ITO, Bangalore V. Smt. Uma Shambhoj, Bangalore

ITA 689/BANG/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5613 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-05-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 08-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GANESH RAO
• Keywords: Question of law; Revised return
• Section: 143(3); 139(5); 148

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH A BEFORE DR. O.K NARAYANAN, VICE PRESIDENT AND SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER ITA NO.689 /BANG/200 9 (ASST. YEA R -2006-07) THE INCOME-TAX OFFICER, WARD-9(2), BANGALORE. . APPELLANT VS. SMT. UMA SHAMBOJ, NO.439, 19 TH G MAIN ROAD, 1 ST N BLOCK, RAJAJINAGAR, BANGALORE. . RESPONDENT AND CO NO.48 /BANG/2009 (ASST. YE AR -2006-07) (B Y ASSESSEE) REVENUE BY : SMT. JACINTA ZIMIK VASHAI, ADDL. COMMI SSIONER OF INCOME-TAX ASSESSEE BY : SHRI GANESH RAO, ADVOCATE O R D E R PER DR. O.K NARAYANAN, VICE PRESIDENT THIS APPEAL IS FILED BY THE REVENUE. THE CROSS-OB JECTION IS FILED BY THE ASSESSEE. THE RELEVANT ASSESSMENT YEA R IS 2006-07. THE APPEAL AND THE CROSS-OBJECTION ARE DIRECTED AGAINST THE ORDER OF THE ITA NO.689/B/09 & 2 CO NO.48/B/09 CIT(A)-V AT BANGALORE DATED 1.5.2009 AND ARISE OUT OF THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME-TAX ACT 1961. 2. THE DETAILED GROUNDS RAISED BY THE REVENUE READ AS BELOW : (I) THE ISSUE THAT PRIMARILY NEEDS TO BE CONSIDERED IS VALIDITY OF THE REVISED RETURNS FOR A.Y 06-07 & A.Y 07-08, BELATEDLY FILED BY ASSESSEE TO FILE A REVISED RETURN IN THIS CASE THE RETURNS ARE FILED BELATEDLY U/S 139(5) & WHERE THE ORIGINAL RETURN ITSELF IS FILED U/S 139(4). (II) THIS IS A MERE TAX AVOIDANCE TACTICS MADE BY THE ASSESSEE, THE FACTS & CIRCUMSTANCES OF THE INSTANT CASE ARE TOTALLY DIFFERENT FROM THE CASE LAWS QUOTED BY THE ASSESSEE. (III) THE INCOME FROM HOUSE PROPERTY IN THE HANDS OF A PERSON WHO IS NOT THE OWNER CANNOT BE TAXED AS INCOME FROM OTHER SOURCES. THIS VIEW POINT HAS BEEN TAKEN IN CIT VS. SMT. T.P SISSDWA (1982) 133 ITR 840 (BOM). (IV) THERE IS NO SUCH SPILT UP EXISTS AS PER COMPUTATION U/S 22, THE ENTIRE INCOME FROM THE ITA NO.689/B/09 & 3 CO NO.48/B/09 HOUSE PROPERTY HAS RIGHTLY BEEN TREATED AS INCOME FROM HOUSE PROPERTY. (V) IT IS FOUND THAT THE ASSESSEE IS IN OCCUPATION OF THE BUILDING AS OWNER TO ALL INTENTS AND PURPOSES, EXCEPT THE SALE DEED IN HIS FAVOUR, EVEN THEN, HE I S LAIBLE TO INCOME-TAX U/S 22. (VI) FINALLY, TAX PLANNING MAY BE LEGITIMATE PROVIDED IT IS WITH IN THE FRAME WORK OF LAW. COLOURABLE DEVICES CANNOT BE PART OF TAX PLANNING & IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IS HONORABLE TO AVOID PAYMENT OF TAX BY RESORTING TO DUBIOUS METHODS AS DONE IN THE INSTANT CASE. (VII) THE CIT(A) ERRED IN ALLOWING ADMINISTRATION EXPENSES & CONVEYANCE EXPENSES. THE PARTICULARS FILED BY THE ASSESSEE BEFORE THE CIT(A) WHICH WERE HITHER TO NOT PRODUCED BEFORE THE AO. 3.. WE HEARD SMT. JACINTA ZIMIK VASHAI, THE LEARNED ADDL. COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVEN UE AND SHRI GANESH RAO, THE COUNSEL APPEARING FOR THE ASSE SSEE. ITA NO.689/B/09 & 4 CO NO.48/B/09 4. WE HEARD BOTH SIDES. THE ORIGINAL RETURN FILED BY THE ASSESSEE ITSELF WAS BELATED AND NO NOTICE U/S 148 WAS ISSUED BY THE ASSESSING AUTHORITY TO REGULARIZE THE TAX RETURN. THEREFORE, THERE IS NO MUCH FORCE IN THE ARGUMENTS OF THE REVENUE THAT THE REVI SED RETURN SHOULD HAVE BEEN IGNORED AS NON-EST WHEN THE ORIGINAL CLAIM ITSELF WAS BELATED AND NOT REGULATED. IN THIS INTRIGUING SITU ATION, WE ARE NOT MUCH INCLINED TO GO INTO THE LEGAL CONTENTIONS RAIS ED BY THE REVENUE IN THIS APPEAL. 5. AS THE MAIN GROUND ON QUESTION OF LAW HAS BEEN H ANDLED AS STATED ABOVE, WE FIND THAT THERE IS NO MUCH RELEVAN CE IN GOING INTO THE ISSUE REGARDING THE HEAD OF INCOME UNDER WHICH, T HE ASSESSMENT SHOULD HAVE BEEN COMPLETED. FOR THIS REASON, WE DO NOT WANT TO DESTABILIZE THE VALIDITY OF THE FRAGILE ASSESSMENT. 6. THE APPEAL FILED BY THE REVENUE IS LIABLE TO BE DISMISSED. 7. THE ASSESSEE DOES NOT PRESS THE CROSS-OBJECTION FILED BY HER. ITA NO.689/B/09 & 5 CO NO.48/B/09 8. IN RESULT, THE APPEAL FILED BY REVENUE IS DISMIS SED AND THE CROSS-OBJECTION FILED BY THE ASSESSEE IS REJECTED, AS NOT PRESSED. ORDERS PRONOUNCED ON MONDAY , THE 1ST DAY OF MARCH, 2010, AT BANGALORE. SD/- SD/- (SHAILENDRA KUMAR YADAV) (DR. O.K NARAYA NAN) JUDICIAL MEMBER VICE PR ESIDENT VMS. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF 7..GF, ITAT, NEW DELHI. BY ORDER ASST. REGISTRAR, ITAT, BANGA LORE.