Sri Padmaraj Durge, Gulbarga V. ITO, Gulbarga

ITA 972/BANG/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8463 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JACINTA ZIMIK VASHAI
• Assessee Lawyers: MANOJ D PUKHALE
• Keywords: Condonation of delay; TDS
• Section: 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBE R AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO.972/BANG/2009 ASSESSMENT YEAR : 2006-07 SRI PADMARAJ DURGE, NEAR BUS STAND, P.O. ALAND. GULBARGA DISTRICT. : APPELLANT VS. THE INCOME TAX OFFICER, WARD-2, GULBARGA. : RESPONDENT APPELLANT BY : SHRI MANOJ D. PUKHALE RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE CIT(APPEALS), HUBLI DATED 5.9.2008 FOR THE ASSESSME NT YEAR 2006-07. 2. THERE IS A DELAY OF 229 DAYS IN FILING THE APPEA L AND THE ASSESSEE HAS FILED AN AFFIDAVIT EXPLAINING THE CAUSE OF DELA Y. IT IS STATED THAT THE ORDER OF THE CIT(APPEALS) WAS RECEIVED ON 3.1.09 AN D THE APPEAL SHOULD HAVE BEEN FILED ON OR BEFORE 4.3.09, BUT IT WAS FIL ED ON 19.10.09 WITH A DELAY OF 229 DAYS. THE DELAY WAS ON ACCOUNT OF ASS ESSEES ILL-HEALTH AND ITA NO.972/BANG/09 PAGE 2 OF 5 TREATMENT AND THE ASSESSEE WAS ALSO ADMITTED TO HOS PITAL. MEDICAL CERTIFICATES IN SUPPORT OF THE SAME ARE FILED. HEN CE, IT IS SUBMITTED THAT THE DELAY WAS NOT INTENTIONAL BUT FOR BONA FIDE REASONS AND THEREFORE THE LD.AR PRAYED FOR CONDONATION OF DELAY IN FILING THE APPEA L. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THE REASONS PUT FORTH BY THE ASSES SEE FOR THE DELAY IN FILING APPEAL ARE REASONABLE AND THEREFORE THE DELAY OF 22 9 DAYS IS CONDONED. 4. THE ASSESSEE HAS RAISED SIX GROUNDS OF APPEAL, O UT OF WHICH GROUNDS NO.1 & 6 ARE GENERAL IN NATURE. THE OTHER GROUNDS ARE REPRODUCED BELOW: 2. THE LEARNED CIT(APPEAL) HAS FAILED IN CORRECTLY READING THE PROVISIONS OF SECTION 143(1) OF THE I.T. ACT, 1 961 & HAS CONCLUDED THAT THE AO CANNOT MAKE ANY ADJUSTMENTS I N THE INTIMATION U/S. 143(1) OF THE ACT WITHOUT LOOKING I NTO BACK RECORDS. THE PROVISIONS OF THE 143(1) OF THE ACT A RE VERY CLEAR IN THIS REGARD & EXCEPT FOR THE ADJUSTMENTS SPECIFIED IN THE SECTION 143(1)(A)(B)(C)(D) & (E) THE AO HAS NO POWER TO MAK E ANY OTHER CHANGES OR ADJUSTMENTS WHILE PROCESSING THE RETURN U/S. 143(1). BUT IN THIS CASE THOUGH THE AO HAS ERRED IN PROCESS ING THE RETURN ITSELF U/S 143(1) THE LEARNED CIT(APPEAL) HAS ERRED IN DEFENDING THE AO. 3. THE LEARNED CIT(APPEAL) HAS FAILED TO APPRECIATE THE FACT THAT THE MATTER IN APPEAL HAS ALREADY BEEN DECIDED BY THE SUPREME COURT OF INDIA IN THE CASE OF RAMABAI V/S C IT 181 ITR 400 (SC) (CASE OF II) AND IN THE CASE OF K.S. K RISHNARAO V. CIT 181 ITR 408 WHEREIN IT HAS BEEN HELD CLEARLY TH AT THE ASSESSEES ARE ALLOWED TO SPREAD OVER THE INTEREST I NCOME FOR THE PERIOD, FOR WHICH THE PAYMENT CAME TO BE MADE, SO A S TO COMPLETE THE INCOME OF THE ASSESSEE FOR THE DAY FOR THE RELEVANT ACCOUNTING YEAR (COPIES OF THE JUDGMENTS ARE ENCLOS ED). 4. THE ASSESSEE RELIED ON THE JUDGMENT GIVEN BY TRI BUNAL D OF THIS BENCH IN THE CASE OF ITO WARD-I GULBARG A V/S L.G. AGNIHOTRI WHEREIN THE FACTS ARE MORE OR LESS SIMILA R TO THIS CASE. ITA NO.972/BANG/09 PAGE 3 OF 5 5. THOUGH THE ORDER OF THE CIT(APPEAL) HUBLI HAS BE EN PASSED ON 5.9.2008 IT HAS BEEN SERVED TO THE ASSESS EE ON 3.1.2009. 5. THE BRIEF FACTS ARE, THE ASSESSEE FILED RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-07 CLAIMING A REFUND OF RS.52, 937/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE INCOME-TAX ACT BY T HE ITO WARD 3, GULBARGA AND REFUND OF RS.9,574 WAS GRANTED VIDE IN TIMATION DATED 12.3.2007. AGGRIEVED BY THE INTIMATION U/S 143(1) PASSED BY THE AO, THE ASSESSEE APPEALED BEFORE THE CIT(A) CONTENDING THAT THE RETURNED INCOME OF RS.9,341/- WAS NOT SHOWN IN THE INTIMATION, WHER EAS THE SAME WAS TREATED AS PRE-PAID TAXES (TDS). RELYING ON THE DE CISION OF CIT, GULBARGA IN THE CASE OF BASANNA VS. ITO, IT WAS SUBMITTED TH AT THE YEAR WISE BREAK UP OF INTEREST AND TDS HAS TO BE CONSIDERED WHILE P ASSING THE INTIMATION IN TERMS OF SEC. 143(1)(II). THUS, THE REFUND OF RS.5 2,397/- WAS TO BE ALLOWED AS CLAIMED BY THE ASSESSEE. 6. THE CIT(A) AFTER CONSIDERING THE MATTER HELD TH AT AS PER PROVISIONS OF THE ACT, AO CANNOT MAKE ADJUSTMENTS LOOKING INTO BACK RECORDS U/S. 143(1) OF THE ACT. HE OBSERVED SUCH OBJECTIONS ARE DEALT WITH DURING THE COURSE OF SCRUTINY BUT NOT DURING THE PROCESSING OF INTIMATION. HE FURTHER HELD THAT THE POWERS OF AO ARE RESTRICTED U/S 143(1 ) AND AO IS JUSTIFIED IN NOT MAKING ANY SUCH ADJUSTMENTS. THUS, THE ORDER O F THE AO WAS UPHELD BY THE LEARNED CIT(A). 7. THE LEARNED AR OF THE ASSESSEE SUBMITTED BEFORE US, THE PROVISIONS OF SEC. 143(1) ARE VERY CLEAR IN THIS REGARD, EXCEP T FOR THE ADJUSTMENT SPECIFIED IN SEC. 143(1) (A) (B) (C) (D) AND (E), THE AO HAS NO POWER TO ITA NO.972/BANG/09 PAGE 4 OF 5 MAKE ANY OTHER ADJUSTMENTS BY PROCESSING RETURN U/S 143(1). HE RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F RAMABAI VS. CIT, 181 ITR 400 AND THE CASE OF K.S KRISHNA RAO VS. CIT , 181 ITR 408, WHEREIN IT WAS HELD THAT THE ASSESSEE IS ALLOWED TO SPREAD OVER THE INTEREST INCOME FOR THE PERIOD IT ACCRUED AND COMPUTE THE IN TEREST INCOME ACCORDING TO THE RELEVANT ACCOUNTING YEARS. ON SIMILAR FACTS , THE DECISION OF THE TRIBUNAL IN THE CASE OF ITO VS. L.G AGNIHOTRI WAS A LSO RELIED UPON. 8. THE LD. DR RELIED ON THE DECISION OF THE LD. CIT (APPEALS). 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND SUFFICIENT FORCE IN THE ARGUMENT P UT IN BY THE LD. AR. FURTHER ON PERUSING THE INTIMATION U/S. 143(1) DATE D 12.3.2007 SIGNED BY ITO, WARD 3, GULBARGA, WE OBSERVED THAT THE RELEVAN T FIGURES ARE NOT MENTIONED AGAINST ITEM NO.I INCOME AND ARE LEFT BLANK. CONSIDERING THESE FACTS, WE REMIT THE MATTER BACK T O THE FILE OF THE LD. AO WITH DIRECTIONS TO PASS NECESSARY ORDERS TAKING INT O CONSIDERATION OF ALL THE FACTS AND ISSUES RAISED BY THE ASSESSEE AND AS PER LAW. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 5 TH DAY OF MARCH, 2010. SD/- SD/- (SHAILENDRA KUMAR YADAV ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBE R BANGALORE, DATED, THE 5 TH MARCH, 2010. DS/- ITA NO.972/BANG/09 PAGE 5 OF 5 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. C IT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.