Shri Vijay M. Vimawala, Surat V. The Income Tax Officer, Ward-6(4), Surat

ITSSA 127/AHD/2014

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1821 (ITAT-SURAT)
• Duration Of Justice: 4 year(s) 1 month(s) 23 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 02-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 06-04-2017
• Assessment Year: 1999-2000
• Appeal Filed On: 10-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRASENJIT SINGH
• Assessee Lawyers: RASESH SHAH
• Keywords: Set aside
• Section: 132; 139; 153A

Judgement Text

SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 1 OF 8 VIJAY M VIMAWALA , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./ I.T.SS A NO. 127/AHD/2014 / A.Y.:1999-2000 SHRI VIJAY M. VIMAWALA 88, SOMESHWARA ENCLAVE, UDHANA MAGDALLA ROAD SURAT PAN:ADTPV 4980-A V S . INCOME TAX OFFICER, WARD- 6(4), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI RASESH SHAH, CA /REVENUE BY SHRI PRASENJIT SINGH, CIT(D.R.) / DATE OF HEARING: 02.05.2018 /PRONOUNCEMENT ON 03.05.2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LEARNED OF COMMISSIONER OF INCOME TAX (APPEALS)-1, SURAT (IN SHORT THE CIT (A)) DATED 13.01.2014 PERTAINING TO ASSESSMENT YEAR 1999-2000 WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE ITO WARD 6(4) SURAT (IN SHORT THE AO) DATED 29.02.2012 UNDER SECTION 143 (3) OF INCOME TAX ACT,1961 (IN SHORT THE ACT). 2. GROUND NO. 1 &2 THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION OF THE AO IN NON-GRANTING REFUND OF TAX PAID OF RS. SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 2 OF 8 6,54,253 ON RETURNED INCOME OF RS. 33,21,267 EVEN THOUGH THE ASSESSMENT WAS QUASHED BY CIT (A) SET-ASIDE PROCEEDINGS OF APPEAL THE ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 153C OF THE ACT. 3. FACTS APROPOS OF THIS GROUND ARE THAT THE ASSESSEE HAS FILED A RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION153C OF THE ACT DECLARING TOTAL INCOME OF RS.33,21,267/- AND PAYING SELF- ASSESSMENT TAX OF RS.6,54,253/-. THE PROCEEDING INITIATED UNDER SECTION 153C ARE CANCELLED BY THE CIT (A) VIDE ORDER DATED IN 20.01.2012. THEREFORE, THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED THAT THE PROCEEDING INITIATED UNDER SECTION 153C HAVE BEEN QUSHED BY THE CIT (A). THEREFORE, THE ASSESSMENT SO MADE IS CEASED TO BE EXIST IN THE EYES OF LAW. THEREFORE, THE ASSESSEE IS ENTITLED TO REFUND OF TAXES PAID AS SELF-ASSESSMENT TAX OF RS.6,54,253/-, WHILE FILING OF RETURN OF INCOME UNDER SECTION 153C OF THE ACT. AU CONTRAIRE , THE LD. CIT (DR) DREW OUR ATTENTION TO THE FINDINGS OF LD. CIT (A) WHEREIN BY REFERRING THE PROVISO (B) TO SECTION 40 OF THE ACT, HELD THAT THE SECTION CLEARLY SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 3 OF 8 PROVIDES THAT NO REFUND WOULD BE GRANTED WHICH IS PAID AS SELF- ASSESSMENT TAX, OR ADVANCE TAX ON RETURNED INCOME. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IN ORDER TO APPRECIATE THE FACTS AND LAW POINT IN PROPER PERSPECTIVE, THE PROVISION OF SECTION 240 ARE REPRODUCED AS UNDER: 240. WHERE, AS A RESULT OF ANY ORDER PASSED IN APPEAL OR OTHER PROCEEDING UNDER THIS ACT, REFUND OF ANY AMOUNT BECOMES DUE TO THE ASSESSEE, THE [ASSESSING] OFFICER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, REFUND THE AMOUNT TO THE ASSESSEE WITHOUT HIS HAVING TO MAKE ANY CLAIM IN THAT BEHALF: [ PROVIDED THAT WHERE, BY THE ORDER AFORESAID, (A) AN ASSESSMENT IS SET ASIDE OR CANCELLED AND AN ORDER OF FRESH ASSESSMENT IS DIRECTED TO BE MADE, THE REFUND, IF ANY, SHALL BECOME DUE ONLY ON THE MAKING OF SUCH FRESH ASSESSMENT; (B) THE ASSESSMENT IS ANNULLED, THE REFUND SHALL BECOME DUE ONLY OF THE AMOUNT, IF ANY, OF THE TAX PAID IN EXCESS OF THE TAX CHARGEABLE ON THE TOTAL INCOME RETURNED BY THE ASSESSEE.] 5. THUS, THE PLAIN READING OF PROVISO (B) TO SECTION 240 PROVIDES THAT WHERE ASSESSMENT IS ANNULLED IN APPEAL, THE REFUND SHALL BECOME DUE ONLY OF THE AMOUNT OF TAX, IF ANY PAID IN EXCESS SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 4 OF 8 OF TAX PAID ON RETURNED INCOME. THEREFORE, THE SELF-ASSESSMENT TAX PAID ON RETURNED INCOME FILED UNDER SECTION 153C OF THE ACT WOULD NOT BE ADMISSIBLE EVEN IF THE ASSESSMENT MADE UNDER SECTION 153C IS ANNULLED IN APPEAL. WE MAY FURTHER REFER THE PROVISION OF SECTION 153A WHICH READS AS US UNDER:- 153A . 21 [(1)] NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN THE CASE OF A PERSON 22 WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BOOKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SECTION 132A AFTER THE 31ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNISH WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF INCOME IN RESPECT OF EAC H ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, 22 SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139; (B) ASSESS OR REASSESS THE TOTAL INCOME OF SIX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH SUCH SEARCH IS CONDUCTED OR REQUISITION IS MADE 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] : PROVIDED --- PROVIDED FURTHER 26 [ PROVIDED ALSO 28 [ PROVIDED ALSO (B) SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 5 OF 8 (C) EXPLANATION 1 EXPLANATION 2. 29 [(2) IF ANY PROCEEDING INITIATED OR ANY ORDER OF ASSESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE 30 [PRINCIPAL COMMISSIONER OR] COMMISSIONER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] EXPLANATION.FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, (I) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; (II) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. 6. THUS, AS PER PROVISION OF SECTION 153A(1)(A), THE RETURN SHALL BE FURNISHED IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS 23 [AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS] REFERRED TO IN CLAUSE ( B ), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 6 OF 8 ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139;. THUS, THE RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 153A/153C WOULD BE DEEMED TO BE RETURN AS FILED UNDER SECTION 139 OF THE ACT. 7. FURTHER, AS PER PROVISIONS OF SECTION 153A(2) IF ASSESSMENT OR REASSESSMENT MADE UNDER SUB-SECTION (1) OF SECTION 153A OR 153C HAS BEEN ANNULLED IN APPEAL OR ANY OTHER LEGAL PROCEEDING, THEN, NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTION (1) OR SECTION 153, THE ASSESSMENT OR REASSESSMENT RELATING TO ANY ASSESSMENT YEAR WHICH HAS ABATED UNDER THE SECOND PROVISO TO SUB-SECTION (1), SHALL STAND REVIVED WITH EFFECT FROM THE DATE OF RECEIPT OF THE ORDER OF SUCH ANNULMENT BY THE 30 [PRINCIPAL COMMISSIONER OR] COMMISSIONER. FURTHER , IT MAY BE SEEN THERE IS SAVING CLAUSE PROVIDED IN EXPLANATION BELOW TO PROVISO TO SECTION 153A(2) WHICH IS AS UNDER: PROVIDED THAT SUCH REVIVAL SHALL CEASE TO HAVE EFFECT, IF SUCH ORDER OF ANNULMENT IS SET ASIDE.] SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 7 OF 8 EXPLANATION .FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED THAT, ( I ) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, SECTION 153B AND SECTION 153C , ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION; ( II ) IN AN ASSESSMENT OR REASSESSMENT MADE IN RESPECT OF AN ASSESSMENT YEAR UNDER THIS SECTION, THE TAX SHALL BE CHARGEABLE AT THE RATE OR RATES AS APPLICABLE TO SUCH ASSESSMENT YEAR. 8. THE ABOVE EXPLANATION MAKES IT CLEAR THAT SAVE AS PROVIDED THE PROVISIONS CONTAINED IN SECTION 153B AND 153C, ALL OTHER PROVISION OF THIS ACT SHALL APPLY TO ASSESSMENT MADE UNDER THAT SECTION. THUS, THE PROVISO (B) TO SECTION 240 IS MADE APPLICABLE TO THE PROCEEDING INITIATED UNDER SECTION 153A AND 153C OF THE ACT. THE PROVISO (B) TO SECTION 240 OF THE ACT, PROVIDES THAT WHERE ASSESSMENT IS ANNULLED IN APPEAL, THE REFUND SHALL BECOME DUE ONLY OF THE AMOUNT OF TAX, IF ANY PAID IN EXCESS OF TAX PAID ON RETURNED INCOME. THIS VIEW IS ALSO SUPPORTED BY THE JUDGEMENT OF HON`BLE SUPREME COURT IN THE CASE OF CIT V. SHELLY PRODUCTS [2003] 129 TAXMAN 271(SC) WHEREIN IT WAS LAID DOWN PROVISO (B) TO SECTION 240 PROVIDES THAT THAT WHERE ASSESSMENT IS SHRI VIJAY M VIMAWALA V. ITO6(40SRTF /I.T.A. NO.127 /AHD/20/A.Y.:99-00 PAGE 8 OF 8 ANNULLED , THE REFUND SHALL BE BECOME DUE ONLY IN RESPECT OF THE AMOUNT , IF ANY, PAID IN EXCESS OF THE TAX CHARGEABLE ON THE TOTAL INCOME RETURNED BY THE ASSESSEE. IN THE LIGHT OF ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. ACCORDINGLY, THE GROUNDS OF APPEAL AS TAKEN BY THE ASSESSEE ARE THEREFORE, DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. 10. THE ORDER PRONOUNCED IN THE OPEN COURT ON 03.05.2018 SD/- SD/- (C.M. GARG) (O.P. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER / SURAT, DATED: 3 RD MAY, 2018 COPY OF ORDER FORWARDED TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT