SHRI CHANDRA KUMAR CHUGH, V. THE ACIT 4 (1),

ITSSA 52/IND/2007

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 9445 (ITAT-INDORE)
• Duration Of Justice: 2 year(s) 11 month(s) 11 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 31-03-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-03-2010
• Assessment Year: misc
• Appeal Filed On: 19-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P CHAUDHARY
• Assessee Lawyers: TRIBHUVAN SACHDEVA
• Section: 154

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER ITA (SS)NO. 52/IND/2007 BLOCK PERIOD 1.4.1996 TO 17.11.2002 SHRI CHANDRA KUMAR CHUGH INDORE PAN AMIPK3298C APPELLANT VS DY. COMMR. OF INCOME TAX 4(1) INDORE RESPONDENT APPELLANT BY SHRI TRIBHUVAN SACHDEVA RESPONDENT BY SHRI S.P. CHAUDHARY O R D E R PER GUPTA V.K., ACCOUNTANT MEMBER THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 5 TH JANUARY, 2007 OF THE LEARNED COMMISSIONER OF INCOM ETAX (APPEALS). 2. WE HAVE HEARD SHRI TRIBHUVAN SACHDEVA, LEARNED COUNSEL FOR THE ASSESSEE AND SHRI S.P. CHAUDHARY, L EARNED CIT DR. 2 3. IN THIS APPEAL THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS) IN NOT ALLOWING THE CREDIT FOR TDS/ADVANCE TAX PAID IN THE ASSESSMENT YEARS 1997-98, 1998-99 AND 1999-00. 4. THE FACTS, IN BRIEF, ARE THAT FOR THE ASSESSMENT YEARS 1997-98, 1998-99 AND 1999-00, THE ASSESSEE FILED BE LATED RETURNS ALONG WITH ITS CLAIM FOR CREDIT OF TAX DEDU CTED AT SOURCE AND ADVANCE TAX PAID BY THE ASSESSEE. THE ASSESSIN G OFFICER TREATED SUCH RETURNS AS NON EST AND ASSESSED THE IN COME SHOWN THEREIN AS UNDISCLOSED INCOME FOR THESE YEARS UNDER SECTION 158BC OF THE ACT. THE ASSESSING OFFICER, A CCORDINGLY, MADE ADDITIONS OF RS.1,30,599/- RS.2,50,161/- AND R S. 1,57,146/- IN THE ASSESSMENT YEARS 1997-98, 1998-99 AND 1999-00, RESPECTIVELY. THE ASSESSEE, THEREAFTER, F ILED AN APPLICATION UNDER SECTION 154 OF THE ACT FOR GRANT OF CREDIT OF TAXES PAID BY IT AND ALSO TO REVISE THE INTEREST CH ARGED UNDER SECTIONS 158BFA(1) AND 220(2) OF THE ACT. THE ASSES SING OFFICER, HOWEVER, REJECTED THIS CLAIM OF THE ASSESS EE BY OBSERVING THAT IN THE BLOCK RETURN FILED BY THE ASS ESSEE, THE ASSESSEE HAD NOT SHOWN ANY PAYMENT OF TAX AND CREDI T FOR TAX PAID COULD NOT BE GIVEN FOR OTHER ASSESSMENT YEARS WHILE 3 MAKING THE ASSESSMENT FOR SUCH ASSESSMENT YEARS UND ER CHAPTER XIV-B OF THE ACT. AGGRIEVED BY THIS, THE A SSESSEE PREFERRED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS). HOWEVER, NONE APPEARED IN THE COURSE OF APPELLATE PROCEEDINGS. THEREFORE, THE LEARNED COMM ISSIONER OF INCOMETAX (APPEALS) IN THE ABSENCE OF ANY WRITTE N SUBMISSIONS OR PERSONAL REPRESENTATION CONFIRMED TH E ACTION OF THE ASSESSING OFFICER. AGGRIEVED BY THIS, THE ASSE SSEE IS IN APPEAL BEFORE US. 5. THE LEARNED COUNSEL FOR THE ASSESSEE NARRATED TH E FACTS AND CONTENDED THAT AS PER PROVISIONS OF SECTION 158 BH OF THE ACT , ALL OTHER PROVISIONS, HAS SPECIFICALLY NOT EX CLUDED UNDER CHAPTER XIVB OF THE ACT , WERE TO BE APPLIED. HE R EFERRED TO THE PROVISIONS OF SECTIONS 199, 219, 158BC, 140A AN D SECTION 2(40) OF THE ACT TO STATE THAT THE ASSESSEE WAS ELI GIBLE FOR CREDIT OF ADVANCE TAX/TDS IN RESPECT OF INCOME OF THOSE YE ARS TREATED AS UNDISCLOSED INCOME AND ASSESSED AS SUCH. 6. ON THE OTHER HAND, THE LEARNED CIT DR PREFERRED TO RELY UPON THE ORDER OF THE LEARNED COMMISSIONER OF INCOM ETAX (APPEALS) AND ALSO CONTENDED THAT THE ASSESSEE DID NOT MAKE SUCH CLAIM NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LEARNED COMMISSIONER OF INCOMETAX (APPEALS). 4 7. IN REJOINDER, THE LEARNED COUNSEL FOR THE ASSESS EE CONTENDED THAT BY FILING AN APPLICATION UNDER SECTI ON 154 OF THE ACT , THE ASSESSEE MADE SUCH CLAIM BEFORE THE ASSES SING OFFICER AND THIS FACT ALSO PROVED THAT THE DOCUMENT ARY EVIDENCES OF PAYMENT OF SUCH TAXES HAD BEEN FILED A LONG WITH THE RETURNS, WHICH WERE TREATED AS NON EST IN LAW B Y THE ASSESSING OFFICER. 8. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES, MATERIAL ON RECORD AND THE ORDERS OF THE AUT HORITIES BELOW. IT IS NOTED THAT BELATED RETURNS FILED BY TH E ASSESSEE FOR THE ASSESSMENT YEARS 1997-98, 1998-99 AND 1999-00 H AVE BEEN TREATED BY THE ASSESSING OFFICER AS NON EST IN LAW AND SUCH RETURNS FILED IN THE BLOCK PERIOD AND THE INCO ME SHOWN THEREIN HAVE BEEN TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. AS PER SECTION 113 OF THE ACT, TAX LIABI LITY HAS BEEN COMPUTED. HOWEVER, CREDIT FOR TDS/ADVANCE TAX HAS NOT BEEN GIVEN WHICH IS APPARENTLY NOT CORRECT IN VIEW OF SP ECIFIC PROVISIONS OF LAW CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE BEFORE US. WITHOUT GOING INTO MUCH DETAIL, WE CONS IDER IT APPROPRIATE TO REFER ONLY TO THE PROVISIONS OF SECT ION 140-A OF THE ACT WHEREIN THE ASSESSEES LIABILITY TO PAY TA X BEFORE FURNISHING THE RETURN IS TO BE ARRIVED AT, AFTER TA KING INTO 5 CONSIDERATION THE TAX DEDUCTED AT SOURCE AND THE AD VANCE TAX PAID BY THE ASSESSEE. WE ARE FURTHER OF THE VIEW T HAT EVEN ON EQUITABLE CONSIDERATIONS, THE ASSESSEE IS ENTITLED TO GET CREDIT OF SUCH AMOUNTS. ACCORDINGLY, WE DIRECT THE ASSESSI NG OFFICER TO GRANT CREDIT OF TDS AND ADVANCE TAX TO THE ASSES SEE, AS CLAIMED BY THE ASSESSEE. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 31 ST MARCH, 2010 SD SD (JOGINDER SINGH) (V.K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER 31 ST MARCH, 2010 COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GUA RD FILE D/-