Shri Sunderlal Raichand Shah, Surat V. ACIT, Vapi Circle, Vapi

ITA 556/SRT/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0790 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 10 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 14-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Assessee Lawyers: RAJESH UP A DHYAY ITP
• Keywords: Rectification of order; TDS; FORM 26AS
• Section: 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM ./ITA NO.556/SRT/2018 ( [ [ / ASSESSMENT YEAR: (2009-10) (VIRTUAL COURT HEARING) SHRI SUNDERLAL RAICHAND SHAH, 503A, PRAMUKH HILLS, CHARVADA VAPI ROAD, CHARVADA, VAPI 396 195. V S. THE ASSISTANT COMMISSIONER OF INCOME TAX, VAPI CIRCLE, VAPI - 396191. ./ ./ PAN/GIR NO.: AHPPS 9336 R (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI RAJESH UPADHYAY - ITP RESPONDENT BY : MS.ANUPAMA SINGLA SR.DR / DATE OF HEARING : 02/07/2021 /DATE OF PRONOUNCEMENT : 12/07/2021 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: CAPTIONED APPEAL FILED BY ASSESSEE PERTAINING TO ASSESSMENT YEAR 2009-10 IS DIRECTED AGAINST THE ORDER PASSED BY THE LD.COMMISSIONER OF INCOME TAX(APPEALS), VALSAD, [LD.CIT(A)], DATED 11.06.2018. 2. AT THE OUTSET ITSELF, SHRI RAJESH UPADHYAY, LD.COUNSEL FOR THE ASSESSEE SUBMITS THAT ASSESSEE HAS NOT CLAIMED TAX DEDUCTION AT SOURCE(TDS) IN THE ORIGINAL RETURN OF INCOME, SO THE LD.ASSESSING OFFICER WAS NOT EMPOWERED TO GIVE CREDIT OF PAGE | 2 ITA NO.556/SRT/2017 FOR A.Y. 2009-10 SHRI SUNDERLAL R.SHAH TDS CLAIMED BY WAY OF LETTER BEFORE THE LD.ASSESSING OFFICER. THE LD.CIT(A) AFFIRMED THE ORDER OF THE LD.ASSESSING OFFICER STATING THAT THERE IS NO MISTAKE APPARENT FROM RECORD. BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE IN HIS ALTERNATIVE SUBMISSION, STATES THAT BEING APPELLATE AUTHORITY, THE TRIBUNAL MAY TREAT THE APPLICATION OF ASSESSEE AS ADDITIONAL CLAIM, BY WAY OF ADDITIONAL GROUND. THE FACTS RELATED TO ADJUDICATION OF ADDITIONAL CLAIM AND ADDITIONAL GROUND OF APPEAL ARE AVAILABLE BEFORE THE LD.ASSESSING OFFICER. 3. THE LD.DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE SUBMITS BEFORE US THAT ASSESSEE HAS NOT CLAIMED THE TDS IN THE ORIGINAL RETURN OF INCOME, THEREFORE, THE ASSESSEE WAS PROHIBITED FOR RAISING DEMAND FOR REFUND OF TDS DURING THE ASSESSMENT PROCEEDINGS. ON THE ALTERNATIVE SUBMISSION, THE LD.DEPARTMENTAL REPRESENTATIVE SUBMITS THAT IN CASE, THE ADDITIONAL CLAIM, BY ADDITIONAL GROUND OF APPEAL IS ACCEPTED, THEN IN THAT SITUATION THE MATTER MAY BE RESTORED BACK TO THE FILE OF THE LD.ASSESSING OFFICER FOR VERIFICATION OF FACTS AND TO CONSIDER THE ISSUE IN ACCORDANCE OF LAW. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THERE IS ONLY ONE GROUND REGARDING NOT ALLOWING CREDIT OF RS. 1,50,000/- BEING SELF ASSESSMENT TAX PAID BY THE ASSESSEE ON 31/08/2009, WHICH IS ALSO APPEARING IN FORM 26AS FOR AY 2009-10. THE SAID CREDIT IS NOT ALLOWED BY THE ASSESSING OFFICER (AO) BECAUSE, IT WAS NOT CLAIMED IN RETURN OF INCOME (ROI) FILLED BY THE ASSESSEE. WE NOTE THAT LD. CIT(A) HAS ALSO NOT DIRECTED THE AO TO ALLOW SUCH CREDIT BECAUSE IT WAS A MISTAKE IN AO'S ORDER U/S 154 DATED 18/10/2016 AND HE WAS PAGE | 3 ITA NO.556/SRT/2017 FOR A.Y. 2009-10 SHRI SUNDERLAL R.SHAH DECIDING APPEAL AGAINST THE SECOND RECTIFICATION ORDER DATED 09/05/2017. THERE WAS NO MISTAKE IN THE SAID ORDER, THEREFORE, LD CIT(A) HAS DIRECTED THE ASSESSEE TO APPROACH CONCERNED PCIT IN VIEW OF CBDT CIRCULAR NO. 09/2015(F.NO. 312/22/2015-OT), DATED 09/06/2015. 5. THE LD COUNSEL FOR THE ASSESSEE HAS SUBMITTED BEFORE US WRITTEN SUBMISSIONS NARRATING THE FACTS AND EVENTS, WHICH IS REPRODUCED BELOW: I. IN THIS CASE THE ASSESSEE HAS FILLED THE RETURN U/S 139 ON 30/09/2009, IN WHICH HE CLAIMED REFUND OF RS. 53,760/-. PAPER BOOK PAGE NO. 3. II. NEITHER ASSESSMENT ORDER NOR INTIMATION WAS RECEIVED THEREAFTER. BUT, A RECOVERY LETTER DATED 03/02/2014 WAS RECEIVED FOR COLLECTION OF ARREAR DEMAND OF AY 2009- 10 AT RS. 3,54,960/-. PAPER BOOK PAGE NO. 6. III. ON TELEPHONIC COMMUNICATION, THE ASSESSEE WAS INFORMED BY CPC BANGLORE TO MAKE REQUEST TO THE JURISDICTIONAL 1TO FOR COPY OF ASSESSMENT ORDER U/S 143(L)(A) OF THE ACT. IV. ACCORDINGLY, THE ASSESSEE HAS MADE REQUEST TO THE AO FOR ISSUE OF AN ORDER U/S 143(L)(A) OF THE ACT WIDE APPLICATION DATED 11/05/2015. PAPER BOOK PAGE NO. 7. THE AO HAS NOT ISSUED ANY ORDER BUT 'TAX & COMPUTATION SHEET' WAS MADE AVAILABLE TO THE ASSESSEE, SOMEWHERE IN MARCH,2016. PAPER BOOK PAGE NO. 8. V. THE ASSESSEE HAS FILLED ONLINE RECTIFICATION APPLICATION ON 13/03/2016 WIDE TRANSACTION ID NO. 2968283348. HE ISSUED REFUND OF RS. 64,520/- ON 25/10/2016 WHEREIN AN INTEREST OF RS. 10,760/- WAS INCLUDED. PAPER BOOK PAGE NO. 15. AGAIN THE ASSESSEE IS NOT ISSUED ANY RECTIFICATION ORDER DATED 18/10/2016 WHICH INDICATED BY THE LD. CIT(A) IN HIS APPELLATE ORDER. VI. AS THE CREDIT OF SELF ASSESSMENT TAX OF RS. 1,50,000/- WAS NOT ALLOWED, THE ASSESSEE HAS FILLED RECTIFICATION APPLICATION DATED 11/01/2017, WHICH WAS PLACED IN AO'S OFFICE ON 13/01/2017. PAPER BOOK PAGE NO. 9 & 10. IT IS TRUE THAT THE AO WAS NOT EMPOWERED TO ALLOW ANY CLAIM WHICH WAS NOT MADE THROUGH A RETURN OF INCOME. HOWEVER, CIT(A) IS EMPOWERED TO ENTERTAIN SUCH CLAIM. THE ISSUE IS CONSIDERED BY HONORABLE ITAT RAIPUR BENCH IN AMITKUMAR BANSAL VS. ITO, ITA NO. 130/RPR/2013. COPY OF FULL ORDER PLACED AT PAGE NO. 24 TO 30 OF PAPER BOOK. RELEVANT PARA IS PARA 18 ON PAGE NO. 13. FURTHER, THERE IS A CBDT CIRCULAR NO. 14(XL-35) DATED 11/04/1955 IS ALSO PLACED AT PAGE NO. 31. FURTHER, WHEN RECTIFICATION ORDER DATED PAGE | 4 ITA NO.556/SRT/2017 FOR A.Y. 2009-10 SHRI SUNDERLAL R.SHAH 18/10/2016 WAS NOT RECEIVED BY THE ASSESSEE, IT WAS NOT POSSIBLE FOR HIM TO FILE APPEAL AS DESIRED BY THE CIT(A). SECONDLY, WHEN THERE IS NO DISPUTE REGARDING PAYMENT OF RS. 1,50,000/- BEING SELF ASSESSMENT TAX, ASSESSEE'S CLAIM CANNOT BE REFUSED MERELY ON HYPER TECHNICAL GROUNDS. IN VIEW OF ABOVE SUBMISSION, YOUR HONORS ARE PRAYED TO DIRECT THE AO TO ALLOW CREDIT OF RS. 1,50,000/- BEING SELF ASSESSMENT TAX PAID BY THE ASSESSEE ON 31/08/2009 FOR AY 2009- 10. HE MAY VERIFY SUCH PAYMENT FROM FORM 26AS FOR AY 2009-10. 6. IT IS ABUNDANTLY CLEAR FROM THE ABOVE SUBMISSIONS OF THE LD COUNSEL THAT ASSESSING OFFICER HAS NOT ALLOWED CREDIT OF RS. 1,50,000/-. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO EXAMINE THE ASSESSEE`S FACTS AND ALLOW THE CREDIT OF RS. 1,50,000/- BEING SELF ASSESSMENT TAX PAID BY THE ASSESSEE ON 31/08/2009 FOR AY 2009-10, IN ACCORDANCE WITH LAW. 7.IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED ON 12/07/2021 BY PLACING RESULT ON NOTICE BOARD. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT / / DATE: 12/07/2021 / SGR COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT