ITO 8(3)(1), MUMBAI V. SAKSHI AGENCIES P. LTD, MUMBAI

ITA 8749/MUM/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 5064 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 17-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 26-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI
• Keywords: Opportunity of being heard; Period of limitation; Revised return
• Section: 139(5)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , , !'# , $ % BEFORE SHRI I.P. BANSAL, JM AND SHRI N.K. BILLAI YA, AM ./ I.T.A. NO.8749/MUM/2011 ( & & & & / ASSESSMENT YEAR :2007-08 THE ITO 8(3)(1), AAYAKAR BHAVAN, MUMBAI-400 020 M/S. SAKSHI AGENCIES PVT. LTD., A-5, RAJ INDUSTRIAL ESTATE, ANDHERI(E), MUMBAI-400 059 ' $ ./ () ./PAN/GIR NO. : AABCS 4395J ( '* /APPELLANT ) .. ( +,'* / RESPONDENT ) '* - / APPELLANT BY : ` SHRI ASHOK SURI +,'* . - /RESPONDENT BY : SHRI JAYANT BHATT . /0$ / DATE OF HEARING :17.12.2013 12& . /0$ / DATE OF PRONOUNCEMENT : 20.12.2013 3 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-18, MUMBAI DT.12.10.2011 PERTAINING TO A.Y. 2007-08. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN DIRECTING THE AO TO ALLOW THE CLAIM OF THE DEDUCTIO N U/S. 54G OF THE ACT. IT IS THE CLAIM OF THE REVENUE THAT THE LD. CIT(A) SHOULD NOT HAVE ITA NO.8749/M/2011 2 DIRECTED THE AO TO ALLOW THE CLAIM OF EXEMPTION U/ S. 54G OF THE ACT IN THE LIGHT OF THE RATIO OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) VS CIT 284 ITR 323. 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT DU RING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS, THE ASSESSING OFFI CER NOTICED THAT THE ASSESSEE VIDE LETTER DT. 10.12.009 MADE A FRESH CLA IM OF EXEMPTION U/S. 54G OF THE ACT. THE AO NOTICED THAT THE ASSESSEE H AS NOT CLAIMED ANY SUCH EXEMPTION IN ITS ORIGINAL RETURN OF INCOME WH ICH WAS REVISED ON 26.9.2009 AND AGAIN IN THE REVISED RETURN ALSO THE ASSESSEE DID NOT CLAIM ANY EXEMPTION U/S. 54G OF THE ACT. THE AO FURTHER OBSERVED THAT THE ASSESSEE CLAIMED EXEMPTION U/S. 54G ONLY IN THE SEC OND REVISED RETURN FILED ON 4.12.2009 BUT THE SAME REVISED RETURN WAS FILED BEYOND THE PERIOD OF LIMITATION PRESCRIBED U/S. 139(5) OF THE ACT. FOLLOWING THE DECISION IN THE CASE OF GOETZ INDIA (SUPRA), THE AO REJECTED THE CLAIM OF EXEMPTION U/S. 54G OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND WAS SUCCESSFUL IN CONVINCING THE LD. CIT(A) THAT THE CL AIM IS VALID AND THE ASSESSEE DESERVES TO BE ALLOWED THE SAID CLAIM OF E XEMPTION. THE LD. CIT(A) WHILE ALLOWING THE APPEAL RELIED UPON THE DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF BALMUKUNDA ACHARYA 310 ITR 310. 5. AGGRIEVED BY THIS, REVENUE IS BEFORE US. THE LD . DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE FINDINGS OF T HE AO. THE LD. COUNSEL FOR THE ASSESSEE RELIED UPON THE ORDER OF T HE LD. CIT(A). 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES. WE FIND THAT IT IS A SETTLED POSITION OF LAW THAT THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF ITA NO.8749/M/2011 3 GOETZ INDIA (SUPRA) PUTS FETTER ONLY ON THE AO BUT NOT ON THE APPELLATE AUTHORITIES. THEREFORE, WE DO NOT FIND ANY ERROR I N THE DIRECTIONS OF THE LD. CIT(A) IN FOLLOWING THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF BALMUKUNDA ACHARYA (SUPRA). HOWEVER, MODIFYING THE DIRECTIONS OF THE LD. CIT(A), WE RESTORE THIS I SSUE BACK TO THE FILES OF THE AO. THE AO IS DIRECTED TO ENTERTAIN THE CLAI M OF THE ASSESSEE U/S. 54G ONLY AFTER VERIFYING WHETHER THE ASSESSEE FULFI LLS ALL THE CONDITIONS LAID DOWN U/S. 54G OF THE ACT AND ONLY AFTER FULL Y SATISFYING HIMSELF THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S. 54G OF THE ACT , THE AO IS DIRECTED TO ALLOW THE CLAIM OF THE ASSESSEE. NEEDL ESS TO MENTION, THE AO SHOULD GIVE A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2013 . 3 . 2& $ 4 56 20.12.2013 2 . < SD/- SD/- (I.P. BANSAL ) (N. K. BILLAIYA) /JUDICIAL MEMBER $ / ACCOUNTANT MEMBER MUMBAI; 5 DATED 20 /12 /2013 . . ./ RJ , SR. PS ITA NO.8749/M/2011 4 3 . +/ = &/ 3 . +/ = &/ 3 . +/ = &/ 3 . +/ = &/ / COPY OF THE ORDER FORWARDED TO : 1. '* / THE APPELLANT 2. +,'* / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. ?< +/ , , / DR, ITAT, MUMBAI 6. <@ A / GUARD FILE. 3 3 3 3 / BY ORDER, , / +/ //TRUE COPY// B BB B / C ( C ( C ( C ( (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI