Shri Ram Tirth Pathak, Lucknow V. ITO IV(I), Lucknow

ITA 598/LKW/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8175 (ITAT-LUCKNOW)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 27-06-2012
• Assessment Year: misc
• Appeal Filed On: 10-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R K RAM
• Assessee Lawyers: J J MEHROTRA
• Keywords: Rectification of order; Bonafide belief; Revised return
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI MEHAR SI NGH , ACCOUNTANT MEMBER ITA NO. 598/LKW/2011 ASSESSMENT YEAR: 2007 - 08 RAM TIRATH PATHAK PROP. EX - SERVICEMAN CHEETAH SECUR ITY GUARDS SERVICES BLOCK A - 191, RAJAJIPURAM LUCKNOW V. INCOME TAX OFFICER IV(1) LUCKNOW PAN: AACFE0812A (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI. J. J. MEHROTRA, FCA RESPONDENT BY: SHRI. R. K. RAM, D.R. DATE OF HEARING: 27.06.2012 DATE OF PR ONOUNCEMENT: 22.08.2012 O R D E R PER S UNIL KUMAR YADAV : THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A) ON VARIOUS GROUNDS WHICH ARE AS UNDER: - 1 . THAT THE ID. CIT(A) - II, LUCKNOW HAS ERRED IN LAW AND ON FACTS IN CON FI RM ING THE ORDER OF REJECTING THE APPLICATION FILED UN DER SECTION 154 OF THE INCOME TAX ACT. 2 . THAT THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT THE INTIMATION UNDER SECTION 143(1) (A) OF THE INCOME TAX ACT WAS PASSED IN THE STATUS OF PARTNERSHIP FIRM AS AGAINST TH E CORRECT STATUS OF THE APPELLANT WHICH IS THAT OF AN INDIVIDUAL AND THE : - 2 - : SAME TANTAMOUNT TO A MISTAKE APPARENT FROM THE RECORD WHICH IS RECTIFIABLE UNDER SECTION 154 OF THE INCOME TAX ACT, 1961. 3 . THAT THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT THE AP PLICATION FOR ALLOTMENT OF PAN N UM BER WAS FILED BY THE APPELLANT IN THE STATUS OF INDIVIDUAL AND, THEREFORE, AFTER THE RECEIPT OF THE PA N , THE APPELLANT WAS UN DER THE BONAFIDE BELIEF THAT THE PAN ALLOTTED TO HIM WAS THAT OF AN INDIVIDUAL. 4 . THAT THE ID. CIT(A) HAS FAILED TO APPRECIATE THAT THE INTIMATION OF THE IMMEDIATELY PRECEDING YEAR, I.E ASSESSMENT YEAR 2006 - 07 WAS SENT TO THE APPELLANT IN THE STATUS OF AN INDIVIDUAL ON THE SAME P A N AND, THEREFORE, CREATION OF DEMAND BY TA K ING THE STATUS OF AN I NDIVIDUAL TO BE THAT OF A FIRM IN THE INTIMATION UNDER SECTION 143(1) (A) IS A MISTAKE WHICH WAS RECTIFIABLE UN DER SECTION 154 OF THE INCOME TAX ACT. 5 . THAT THE ORDER PASSED BY THE ID, CIT ( A) IS WITHOUT PROPER OPPORTUNITY AND BAD IN LAW. 6 . THAT THE OR DER PASSED BY THE ID. CIT(A) IS AGAINST THE MERITS, CIRCUM STANCES AND LEGAL ASPECTS OF THE CASE. 2 . THOUGH VARIOUS GROUNDS ARE RAISED IN THIS APPEAL, BUT THEY ALL RELATE TO THE REJECTION OF RECTIFICATION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT F OR TREATING THE ASSESSEE IN THE STATUS OF INDIVIDUAL AND THEREAFTER TO RECALCULATE THE TAX LIABILITY. 3 . THE FACTS IN BRIEF BORNE OUT FROM THE RECORD ARE THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR IN FORM ITR - 5 SHOWING TOTAL INCOME OF ` 85,960. THE RETURN WAS PROCESSED UNDER SECTION 143(1)(A) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER CALLED IN SHORT : - 3 - : THE ACT'). WHILE PROCESSING THE RETURN, TAX WAS LEVIED ON THE RATES APPLICABLE FOR FIRM . THE ASSESSEE FILED AN APPLICATI ON UNDER SECTION 154 OF THE ACT REQUESTING FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD CLAIMING THAT RATE OF TAX SHOULD BE THAT OF INDIVIDUAL . THIS APPLICATION OF THE ASSESSEE WAS REJECTED BY THE ASSESSING OFFICER AND THE ASSESSEE HAS PREFERRE D AN APPEAL BEFORE THE LD. CIT(A) WITH THE SUBMISSION THAT THE ASSESSEE HAD APPLIED FOR PERMANENT ACCOUNT NUMBER (PAN) IN THE STATUS OF INDIVIDUAL , BUT THE ISSUING AGENCY INADVERTENTLY ISSUED PAN IN THE STATUS OF FIRM . IN THE RETURN OF INCOME FILED BY T HE ASSESSEE, STATUS WAS SHOWN AS 1 (ONE) WHICH IS FOR INDIVIDUAL . THEREFORE, THE RATES APPLICABLE FOR FIRM HAD BEEN WRONGLY LEVIED. THE LD. CIT(A) RE - EXAMINED THE ISSUE IN THE LIGHT OF ASSESSEES CONTENTION AND HAS NOTICED THAT THE ASSESSEE HAS BEEN US ING THE PAN WHICH HAS BEEN ISSUED IN THE STATUS OF FIRM AND INSTEAD OF TAKING STEPS TO GET THE PAN AMENDED, HE HAS BEEN CONTINUOUSLY USING THE SAME. IT WAS ALSO NOTICED BY THE LD. CIT(A) THAT THE INCOME HAS BEEN FILED IN FORM ITR - 5 WHICH IS MEANT FOR THE ASSESSEES OTHER THAN INDIVIDUAL, HUF AND COMPANY. FINDING NO FORCE IN THE CONTENTIONS OF THE ASSESSEE, THE LD. CIT(A) CONFIRMED THE REJECTION OF RECTIFICATION APPLICATION. THE RELEVANT OBSERVATIONS OF THE LD. CIT(A) ARE EXTRACTED HEREUNDER: - 6 ( 1) I HA VE EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE. FIRSTLY, THE APPELLANT HAS BEEN USING THE PAN WHICH HAS BEEN ISSUED IN THE STATUS OF FIRM AND INSTEAD OF TAKING STEPS TO GET THE PAN AMENDED, HAS BEEN CONTINUOUSLY USING THE SAME FOR ITS INDIVIDUAL STATU S AS CLAIMED. SECONDLY, I FIND THAT THE RETURN OF INCOME HAS BEEN FILED IN THE FORM ITR - 5, WHICH IS MEANT FOR ASSESSEE'S OTHER THAN INDIVIDUAL, HUF, COMPANY AND OTHER ASSESSEE'S WHO ARE REQUIRED TO FILE RETURN OF INCOME BY VIRTUE OF PROVISIONS OF SUB - SECT ION : - 4 - : 4A, 4B, 4C AND 4D OF SECTION 139(1) OF THE ACT. IN OTHER WORDS THE FORM USED BY THE APPELLANT IS MEANT FOR FIRMS, AOP AND BOI ETC. IN OTHER WORDS THE RETURN OF INCOME HAS BEEN FILED IN THE FORM MEANT FOR FIRMS. FURTHER, IN THE RETURN SO FILED IN FORM I TR - 5, THE NAME HAS BEEN MENTIONED AS EXSEVICEMAN CHEETAH SECURITY GUARDS SERVICES AND NOT RAM TIRATH PATHAK. AGAIN, IN THE STATUS COLUMN OF THE RETURN THE STATUS HAS BEEN MENTIONED AS FIRM. 6(2) THE FORM OF RETURN OF INCOME IS PRESCRIBED IN RULE 12 OF THE INCOME TAX RULES, 1962, RULE 12 IS STATUTORY AND MANDATORY IN NATURE. THE FILING OF RETURN OF INCOME IN PROPER FORM IS PRIMARY CONDITION OF ASSESSMENT PROCEDURE, WHICH HAS TO BE COMPLIED WITH. A VALID ASSESSMENT CAN BE MADE ONLY AFTER FILING OF THE RETURN IN THE PRESCRIBED FORM. THE APPELLANT CHOSE TO FILE RETURN OF INCOME IN FORM ITR - 5, WHICH IS MEANT FOR FIRMS AND USED THE PAN 'ISSUED FOR FIRM. UNDER SUCH CIRCUMSTANCES, I FIND THAT THE TAXES HAVE BEEN CORRECTLY LEVIE D AS PER RATES APPLICABLE FOR FIRMS. AC CORDINGLY, THE AO HAS RIGHTLY REJECTED THE APPLICATION FOR RECTIFICATION CLAIMING RATES TO BE APPLIED AS APPLICABLE FOR INDIVIDUAL RATHER THAN FIRM. I DO NOT FIND MERIT IN THE CONTENTION OF THE APPELLANT AND THEREFORE THE APPEAL FAILS AND IS REJECTED. 4 . NOW THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE TRIBUNAL AND REITERATED ITS CONTENTIONS. 5 . THE LD. D.R., ON THE OTHER HAND, HAS INVITED OUR ATTENTION TO THE INTIMATION ISSUED TO THE ASSESSEE UNDER SECTION 143(1) OF THE ACT FOR ASSESSMENT YEAR 2006 - 07 WI TH THE SUBMISSION THAT EVEN IN THAT INTIMATION THE STATUS OF THE ASSESSEE WAS SHOWN AS FIRM. MOREOVER, THE NAME AND : - 5 - : ADDRESS OF THE ASSESSEE WAS SHOWN TO BE EXSEVICEMAN CHEETAH SECURITY GUARDS SERVICES . BESIDES, OUR ATTENTION WAS ALSO INVITED TO THE APP LICATION FORM FOR ALLOTMENT OF PERMANENT ACCOUNT NUMBER (PAN) WHICH IS APPEARING AT PAGES 5 & 6 OF THE COMPILATION IN WHICH THE STATUS OF THE ASSESSEE WAS SHOWN TO BE FIRM. THEREFORE, WHEN THE ASSESSEE HIMSELF HAS DECLARED ITS STATUS TO BE FIRM, PERMANENT ACCOUNT NUMBER ( PAN ) WAS RIGHTLY ISSUED IN THE STATUS OF FI R M. IT WAS FURTHER CONTENDED THAT THE RETURN OF INCOME WAS FILED IN FORM ITR - 5 IN WHICH THE STATUS OF THE ASSESSEE WAS ALSO SHOWN TO BE FIRM. WHEN THE ASSESSEE HAS SHOWN ITS STATUS AS FIRM IN AL L RESPECTIVE DOCUMENTS, THE ASSESSING OFFICER HAS RIGHTLY ASSESSED THE ASSESSEE IN THE STATUS OF FIRM AND THERE IS NO MISTAKE APPARENT IN THE INTIMATION WHICH CAN BE RECTIFIED UNDER SECTION 154 OF THE ACT. MOREOVER, IF THE ASSESSEE HAS NOTICED THE MISTAKE IN FILING OF RETURN OF INCOME , HE CAN VERY WELL FILE REVISED RETURN OF INCOME WITHIN THE TIME AVAILABLE TO IT. INSTEAD OF REVISING THE RETURN, HE WANTED RECTIFICATION IN THE INTIMATION ISSUED BY THE ASSESSING OFFICER , WHICH IS NOT PERMISSIBLE AS THERE IS NO MISTAKE IN THE INTIMATION ISSUED BY THE ASSESSING OFFICER AND IT WAS ISSUED ON THE BASIS OF THE RETURN FILED BY THE ASSESSEE. 6 . HAVING GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS, WE FIND THAT THE ASSESSEE HIMSE LF HAS DECLARED ITS STATUS AS FIRM IN THE APPLICATION FOR ALLOTMENT OF PERMANENT ACCOUNT NUMBER AND ALSO IN THE RETURN OF INCOME FILED WITH THE ASSESSING OFFICER. THEREFORE, THE ASSESSING OFFICER HAS NO OTHER MATERIAL BEFORE HIM EXCEPT TO ACCEPT THE ASSES SEE IN THE STATUS OF FIRM. THE SCOPE OF SECTION 154 OF THE ACT IS VERY LIMITED AND THE MISTAKE APPARENT IN THE INTIMATION CAN ONLY BE RECTIFIED. SINCE THE ASSESSING OFFICER PROCESSED THE RETURN OF INCOME AND ISSUED INTIMATION IN THE STATUS OF FIRM ON THE BASIS OF RETURN FILED BY THE ASSESSEE, THERE IS NO MISTAKE IN THE INTIMATION ISSUED BY THE : - 6 - : ASSESSING OFFICER. THEREFORE, RECTIFICATION UNDER SECTION 154 OF THE ACT IS NOT POSSIBLE. WE, THEREFORE, FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY DISMISSED THE APPEAL OF THE ASSESSEE. 7 . IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.8.2012. S D/ - S D/ - [ MEHAR SINGH ] [ S UNIL KUMAR Y ADAV ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 22.8.2012. JJ: 1307 COPY FORWARDED TO: 1 . APPE LLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR