Sh. Jasjeet Singh Dhaliwal, Bathinda V. The Income tax Officer, Bathinda

ITA 547/ASR/2013

• Counselvise Citation: 54720914 RSA 2013
• Duration Of Justice: 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-09-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-09-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 23-08-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: ADARSH PAUL GUPTA
• Keywords: Opportunity of being heard; Bonafide belief; Condonation of delay
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AFYPD0290C SH. JASJEET SINGH DHALIWAL VS. INCOME TAX OFFICER , C-8, CIVIL LINES, BATHINDA WARD-1(1), BATHINDA (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ADARSH PAUL GUPTA, ADVOCATE RESPONDENT BY: SH. AMRIK CHAND, DR DATE OF HEARING: 20.09.2013 DATE OF PRONOUNCEMENT: 20.09.2013 ORDER 1) THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE IMPUGNED ORDER DATED 16.05.2013 PASSED BY THE LEARNED CIT(A) , BATHINDA, ON THE FOLLOWING GROUNDS: I. THAT THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED ON FACTS AND IN LAW IN SUSTAINING THE ADDITION OF EXCESS TDS CLAIME D OF RS. 135720/-. II. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED ON FACTS ABOUT THE SHARE OF DEMISED LEASE PROPERTY. THE PROPERTY C ONSISTS OF TWO PARTIES HAVING 1 ST PARTY 42% SHARE AND SECOND PARTY 58% SHARE. THE ASSESSEE IS SECOND PARTY CONSISTING OF FOUR CO-OWNE R HAVING 14% SHARE OF THREE CO-OWNER EACH AND 16% SHARE OF 4 TH CO-OWNER AS PER RENT LEASE DEED. 2 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 III. THAT THE COMMISSIONER OF INCOME TAX(APPEALS) ERRED ON FACTS AND IN LAW IN OBSERVING THAT THE DECLARATION CONTAINING TH E NAME, ADDRESS, PAN OF THE PERSONS TO WHOM CREDIT IS TO BE GIVEN AN D REASONS FOR GIVING CREDIT TO SUCH PERSONS HAS NOT BEEN FURNISHE D WITH THE DEDUCTOR. IV. THAT THE COMMISSIONER OF INCOME TAX (APPEALS) FAILE D TO APPRECIATE THAT DEDUCTOR RECTIFIED HIS MISTAKE AND BY DEDUCTIN G TDS IN THE HAND OF FOUR CO-OWNERS IN SUBSEQUENT YEARS. V. WITHOUT PREJUDICE, THE COMMISSIONER OF INCOME TAX ( APPEALS) ERRED ON FACTS AND IN LAW IN NOT DIRECTING THE ASSESSING OFFICER TO GIVE CREDIT OF TDS IN CO-OWNERS HANDS AS PER LEASE DEED SHARE. 2) THE PRESENT APPEAL OF THE ASSESSEE IS TIME BARRE D BY FOUR DAYS. THE ASSESSEE HAS FILED THE APPLICATION DATED 22 ND AUGUST, 2013, WHICH WAS RECEIVED IN THIS OFFICE ON 26.08.2013, EXPLAINI NG THE FOLLOWING REASONS FOR THE DELAY OF FOUR DAYS IN FILING THE PR ESENT APPEAL: THE DUE DATE OF FILING SAID APPEAL FALLS ON 20 TH AUGUST, 2013. THE UNDERSIGNED COUNSEL FOR THE ASSESSEE HAS DULY FILED THE SAID APPEAL ON 6 TH AUGUST, 2013 THROUGH DTDC COURIER VIDE ACKNOWLEDGE MENT ON Z02936182, THE COPY OF SAID ACKNOWLEDGEMENT ALONGWI TH COPY OF ENVELOPE IS ENCLOSED FOR YOUR VERIFICATION. ON 21 ST AUGUST, 2013, THE SAID COURIER HAS BEEN REVERTED B ACK WITH THE OBJECTION OF (N/RECEIVED AT 2.00 P.M. ON 8 TH AUGUST, 2013), AFTER RECEIVING THIS RETURNED ENVELOP, I CONTACTED THE CO NCERNED DTDC STAFF AND PULL HIM BADLY BUT THEY TOLD ME THAT IT HAS BEE N REFUSED BY THE I.T.A.T. OFFICE. UNDER THESE CIRCUMSTANCES AND BONAFIDE BELIEF, I TO DAY AGAIN SENT THE APPEAL THROUGH REGISTERED POST VIDE ACKNOWLEDGEMENT NO- EP178049724IN IN VIEW OF THE ABOVE FACTS, KINDLY CONDONE THE DELA Y AND ENTERTAIN THE APPEAL. 3) AFTER GOING THROUGH THE REASONS MENTIONED BY THE ASSESSEE FOR CONDONATION OF DELAY OF FOUR DAYS, IN MY VIEW THERE IS SUFFICIENT REASON 3 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 TO CONDONE THE DELAY. ACCORDINGLY, I CONDONE THE DE LAY OF FOUR DAYS IN FILLING THE PRESENT APPEAL AND ADMIT THE APPEAL FOR HEARING. 4) ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DISPUTE ON 17.03.2010, DECLARING AN INCOME OF RS . 3,42,645/-, WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TA X ACT, 1961 (IN SHORT THE ACT) ON 26.03.2011. THE ASSESSING OFFIC ER EXAMINED THE RETURN FILED BY THE ASSESSEE WHICH REVEALED THAT TH E ASSESSEE HAS CLAIMED CREDIT OF TDS AT RS. 1,80,960/-. THIS TDS HAS BEEN DEDUCED ON RENTAL INCOME RECEIVED BY THE ASSESSEE AMOUNTING TO RS. 11 ,71,249/-. THE ASSESSEE HAS DECLARED RENTAL INCOME ONLY AT RS. 2,9 2,812/- I.E.1/4 TH OF THE RENTAL INCOME. THE ASSESSEE WAS ELIGIBLE TO CLAIM O NLY 1/4 TH OF THE TDS I.E. RS. 45,240/- OUT OF THE TOTAL AMOUNT OR RS. 1, 80,960/-. THE ASSESSING OFFICER IS OF THE VIEW THAT THE BALANCE CLAIM OF RS . 1,35,720/- WHICH HAS BEEN WRONGLY ALLOWED TO THE ASSESSEE. HE ISSUED SHO W CAUSE NOTICE U/S 154 OF THE ACT TO THE ASSESSEE ASKING HIM TO EXPLAI N WHY THE AMOUNT OF TDS AT RS. 1,35,720/- WRONGLY CLAIMED AND ALLOWED T O HIM MAY NOT BE DISALLOWED. IN RESPONSE TO THE SAME, THE ASSESSEE F ILED HIS REPLY ON 16.09.2011, IN WHICH HE HAS STATED THAT HE IS THE O WNER OF 1/4 TH OF THE SHOPPING COMPLEX LET-OUT. THE ASSESSEE FURTHER STAT ED THAT HE HAS CLAIMED CREDIT OF TDS AS PER RULE 37BA AND SECTION 199 OF T HE ACT. THE 4 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 ASSESSING OFFICER CONSIDERED THE CONTENTION OF THE ASSESSEE AND FOUND THE CONTENTION OF THE ASSESSEE THAT THE CLAIM IS IN ACC ORDANCE WITH RULE 37BA AND SECTION 199 OF THE ACT IS INCORRECT AND HELD TH AT AS PER SECTION 199, ANY DEDUCTION MADE IN ACCORDANCE WITH THE AFORESAID PROVISION OF THIS CHAPTER AND PAID TO THE CENTRAL GOVERNMENT SHALL BE TREATED AS A PAYMENT OF TAX ON BEHALF OF THE PERSON FROM WHOSE INCOME TH E DEDUCTION WAS MADE. FURTHER, RULE 37BA CLEARLY PROVIDES THAT THE CREDIT OF TDS SHALL BE GIVEN TO THE PERSON TO WHOM PAYMENT HAS BEEN MADE O R CREDIT HAS BEEN GIVEN ON THE BASIS OF INFORMATION FURNISHED BY THE DEDUCTOR TO THE INCOME TAX AUTHORITIES. THE ASSESSING OFFICER FINALLY HELD THAT THE CREDIT OF TDS AMOUNTING TO RS. 1,35,720/- HAS WRONGLY BEEN ALLOWE D VIDE THIS OFFICE ORDER UNDER SECTION 143(1) OF THE ACT, DATED 26.03. 2011 AND THIS MISTAKE IS APPARENT FROM RECORD AND THE SAME IS RECTIFIED. THE ASSESSING OFFICER, VIDE ORDER DATED 14.10.2011 UNDER SECTION 154 OF TH E ACT, CALCULATED THE INCOME OF ASSESSEE AND TAX PAYABLE, WHICH ARE AS UN DER: TOTAL INCOME AS DECLARED 3,42,650/- TAX PAYABLE 24,235/- TDS CREDIT TO BE ALLOWED 70,854/- 5) AGGRIEVED BY THE SAME, THE ASSESSEE FILED THE AP PEAL BEFORE THE LEARNED FIRST APPELLATE AUTHORITY WHO VIDE IMPUGNED ORDER DATED 16.05.2013, DISMISSED THE APPEAL OF THE ASSESSEE AN D UPHELD THE ORDER OF 5 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 ASSESSING OFFICER PASSED UNDER SECTION 154 OF THE A CT, DATED 14.10.2011. NOW, THE ASSESSEE AGAIN FILED THE PRESENT APPEAL ON 23.08.2013 AFTER BEING AGGRIEVED BY THE IMPUGNED ORDER DATED 16.05.2 013, WHICH CAME UP FOR HEARING TODAY I.E. 20.09.2013. 6) LEARNED COUNSEL FOR THE ASSESSEE DREW MY ATTENTI ON TOWARDS THE IMPUGNED ORDER PASSED BY LEARNED FIRST APPELLATE AU THORITY; SMALL PAPER BOOK CONTAINING PAGES 1 TO 8, IN WHICH HE HAS ATTAC HED LETTER DATED MAY 8, 2009, WRITTEN TO MR. NEERAJ KUMAR, DEPT. OF LEGA L CELL, PLANET RETAIL HOLDING PVT. LTD., GURGAON, REGARDING ISSUE OF RENT PAID CHEQUES IN THE NAME OF FOUR PERSONS CO-OWNER OF THE ELITES ARCADE LUDHIANA PREMISES SEPARATELY FROM 1 ST APRIL, 2009 ONWARDS ALONG WITH RECEIPTS OF MAIL; A ND FORM NO. 16A EACH OF JAGJIT SINGH DHALIWAL, JASJEE T SINGH DHALIWAL, JAI INDER KAUR & THANESHWAR KAUR FOR THE PERIOD 1 ST APRIL, 2009 TO 31 ST MARCH, 2010. HE, MAINLY, REQUESTED THAT THE ASSESSE E HAS FILED ALL NECESSARY DOCUMENTS/EVIDENCES BEFORE THE REVENUE AU THORITIES BUT THESE DOCUMENTS/EVIDENCES HAVE NOT BEEN CONSIDERED BY THE AUTHORITIES BELOW AND THEY HAVE PASSED THE ORDERS AGAINST THE ASSESSE E, WHICH IS CONTRARY TO THE LAW AND FACTS ON THE FILE. THEREFORE, HE REQUES TED THAT THE IMPUGNED ORDER PASSED BY LEARNED FIRST APPELLATE AUTHORITY M AY BE CANCELLED. 6 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 7) ON THE CONTRARY, LEARNED DR CONTROVERTED THE ARG UMENT ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE AN D RELIED UPON THE ORDERS PASSED BY THE REVENUE AUTHORITIES. 8) AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE REVENUE AUTHORITIES ALONG WITH THE DOCUMENTARY EVIDENCES FILED BY LEARNED COUNSEL FOR THE ASSESSEE IN THE FORM OF SMA LL PAPER BOOK, I AM OF THE CONSIDERED VIEW THAT THE REVENUE AUTHORITIES HA VE NOT COMMENTED UPON THESE DOCUMENTS/EVIDENCES PRODUCED BY THE ASSE SSEE BEFORE THEM. KEEPING IN VIEW THE STATEMENT MADE BY LEARNED COUNS EL FOR THE ASSESSEE THAT THE ASSESSEE HAS PRODUCED ALL NECESSARY DOCUME NTS/EVIDENCES BEFORE THE REVENUE AUTHORITIES, IN THE INTEREST OF JUSTICE , I AM OF THE CONSIDERED VIEW THAT THE REVENUE AUTHORITIES HAVE PASSED THE O RDERS WITHOUT APPRECIATING THE EVIDENCES, AS STATED ABOVE. LEARNE D FIRST APPELLATE AUTHORITY HAS ALSO NOT COMMENTED UPON ANY EVIDENCES PRODUCED BY THE ASSESSEE BUT IN THE CONCLUDING PARA, HE HAS HELD TH AT THE ASSESSEE HAS NOT ADDUCED ANY EVIDENCE TO SHOW THAT DECLARATION CONTA INING THE NAME ADDRESS, PAN OF THE PERSONS TO WHOM CREDIT IS TO BE GIVEN AND REASONS FOR GIVING TO SUCH PERSONS HAS BEEN FURNISHED WITH THE DEDUCTOR. IN MY VIEW THE FINDING GIVEN BY THE LEARNED FIRST APPELLA TE AUTHORITY IS CONTRARY TO THE STATEMENT MADE BY LEARNED COUNSEL F OR THE ASSESSEE. THE 7 I.T.A. NO. 547(ASR)/2013 ASSESSMENT YEAR: 2009-10 ISSUE IN DISPUTE REQUIRES THOROUGH EXAMINATION AS W ELL AS APPRECIATION OF EVIDENCES PRODUCED BY THE ASSESSEE AT THE LEVEL OF ASSESSING OFFICER. ACCORDINGLY, IN THE INTEREST OF JUSTICE, THE ISSUE IN DISPUTE IS SET ASIDE TO THE FILE OF ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME AFRESH UNDER THE LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND ALSO APPRECIATE THE EVIDENCES, IF ALREADY PRODU CED BY THE ASSESSEE. 9) IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH SEPTEMBER, 2013 SD/./- (H.S. SIDHU) JUDICIAL MEMBER DATED: 20 TH SEPTEMBER, 2013 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: SH. JASJEET SINGH DHALIWAL C-8, CIVIL LINES, BATHINDA 2. INCOME TAX OFFICER, WARD-1(1), BATHINDA 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA 5. THE SR DR, I.T.A.T., ASR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.