DCIT CIR 6(2)(2), MUMBAI V. DOMEX TECHNICAL INFORMATION P.LTD, MUMBAI

ITA 5522/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8348 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-11-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Revised return
• Section: 10; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI D.T. GARASIA (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) ITA NO. 5522/MUM/2015 ASSESSMENT YEAR: 2008 - 09 DCIT - 6(2)(2) R OOM NO. 563, AAYAKAR BHAVAN, M.K. ROAD, CHURCHGATE, MUMBAI - 400020. VS. M/S DOMEX TECHNICAL INFORMATION PVT. LTD. KANCHAN VILLA, 3 RD FLOOR, DADAR (W) , MUMBAI - 400028. PAN NO. AAACD5680Q APPELLANT RESPONDENT REVENUE BY : MR. PURUSHOTTAM KUMAR, DR ASSESSEE BY : MR. NITESH JOSHI , AR DATE OF HEARING : 14/09/2017 DATE OF PRONOUNCEMENT : 29/11/2017 ORDER PER N.K. PRADHAN, A.M. THIS IS AN APPEAL FILED BY THE REVENUE. THE RELEVANT ASSESSM ENT YEAR IS 2008 - 09 . THE APPEAL IS DIRECTED AGAINST THE ORDER OF THE COMMISS IONER OF INCOME TAX (APPEALS) - 12 , MUMBAI AND ARISES OUT OF THE ASSESSMENT COMPLETED U/S 154 OF THE INCOME TAX ACT 1961, (THE ACT). 2. THE GROUND S RAISED BY THE REVENUE IN THIS APPEA L ARE (I) T HE LD. CIT(A) ERRED IN ALLOWING ASSESSEES APPEAL WITHOUT CONSIDERING THE DECISION IN CASE OF GOETZE (INDIA) LTD AND PRUTHVI BROKERS & SHAREHOLDERS M/S DOMEX TECHNICAL INFORMATION PVT. LTD. ITA NO. 5522/MUM/2015 2 (P) LTD. , BOTH HOLD ING THAT THE ASSESSING OFFICER CANNOT ENTERTAIN SUCH CLAIMS WHICH WERE NOT MAD E IN ORIGINAL OR REVISED RETURN, (II) THE LD. CIT(A) ERRED IN ALLOWING ASSESSEES APPEAL RELYING ON THE DECISION OF PRUTHVI BROKERS & SHAREHOLDERS (P) LTD . HOLD ING THAT APPELLATE AUTHORITY IS EMPOWERED TO ENTERTAIN FRESH CLAI M NOT MADE IN RETURN OF INCOME AND (III) THE LD. CIT(A) ERRED IN NOT GIVING OPPORTUNITY TO AO UNDER RULE 46A . 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A.Y. 2008 - 09 ON 13.08.2008 SHOWING TOTAL INCOME OF RS. 95,16,800/ - . IT HAD DISCLOSED RS.44,29,039/ - AS ITS DIVIDEND INCOME CLAIMING THE SAME AS EXEMPT U/S 10 IN SCHEDULE E1. HOWEVER, THE SAME AMOUNT WAS WRONGLY SHOWN AS GROSS DIVIDEND IN SCHEDULE OS UNDER THE HEAD INCOME FROM OTHER SOURCES. THE ASSESSEE HAD SHOWN THE ABOVE INCOME OF RS.44,29,039/ - IN ITS RETURN OF INCOME. THE LD. CIT(A) OBSERVED THAT T HIS BEING THE FIRST YEAR OF THE ASSESSEE FILING ITS RETURN OF INCOME ELECTRONICALLY, A SOFTWARE GLITCH AND A BONA FIDE ERROR HAS CREPT IN. THE AO HAS PASSED AN ORDER U/S 154 ST ATING THAT THE ERROR CANNOT BE RECTIFIED IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZ INDIA . THE LD. CIT(A) FOLLOWING THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN PRUTHVI BROKERS & SHAREHOLDERS (P) LTD HELD THAT (I) THE DIVIDEND INCOME OF RS.44,29,039/ - FROM EQUITY ORIENTED MUTUAL FUND IS EXEMPT U/S 10, (II) LONG TERM CAPITAL GAIN (LTCG) OF RS.11,05,86 7/ - IS EXEMPT U/S 10 AND (III) S HORT T ERMS C APITAL G AINS OF RS.36,26,444/ - IS TAXABLE AT CONCESSIONAL RATE OF 10%. M/S DOMEX TECHNICAL INFORMATION PVT. LTD. ITA NO. 5522/MUM/2015 3 TH E LD. CIT(A) FOLLOWING THE CIRCULAR NO. 14 ISSUED BY CBDT DIRECTED THE AO TO PASS AN ORDER ACCORDINGLY. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. NOW WE ADVERT TO THE DECISION RELIED ON BY THE LEARNED DR. IN GOE TZE (INDIA) LTD. VS CIT (2006) 157 TAXMAN 1 (SC) , IT HAS BEEN HELD THAT THE ASSESSEE CANNOT AMEND A RETURN FILED BY HIM BEFORE THE AO FOR MAKING A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. IN CIT VS. PRUTHVI BROKERS & SHAREHOLDERS (P) LTD . (2012) 349 ITR 336 (BOM) , RELIED ON BY THE LD. COUNSEL OF THE ASSESSEE, THE HONBLE BOMBAY HIGH COURT HELD : THUS, IT IS CLEAR THAT THE SUPREME COURT DID NOT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGEMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSING OFFICER, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGEMENT. IN FACT THE SUPREME COUR T MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGEMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER SECTION 254. 5. THUS THE LD. CIT(A) HAS RIGHTLY ADMITTED SUCH A CLAIM OF THE ASSESSEE. 6. HOWEVER, AS PER RULE 46A(3) OF INCOME TAX RULES 1962 , THE LD. CIT(A) SHOULD HAVE GIVEN A REASONABLE OPPORTUNITY TO THE AO TO EXAMINE THE RELEVANT EVIDENCE/DOCUMENT. SHE HAS FORGOTTEN TO DO SO. M/S DOMEX TECHNICAL INFORMATION PVT. LTD. ITA NO. 5522/MUM/2015 4 7. IN VIEW OF THE ABOVE, WE SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE AO TO DECIDE THE ISSUE AFRESH AFTER EXAMINING THE SAID CLAIM MADE BY THE ASSESSEE. WE DIRECT THE ASSESSEE TO FILE THE RELEVANT DOCUMENTS/EVIDENCE BEFORE THE AO. NEEDLESS TO SAY , THE AO WOULD GIVE REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE 8. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 29/11/2017. SD/ - SD/ - (D.T. GARASIA) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 29/11/2017 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI