FINANCIAL RESULTS OF THE ORIGINAL RETURN AS THE INCOME OF THE ASSESSEE, BUT HAS ACCEPTED THE RENT OF RS.6,22,220 AS PER THE SAID REVISED RETURN DT.30.03.2010 A ND HAS COMP L ETED THE ASSESSMENT ON A TOTAL INCOME OF 1,75,72,280 BY MAKING VA RIOUS ADDITIONS. 3. AGGRIEVED THE ASSESSEE APPEALED BEFORE THE FIRST APPELLATE AUTHORITY WHEN THE LEARNED CIT(A) CONFIRMED THE SAID ASSESSMENT DISMISSING THE CONTENTION OF THE ASSESSEE THAT THE REVISED RETURN FILED BY THE ASSESSEE SHOULD HAVE BEEN CONSIDE RED BY THE ASSESSING OFFICER HOLDING THAT THE INTENTION OF REVISED RETURN IS TO RECTIFY ANY SPECIFIC OMISSION OR COMMISSION IN THE ORIGINAL RETURN BUT THERE IS NO RELATIONSHIP BETWEEN THE ORIGINAL AND REVISED RETURN. FOR THIS PROPOSITION, HE RELIED ON THE DECISION OF CALCUTTA HIGH COURT IN THE CASE OF CIT V. CHITRANJALI (159 ITR 801) 4. AGGRIEVED THE ASSESSEE IS IN THE PRESENT APPEAL HERE BEFORE THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE IMPUGNED ORDERS OF THE AUTHORITIE S BELOW AND ALSO THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL. BEFORE US, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN WAS FILED BY THE ASSESSEE BASING ON THE PROVISIONAL ACCOUNT AS THE STATUTORY AUDIT BY THE REGISTRAR OF CO - OP. SOCIETI ES WAS NOT COMPLETED AND SOON AFTER COMPLETION OF THE STATUTORY I.T.A.NO. 508/CTK/2011 4 AUDIT, THE ASSESSEE FILED THE REVISED RETURN U/S.139(5) ON THE BASIS OF SUCH AUDIT REPORT. IN VIEW OF THE ABOVE, THE DEPARTMENTAL AUTHORITIES SHOULD HAVE ACCEPTED AND ACTED UPON THE REVISED RE TURN FILED BY THE ASSESSEE WITHIN THE TIME LIMIT PRESCRIBED UNDER THE ACT. THE LEARNED AR OF THE ASSESSEE DEMONSTRATED BEFORE US THAT THE REVISED RETURN SO FILED IS ON THE BASIS OF STATUTORY AUDIT REPORT. THEREFORE, WE FIND NO REASON FOR THE DEPARTMENTAL A UTHORITIES NOT TO ACT UPON THE REVISED RETURN. IN SUCH VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW AND RESTORE THE MATTER TO THE FILE OF ASSESSING OFFICER TO RE - DO THE ASSESSMENT TAKING INTO CONSIDERATION THE REVISED RETUR N FILED BY THE ASSESSEE AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. SD/ - SD/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 14.09.2012 - COPY OF THE ORDER FORW ARDED TO: 1. / THE APPELLANT : ORISSA STATE CO - OP.MILK EDERATION LIMITED, PLOT NO.3 - 2, SAHID NAGAR,BHUIBANESWAR 751 007 2 / THE RESPONDENT: ITO, WARD 2(1), BHUBANESWAR 3. / THE CIT, 4. ( ) / THE CIT(A), 5. / DR, CUTTACK BENCH 6. GUARD FILE . / TRUE COPY, / BY ORDER, ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 508/CTK/2011 5 APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 11.09.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.09.2012 OTHE R MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S 14.09.2012 . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..