Madhabi Nag, Bankura V. ACIT, CIR-1, ASANSOL, Asansol

ITA 512/KOL/2015

• Counselvise Citation: 51223514 RSA 2015
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 05-05-2015
• Court: TRIBUNAL
• Department Lawyers: AMITAV BHATTACHARJEE
• Assessee Lawyers: R N RAM
• Keywords: Revised return
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH SMC, KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM] ITA NO.512/KOL/2015 ASSESSMENT YEAR : 2008-09 MADHABI NAG -VERSUS- A.C.I.T., CIRCLE-1, BANKURA ASANSOL (PAN:ABOPN 6259 P (APPELLANT ) (RESPONDENT) FOR THE APPELLANT : SHRI R.N.RAM, ADVOCATE FOR THE RESPONDENT : SHRI AMITAV BHATTACHARJEE, J CIT, SR.DR DATE OF HEARING : 30.11.2015. DATE OF PRONOUNCEMENT : 09.12.2015. ORDER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 09.03.2015 OF CIT(A)-ASANSOL RELATING TO A.Y.2008-09. 2. THE ASSESSEE IS AN INDIVIDUAL. DURING THE PREVI OUS YEAR RELATING TO A.Y.2005-06 THE ASSESSE FILED THE RETURN OF INCOME DECLARING L ONG TERM CAPITAL GAIN ON SALE OF SHARES OF RS.12,32,025/-. THE AO ISSUED AN INTIMAT ION U/S 143(1) OF THE INCOME TAX ACT, 1961 (ACT) DATED 03.02.2010 ACCEPTING THE INCO ME RETURNED BY THE ASSESSEE. 3. THE ASSESSEE FILED AN APPLICATION U/S.154 OF THE ACT BEFORE AO POINTING OUT THAT THE LONG TERM CAPITAL GAIN ON SALES OF SHARES WAS W RONGLY OFFERED TO TAX AND THAT THE SAME WAS EXEMPTED U/S 10(38) OF THE ACT. THE ASSESS EE PRAYED THAT APPARENT ERROR U/S 10(38) OF THE ACT BE RECTIFIED. THE AO, HOWEVER, HE LD BY THIS ORDER DATED 28.10.2010 PASSED U/S 154 OF THE ACT THAT THE ASSESSEE HAD NOT GIVEN THE RELEVANT DETAILS OF ACQUISITION AND PROOF OF PAYMENT OF STT AND THEREFO RE THE REQUEST OF THE ASSESSEE FOR RECTIFICATION CANNOT BE ACCEPTED. ITA NO.512/KOL/2015 MADHABI NAG. A.YR.2008-09 2 4. AGGRIEVED BY THE ORDER OF AO THE ASSESSEE PREFER RED APPEAL BEFORE CIT(A). THE CIT(A) WAS OF THE VIEW THAT THE ASSESSEE OFFERE D TO TAX THE LONG TERM CAPITAL GAIN IN THE RETURN OF INCOME FILED BY HIM. THE ASSESSEE HAD NOT FILED THE REVISED RETURN OF INCOME CLAIMING EXEMPTION OF LONG TERM CAPITAL GAIN U/S 10(38) OF THE ACT. THE CIT(A) RELIED ON THE DECISION OF THE HONBLE SUPREM E COURT IN THE CASE OF GOETZE (INDIA) LTD VS CIT 284 ITR 323 (SC) AND WAS OF THE VIEW THAT THE ASSESSEE CANNOT MAKE A CLAIM WHICH IS NOT SUPPORTED BY A REVISED RE TURN OF INCOME. HE THEREFORE HELD THAT THE AO RIGHTLY DISMISSED THE APPLICATION OF TH E ASSESSEE U/S 154 OF THE ACT. 5. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE HA S PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 6. I HAVE HEARD THE RIVAL SUBMISSIONS. THE CBDT CIR CULAR NO.14 OF 1955 DATED 11.04.1955 HAS TAKEN A VIEW THAT THE OFFICERS OF TH E DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF THE ASSESSEE ABOUT HIS RI GHTS AND IT IS THEIR DUTY TO ASSIST THE TAX PAYER IN EVERY REASONABLE WAY PARTICULARLY IN T HE MATTER OF CLAIMING AND SECURING RELIEFS. IN MY VIEW THEREFORE THE REVENUE AUTHORITI ES OUGHT NOT TO HAVE REJECTED THE APPLICATION U/S 154 OF THE ACT ON THE GROUND THAT T HE ASSESSEE HAS NOT FILED THE REVISED RETURN OF INCOME. THE CIT(A) HAS PLACED RELIANCE ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. (SU PRA) FOR SUSTAINING THE ORDER OF THE AO U/S 154 OF THE ACT. THE HONBLE SUPREME COURT IN ITS DECISION RENDERED IN THE CASE OF GOETZE (INDIA) LTD VS CIT HAS CLARIFIED THA T THE APPELLATE AUTHORITIES UNDER THE ACT HAVE THE POWER TO CONSIDER THE CLAIM EVEN IF TH E BUSINESS OF THE REVISED RETURN OF INCOME. IN MY VIEW, THEREFORE, THE CLAIM OF THE ASS ESSEE THAT LONG TERM CAPITAL GAIN IS EXEMPT U/S 10(38) OF THE ACT HAS TO BE EXAMINED BY THE AO. IT IS SEEN FROM THE ORDER OF AO U/S 154 OF THE ACT THAT THE AO WANTED D ETAILS OF ACQUISITION AND PROOF OF PAYMENT OF STT. I THEREFORE SET ASIDE THE ORDER OF CIT(A) AND REMAND THE QUESTION OF EXEMPTION OF LONG TERM CAPITAL GAIN U/S 10(38) OF T HE ACT TO THE AO FOR FRESH CONSIDERATION. THE ASSESSEE IS DIRECTED TO FILE NEC ESSARY EVIDENCES BEFORE THE AO TO SUBSTANTIATE HIS CLAIM. ITA NO.512/KOL/2015 MADHABI NAG. A.YR.2008-09 3 7. IN THE RESULT THE APPEAL OF THE ASSESSEE IS TREA TED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 09.12.2015. SD/- [N.V.VASUDEVAN] JUDICIAL MEMBER DATE: 09.12.2015. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. MADHABI NAG, VILL + P.O. BELIATORE, BANKURA-7222 03. 2 THE A.C.I.T., CIRCLE-1, ASANSOL. 3. THE CIT-ASANSOL. 4. T HE CIT(A)-ASANSOL. 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES