Smt Joshiba Joseph, Kolkata V. ITO, WD-3(4), PORT BLAIR,

ITA 597/KOL/2015

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 1624 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 3 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 12-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHANKAR HALDER SRDR
• Assessee Lawyers: ARVIND AGARWAL
• Keywords: Competent authority

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH (A), KOLKATA [ BEFORE SHRI P.M. JAGTAP, VICE PRESIDENT (KZ) & SHRI S.S. VISWANETHRA RAVI, JM ] I.T.A. NO. 597/KOL/2015 ASSESSMENT YEAR: 2010-11 SMT. JOSHIBA JOSEPH.............................................................................APPELLANT G.P. AGRAWAL & ASSOCIATES, 7A, KIRAN SHANKAR ROY ROAD, KOLKATA 700 001. [PAN: AEHPJ 1732 K] VS ITO, WARD 3(4), PORT BLAIR...........................RESPONDENT ANDAMAN & NICOBAR ISLANDS 744 304. APPEARANCES BY: SHRI ARVIND AGARWAL, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE. SHRI SHANKAR HALDER, SR. DR, JCIT APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : AUGUST 07, 2019 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 06, 2019 ORDER PER P.M. JAGTAP, VICE-PRESIDENT (KZ) THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) 1, KOLKATA DATED 23.01.2015 AND THE SOLITARY ISSUE INVOLVED THEREIN RELATES TO THE DISALLOWANCE OF RS. 90,75,362/- MADE BY THE AO AND CONFIRMED BY THE LD. CIT(A) ON ACCOUNT OF ASSESSEES CLAIM FOR EXEMPTION U/S 10(26) OF THE INCOME TAX ACT, 1961. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO FILED HER RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION ON 15.10.2010 DECLARING A TOTAL INCOME OF RS. 7,68,260/-. IN THE SAID RETURN, EXEMPTION OF RS. 90,75,362/- WAS CLAIMED BY THE ASSESSEE U/S 10(26) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 10(26) WAS EXAMINED BY THE AO AND ON SUCH EXAMINATION, HE FOUND THAT EVEN THOUGH THE ASSESSEE WAS A PERSON OF A SCHEDULED TRIBE, SHE WAS NOT RESIDING IN THE REGIONS 2 I.T.A. NO. 597/KOL/2015 ASSESSMENT YEAR: 2010-11 SMT. JOSHIBA JOSEPH MENTIONED IN THE RELEVANT PROVISIONS OF THE INCOME TAX ACT, 1961. ACCORDINGLY, THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 10(26) WAS DISALLOWED BY THE AO AFTER DISCUSSING THE RELEVANT ASPECTS IN THE ASSESSMENT ORDER AS UNDER: AS THE MATTER WAS DISCUSSED WITH A/R OF THE ASSESSEE AS A DOUBTFUL CASE TO GET EXEMPTION U/S 10(26) OF THE I.T. ACT 196I, ASSESSEE PREFERRED DIRECTION U/S 144A, BY LD. ADDL. C.I. T. RANGE-3/KOLKATA. LD. ADDL. C.I.T. RANGE-3/KOLKATA ASKED THE UNDERSIGNED VIDE LETTER NO: ADDL. CIT/R- 3/KO1/MISC./2012-13/1753 DATED 15/10/2012 TO SUBMIT A REPORT, THE REPORT WAS SUBMITTED TO THE LD. ADDL. C.I.T. RANGE-3/KOLKATA WITH CONCLUSION THAT PRIMA FACIE IT APPEARS THAT SHE SHOULD GET THE EXEMPTION U/S 10(26) OF THE I.T. ACT, 196I, BUT IN THE I. T. ACT, 196I, NOWHERE IT IS MENTIONED THAT SCHEDULE TRIBES OF ANDAMAN & NICOBAR SHALL GET EXEMPTION U/S 10(26) OF THE I.T. ACT, 1961 VIDE LETTER NO: ITO/PORT BLAIR/144A/JOSHIBA/2012-13/792 DATED 06/11/2012. AGAIN LD. ADDL. C.I.T. RANGE-3/KOLKATA ASKED THE UNDERSIGNED VIDE LETTER NO. : ADDL. CIT/R-3/KOL/10(26)/2012-13/2019 DATED 15.11.2012 TO VERIFY WHETHER THE CONCERNED PERSON RESIDES IN ANY AREA SPECIFIED IN PART-I OR PART-II OF THE TABLE APPENDED TO PARAGRAPH 20 OF THE SIXTH SCHEDULE TO THE CONSTITUTION OF INDIA. TO VERIFY THIS, THE UNDERSIGNED SEEK INFORMATION FROM THE DIRECTOR, OFFICE OF DIRECTORATE OF TRIBAL WELFARE, ANDAMAN & NICOBAR ADMINISTRATION, PORT BLAIR, VIDE LETTER NO: ITO/PORT BLAIR/10(26)/ANI ADMN/2012-13/875 DATED 29/11/2012 STATING THE WHOLE FACT, THE INFORMATION ASKED FOR IS AS UNDER: I. PLEASE LET US KNOW THE AUTHENTICITY OF THE COPY OF NOTIFICATION DATED 19 TH JUNE STATING KAMORTA & KATCHAL AS NOTIFIED SCHEDULE TRIBE AREA (COPY ENCLOSED) SUBMITTED BY SMT. JOSHIBA JOSEPH. II. WHETHER KAMORTA AND KATCHAL COMES UNDER PARA 20 OF THE SIXTH SCHEDULE OF THE CONSTITUTION. III. WHETHER THE NOTIFICATION DATED 19 TH JUNE 1956 IS A VALID NOTIFICATION IN TERMS OF THE POWER CONFERRED UPON THE HONBLE GOVERNOR OF THE ANDAMAN & NICOBAR ISLAND. IV. ANY EXAMPLE OF INSERTION OR OMISSION OF ANY OTHER PLACE BY INVOKING THE POWER CONFERRED UPON THE HONBLE GOVERNOR OF THE STATE OR UNION TERRITORIES EXCEPT THE PART 1 AND PART 2 OF PARA 20 OF THE SIXTH SCHEDULE OF THE CONSTITUTION MAY BE CITED. SIR, YOUR REPLY IS AWAITED, THE CASE OF SMT. JOSHIBA JOSEPH IS UNDER SCRUTINY AND IT IS BARRED BY THE LIMITATION OF TIME BY 31 ST DECEMBER, 2012. 3 I.T.A. NO. 597/KOL/2015 ASSESSMENT YEAR: 2010-11 SMT. JOSHIBA JOSEPH TWO MORE REMINDERS ISSUED VIDE LETTER NO: ITO/PORT BLAIR/10(26)/ANI ADMN/2012-13/933 DATED 14.12.2012 & NO: ITO/PORT BLAIR/10(26)/ANI ADMN/2012-13/2030 DATED 31.01.2013 TO THE DIRECTOR, OFFICE OF DIRECTORATE OF TRIBAL WELFARE, ANDAMAN & NICOBAR ADMINISTRATION, PORT BLAIR AT LAST COPY OF THE LETTER ISSUED VIDE LETTER NO: ITO/PORT BLAIR/10(26)/ANI ADMN/2012-13/2013 DATED 31.01.2013 TO THE ASSESSEE TO PURSUE THE MATTER WITH THE DIRECTOR, OFFICE OF DIRECTORATE OF TRIBAL WELFARE, ANDAMAN & NICOBAR ADMINISTRATION, PORT BLAIR. BUT NO REPLY RECEIVED AT THIS END FROM THE OFFICE OF THE DIRECTOR, OFFICE OF DIRECTORATE OF TRIBAL WELFARE, ANDAMAN & NICOBAR ADMINISTRATION, PORT BLAIR, LASTLY A LIST AVAILABLE ON INTERNET DOWNLOAD AND AS PER LIST ASSESSEE IS NOT A RESIDENT OF THE AREA SPECIFIED IN PART-I OR PART-II OF THE TABLE APPENDED TO PARAGRAPH 20 OF THE SIXTH SCHEDULE OF THE CONSTITUTION OF INDIA. REPORT WAS SUBMITTED TO THE LD. ADDL. C.I.T. RANGE-3/KOLKATA THAT SCHEDULE TRIBES AREA OF ANDAMAN & NICOBAR DO NOT FALL UNDER SPECIFIED AREA IN PART-I OR PART-II OF THE TABLE APPENDED TO PARAGRAPH 20 OF THE SIXTH SCHEDULE OF THE CONSTITUTION OF INDIA VIDE LETTER NO: ITO/PORT BLAIR/144A/JOSHIBA/2012- 13/2145 DATED 25.02.2013. IN THIS CASE NO SPECIFIC DIRECTION GIVEN BY LD. ADDL. C.I.T. RANGE-3/KOLKATA TO THE UNDERSIGNED IN RELATION TO THE DIRECTION ASKED BY THE ASSESSEE U/S 144A. CONSIDERING THE ASSESSMENT IS BARRED BY LIMITATION OF TIME BY 31.03.2013 THE ORDER IS BEING PASSED IN ABSENCE OF THE REPLY FROM THE DIRECTOR, OFFICE OF DIRECTORATE OF TRIBAL WELFARE, ANDAMAN & NICOBAR ADMINISTRATION, PORT BLAIR BY DISALLOWING THE EXEMPTION CLAIMED U/S 10(26) OF THE I.T. ACT, 1961. 3. THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF HER CLAIM FOR EXEMPTION U/S 10(26) WAS CHALLENGED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT(A). DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), HER CLAIM FOR EXEMPTION U/S 10(26) WAS SUPPORTED AND SUBSTANTIATED BY THE ASSESSEE ON THE BASIS OF PROPOSAL FORWARDED BY THE ANDAMAN & NICOBAR ISLAND ADMINISTRATION TO THE GOVERNMENT OF INDIA FOR PROVIDING SUCH EXEMPTION TO THE TRIBES OF ANDAMAN & NICOBAR ISLAND. THE LD. CIT(A) HOWEVER FOUND THAT THE SAID PROPOSAL SENT BY THE ANDAMAN & NICOBAR ISLAND ADMINISTRATION WAS STILL PENDING AND THERE WAS NO NOTIFICATION ISSUED BY THE 4 I.T.A. NO. 597/KOL/2015 ASSESSMENT YEAR: 2010-11 SMT. JOSHIBA JOSEPH GOVERNMENT OF INDIA ACCEPTING THE SAME OR AMENDING THE PROVISIONS OF SECTION 10(26) OF THE INCOME TAX ACT, 1961. HE ACCORDINGLY CONFIRMED THE DISALLOWANCE MADE BY THE AO U/S 10(26) OF THE ACT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN REPLY TO A QUERY RAISED BY THE BENCH, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THE PROPOSAL SENT BY THE ANDAMAN & NICOBAR ISLAND ADMINISTRATION TO THE GOVERNMENT OF INDIA FOR PROVIDING EXEMPTION U/S 10(26) TO THE TRIBES OF ANDAMAN & NICOBAR ISLAND IS STILL PENDING WITH THE GOVERNMENT OF INDIA. IT IS THUS CLEAR THAT THE EXEMPTION AVAILABLE U/S 10(26) IS STILL NOT EXTENDED BY THE COMPETENT AUTHORITY TO THE TRIBES OF ANDAMAN & NICOBAR ISLAND SO FAR AND THE CLAIM OF THE ASSESSEE FOR EXEMPTION U/S 10(26), THEREFORE, CANNOT BE ALLOWED. WE THEREFORE, UPHOLD THE IMPUGNED ORDER PASSED BY THE LD. CIT(A) CONFIRMING THE DISALLOWANCE MADE BY THE AO FOR EXEMPTION U/S 10(26) OF THE ACT AND DISMISS THIS APPEAL OF THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH SEPTEMBER, 2019. SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER VICE PRESIDENT DATED: 06/09/2019 BISWAJIT, SR. PS 5 I.T.A. NO. 597/KOL/2015 ASSESSMENT YEAR: 2010-11 SMT. JOSHIBA JOSEPH COPY OF ORDER FORWARDED TO: 1. SMT. JOSHIBA JOSEPH, G.P. AGRAWAL & ASSOCIATES, 7A, KIRAN SHANKAR ROY ROAD, KOLKATA 700 001. 2. ITO, WARD 3(4), PORT BLAIR, ANDAMAN & NICOBAR ISLANDS 744 304. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, ASSISTANT REGISTRAR / H.O.O. ITAT, KOLKATA