Sri. Bandipalem Sai Subramanian Karthik, Bangalore V. Income-Tax Officer-Ward-5(3)(1) , Bangalore

ITA 619/BANG/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0209 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: C
• Next Hearing Date: 31-10-2023
• Assessment Year: 2016-2017
• Appeal Filed On: 21-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARITHIVEL
• Keywords: Opportunity of being heard; Revised return; TDS
• Section: 271(1)(c); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH : BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI BEENA PILLAI, JUDICIAL MEMBER ITA No.619/Bang/2023 Assessment year : 2016-17 Bandipalem Sai Subramanian Karthik, No.84,1 Arasappa Building, Kaggalipura Post Kanakapura Main Road-560 082. Karnataka. PAN – AULPK 0321 P Vs. The Income-tax Officer, Ward-5(3)(1), Bengaluru. APPELLANT RESPONDENT Assessee by : Shri Mukesh Kumar Jain, C.A Revenue by : Shri Parithivel, JCIT (DR) Date of hearing : 01.11.2023 Date of Pronouncement : 03.11.2023 O R D E R Per Beena Pillai, Judicial Member Present appal arises out of the order dated 23/06/2023 passed by the NFAC, Delhi for assessment year 2016-17 on following grounds of appeal:- “1. The Learned Commissioner of Income Tax Appeal, National Faceless Appeal Centre ('Ld. CIT-A, NFAC') has erred ITA No.619/Bang/2023 Page 2 of 5 in the manner of passing the order, such passing of order is bad in law and is liable to be quashed in limine. 2. The Learned lower authorities have failed to appreciate the fact that the revised return of income filed by the appellant is a defective return and levy of penalty against a defective return subsequently to be an invalid return is not justifiable. 3. The Learned lower authorities have erred in law and on facts in initiating penalty proceedings based on the additions made in the assessment order passed on the basis of return of income filed u/s 139(5) of the Act which is not valid in law as the same does not satisfy the conditions specified for revising the return of income 4. The Learned lower authorities have erred in law and on facts in initiating penalty proceedings and passing the order u/s 271(1)(c) of the Act without establishing the mens rea by the appellant. 5. The learned lower authorities have erred in levying penalty u/s 271(1)(c) of the Income tax Act, 1961 ("the Act") even though the appellant has established that he has acted under a bonafide belief and never filed a revised return nor have instructed/assigned the same to any third party. 6. The learned lower authorities ought to have appreciated that the initiation of penalty u/s 271(1)(c) of the act is void-ab-initio and hence the penalty order is also invalid. 7. The learned lower authorities have erred in not giving proper opportunity of being heard. 8. The learned lower authorities have not appreciated the explanations given by the appellant during assessment proceedings. 9. The learned lower authorities has erred in law in levying penalty 10. That the appellant reserves its right to add, alter, amend or withdraw any ground of appeal either before or at the time of hearing of this appeal. 11. For the above grounds and other grounds adduced at the time of hearing it is requested to that the order to be 11.1. Quashed. 11.2. Any other relief that the authorities deem fit in the facts and circumstances of the case to meet the end of justice.” ITA No.619/Bang/2023 Page 3 of 5 2. The assessee is deriving income salary filed his return of income for the AY 2016-17 on 27.07.2016 admitting total income of Rs.13,93,580/-. Subsequently, the assessee filed revised return of income on 31.08.2016 declaring gross total income at Rs.2,46,294/- and total income at Rs.75,670/- after claiming deduction of Rs.1,70,628/- under Chapter-VIA of the Act. In this revised return of income the assessee claimed refund of Rs.2,50,370/- from the TDS made by his employers on his salary paid. The Ld.AO completed the assessment on 31.10.2018 assessing gross total income of Rs.15,64,208/-, allowing deduction under Chapter-VIA of Act amounting to Rs.1,70,628 and assessed total income at Rs.13,93,580/-. Subsequently, the Ld.AO initiated penalty proceedings and levied penalty of Rs.2,50,367/- being 100% of the tax sought to be evaded due to furnishing inaccurate particulars of income. 3. Aggrieved by the order of the ld.CIT(A), the assessee is in appeal before this Tribunal. 4. The ld.AR submitted that assessee is a salaried employee of Bosch Ltd., and that somebody hacked the income-tax portal of the assessee and filed revised return of income and claimed excess of refund as TDS. It is submitted that it is not the assesee who had filed such revised return and that the assessee had filed RTI application on 06/10/2023 calling for acknowledgment of such revised return that is allegedly said to be filed by the assessee and considered in framing the assessment.. He also submitted that the assessee had filed FIR with Cyber Cell, a copy of which is placed at page no.32 of the paper book and on necessary verification at primary stage by the authorities, it is found that the complaint of ITA No.619/Bang/2023 Page 4 of 5 the assessee is true. It is also stated in the report that, as the accused was not traceable further investigation is could not be carried out. 5. The ld.AR submitted that, though the revised return was filed claiming the refund, the revised return was not acted upon due to the discrepancies that was observed by the CPC, which is very clear from the reply to the RTI application dated 30/10/2023, placed at page 50 of the paper book. He prayed that under such circumstances, the assessee’s case may be treated with compassion. 6. The ld.DR on the contrary, submitted that the RIT application invalidating the revised return has been brought to the notice recently, and, therefore, requires necessary verification. 7. We have perused the material available on record and examined the orders of the authorities. 7.1 It is noted that, the assessment order was framed based on the revised return and the penalty has been initiated for the wrong TDS claimed in the revised return. However, from the RTI order passed u/s 7(1) of the Act by the ITO dated 30/10/2023, it is clear that the revised return not considered due to discrepancies and that the refund as claimed in such revised return has admittedly not been acted upon by the revenue. Under such circumstances, in the interest of justice, we deem it fit and proper to remand the issue back to the Ld.AO to consider the submissions of the assessee in the light of the RTI order u/s 7(1) of the Act in RTI Act 2005 dated 30/01/2023. Needless to say that proper opportunity of being heard must be granted to the assessee. ITA No.619/Bang/2023 Page 5 of 5 Accordingly, the appeal filed by the assessee is sent back to the file of CIT(A) for denovo consideration. In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in court on 3 rd day of November, 2023 Sd/- Sd/- (CHANDRA POOJARI) (BEENA PILLAI) Accountant Member Judicial Member Bangalore, Dated, 3 rd November, 2023 / vms / Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore