Sohan Lal Sabharwal, New Delhi V. ACIT, New Delhi

ITA 5194/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53064 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 24-10-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 23-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MOHANTHY
• Assessee Lawyers: ANOOP MEHRA
• Keywords: Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) SMT. DIVA SINGH, JUDICIAL MEMBER AND BEFORE SHRI B.C. MEENA, ACCOUNTANT MEMBER ITA NO.5194/DEL./2010 (ASSESSMENT YEAR : 2007-08) SHRI SOHAN LAL SABHARWAL, VS. ACIT, CIRCLE 32 (1) , 34, SIDHARTHA ENCLAVE, NEW DELHI. NEW DELHI. (PAN : AQIPS6953J) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANOOP MEHRA, CA REVENUE BY : SHRI S. MOHANTHY, DR ORDER PER B.C. MEENA, ACCOUNTANT MEMBER : THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF TH E ORDER OF THE CIT (APPEALS)- XXVI, NEW DELHI DATED 15.09.2010 FOR THE ASSESSMENT YEAR 2007-08. THE GROUNDS OF APPEAL READ AS UNDER :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LEARNED CIT (A) HAS ERRED IN HOLDING THAT THE CLAIM OF TDS CANNOT BE ALLOWED IN VIEW OF THE PROVISIONS CONTAINED IN SECTION 239( 2)(C). 2. THAT THE LEARNED CIT (A) HAS ERRED ON THE FACTS AND IN LAW IN NOT ALLOWING THE CLAIM OF TDS AMOUNTING TO RS.1,04, 636/-, ALTHOUGH THE SAME IS REFLECTED IN 26AS AND THE CORRESPONDING INCOME WAS DULY DECLARED IN THE RETURN OF INCOME FILED. 3. THAT THE IMPUGNED APPELLATE ORDER IS BAD IN LAW AND THEREFORE, INVALID. ITA NO.5194/DEL./2010 2 4. THE APPELLANT CRAVE LEAVE TO ADD/ALTER ANY/ALL G ROUNDS OF APPEAL AT THE TIME OF HEARING OF THIS APPEAL PETITI ON. 2. THE ASSESSEE IS AN INDIVIDUAL. THE RETURN OF IN COME FILED FOR THE ASSESSMENT YEAR 2007-08 ON 31.07.2007 DECLARING INCOME AT RS.1 5,99,980/-. THE SAME WAS ACCEPTED AND AN INTIMATION U/S 143(1) WAS SENT. IN THE INTIMATION, A DEMAND OF RS.41,886/- WAS RAISED. SUBSEQUENTLY, THE ASSESSEE CLAIMED THAT THERE WAS AN INADVERTENT MISTAKE IN CLAIMING THE CREDIT OF TDS A ND AN APPLICATION U/S 154 WAS MOVED BEFORE THE ASSESSING OFFICER FOR GRANTING THE CREDIT FOR TAX DEDUCTED AT SOURCE. THE ASSESSING OFFICER REJECTED THE APPLICA TION FOR RECTIFICATION U/S 154. THE ASSESSEE FILED APPEAL BEFORE THE CIT (A). THE CIT (A) DISMISSED THE ASSESSEES APPEAL IN VIEW OF THE OVERRIDING PROVISIONS OF SECT ION239(2)(C) BY HOLDING THAT BY THESE PROVISIONS, THE ASSESSING OFFICER IS RESTRAIN ED FOR ALLOWING AN APPLICATION U/S 154 DATED 25.08.2009 WHICH ULTIMATELY RESULT IN A R EFUND. 3. WHILE PLEADING ON BEHALF OF THE ASSESSEE, THE LE ARNED AR SUBMITTED THAT THE ASSESSEE IS A SENIOR CITIZEN AND THE CIT (A) WAS NO T JUSTIFIED IN REJECTING THE ASSESSEES CLAIM FOR CREDIT FOR TDS. THE INCOME ON WHICH TAX WAS DEDUCTED HAS BEEN OFFERED IN THE RETURN OF INCOME. HOWEVER, DUE TO INADVERTENT MISTAKE, THE CLAIM FOR TDS WAS NOT MADE. HE PLEADED THAT A SENI OR CITIZEN SHOULD NOT BE PUNISHED FOR A SMALL INADVERTENT MISTAKE OCCURRED W HILE FILING THE RETURN OF INCOME. HE ALSO SUBMITTED THAT THE CIT (A) HAS DISMISSED TH E ASSESSEES APPEAL BY HOLDING THAT THE ASSESSEES APPLICATION DATED 25.08.2009 MA DE U/S 154 WOULD HAVE RESULTED INTO REFUND WHICH IS PROHIBITED BY THE PROVISIONS O F SECTION 239(2)(C) OF THE INCOME-TAX ACT AND THESE PROVISIONS ARE STRINGENT A ND DOES NOT PROVIDE FOR ITA NO.5194/DEL./2010 3 ALTERNATIVE REMEDY IN SUCH CASES INCLUDING FOR SEEK ING OF RELIEF BY WAY OF CONDONATION OF DELAY IN FILING THE CLAIM OF REFUND. HOWEVER, HE SUBMITTED THAT THE ASSESSEE HAS MADE AN APPLICATION FOR REFUND ON 25.0 9.2008 WHICH IS PLACED AT PAGE 14 OF THE PAPER BOOK FILED BY ASSESSEE. LD. AR ALS O PLEADED THAT THE SAME WAS ALSO AVAILABLE BEFORE THE CIT (A). CIT (A) HAS NOT MENT IONED ANYTHING IN THIS REGARD IN HER ORDER. SINCE THE ASSESSEE HAS CLAIMED THAT THI S APPLICATION FOR RECTIFICATION DATED 20.11.2008 FILED IN THE INCOME-TAX CIRCLE 32(1), NE W DELHI ON 25.11.2008 HAS NOT BEEN CONSIDERED BY THE CIT (A), IN OUR CONSIDERED V IEW, IT SHALL BE APPROPRIATE TO RESTORE THE APPEAL TO THE CIT (A) TO VERIFY THE REC ORDS AND DECIDE ON THE ISSUE. IF THIS APPLICATION U/S 154 IS FOUND IN ORDER THEN THE PROVISIONS OF SECTION 239(2)(C) SHALL NOT BE APPLICABLE. THEREFORE, WE RESTORE THE ISSUE TO THE FILE OF THE CIT (A) TO DECIDE THE ISSUE DE NOVO. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN OPEN COURT ON THIS 31 ST DAY OF OCTOBER, 2011. SD/- SD/- (DIVA SINGH) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 31 ST DAY OF OCTOBER, 2011 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT (A)-XXVI, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.