MRS. LEELA CHANDRAN, V. THE ASSTT. CIT, CEN. CIRCLE-1(3),

MA 193/AHD/2008

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4341 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-03-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 02-09-2008
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V C MODI
• Assessee Lawyers: S N DIVETIA
• Keywords: Search and seizure; Salary income
• Section: 132; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI N.S. SAINI, A.M.) M.A. NO. 193/AHD./2008 (ARISING OUT OF I.T.(S.S.)A. NO. 378/AHD./2003) ASSESSMENT YEAR : BLOCK PERIOD 1989-1990 TO 1 998-1999 & UPTO 21.10.1999 MRS. LEELA CHANDRAN, AHMEDABAD -VS.- A SSISTANT COMMISSIONER OF INCOME TAX, (PAN : ACIPC 7042 G) CENTRAL CIRCLE-1(3), AHM EDABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.N. DIVETIA RESPONDENT BY : SHRI V.C. MODI, SR. D. R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE POINTING OUT THAT THERE IS MISTAKE APPARENT FROM THE RECORD IN PARA 13 OF THE DECISION DATED 28 .04.2006 OF THE ITAT, A BENCH, AHMEDABAD IN I.T.(S.S.)A. NO. 378/AHD./2003 FOR THE BLOCK ASSESS MENT PERIOD 1989-1990 TO 1998-1999 & UPTO 21.10.1999. 2. AT THE TIME OF HEARING, SHRI S.N. DIVETIA, LD. C OUNSEL APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE SEARCH AND SEIZURE OPERATION UND ER SECTION 132 OF THE ACT WAS CARRIED OUT ON 21.10.1999. FOR THE SAID ASSESSMENT YEAR, RETURN WA S NOT FILED BELATEDLY UNDER SECTION 139 OF THE INCO ME TAX ACT. THEREFORE, DUE DATE FOR FILING THE RETURN OF INCOME HAD NOT EXPIRED. HE FURTHER SUBMITTED THA T IN VIEW OF CLAUSE (D) OF SECTION 158BB(1), THE SAID SA LARY INCOME FROM ROC COULD NOT BE SAID TO BE THE UNDISCLOSED INCOME AND HENCE, THE SAME OUGHT TO HAV E BEEN EXCLUDED FROM THE COMPUTATION OF UNDISCLOSED INCOME OF THE BLOCK PERIOD. THE LD. COU NSEL OF THE ASSESSEE FURTHER SUBMITTED THAT IN THE MISCELLANEOUS APPLICATION THOUGH IT WAS POINTED OUT THAT THERE WAS MISTAKE IN RESPECT OF TWO ASSESSMEN T YEARS I.E. ASSESSMENT YEARS 1997-98 AND 1998-99, BU T PRAYER FOR RECTIFICATION OF THOSE YEARS IS NOT PR ESSED BECAUSE BEFORE CLAIMING THE REBATE UNDER SECTION 88 , THE INCOME WAS TAXABLE. 3. ON THE OTHER HAND, SHRI V.C. MODI, SR. D.R. APPE ARING ON BEHALF OF THE REVENUE VEHEMENTLY OPPOSED TO THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE. 2 MA NO. 193/AHD/2008 4. AFTER HEARING BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF MISCELLANEOUS APPLICATION AND THE EARLIER ORDER OF THIS TRIBUNAL DATED 28.04.2006. THE RELEVANT PARA 13 OF THE ORDER OF THIS TRIBUNAL DATED 28.04.2006 READS AS UNDER :- 13. SO FAR AS UNDISCLOSED INCOME FOR THE YEARS 199 7-98, 1998-99 & 2000- 01 IS CONCERNED, WE AFTER HAVING CONSIDERED THE FAC TS AND CIRCUMSTANCES OF THE CASE, ARE OF THE OPINION THAT THE ASSESSEE HAVING F URNISHED THE RETURN OF INCOME THOUGH, OF COURSE, U/S. 139(4) OF THE ACT, THE INCO ME DISCLOSED IN THOSE RETURNS COULD BE ASSESSED AS UNDISCLOSED INCOME. 4.1. IT IS PERTINENT TO NOTE THAT FOR THIS ASSESSME NT YEAR, THE ASSESSEE HAS NOT FILED THE RETURN OF I NCOME BELATEDLY UNDER SECTION 139 OF THE ACT, BECAUSE SEA RCH WAS CARRIED OUT DURING THE PREVIOUS YEAR RELEVA NT TO THE ASSESSMENT YEAR 2000-01, I.E. ON 21.10.1999. HENCE, THE DUE DATE FOR FILING THE RETURN OF INCOM E HAD NOT EXPIRED. APART FROM THIS, IN VIEW OF CLAUSE (D) OF SECTION 158BB(1), SALARY INCOME FROM ROC COULD NOT BE SAID TO BE THE UNDISCLOSED INCOME, FIRSTLY B ECAUSE THE DUE DATE OF FILING THE RETURN OF INCOME IS NOT EXPIRED, THEREFORE, THE SAME OUGHT TO HAVE BEEN EXC LUDED FROM THE COMPUTATION OF UNDISCLOSED INCOME OF THE BLOCK PERIOD. TO THIS EXTENT, THERE IS A MISTAK E APPARENT FROM THE RECORD WITHIN THE MEANING OF SE CTION 254(2) OF THE INCOME TAX ACT. THEREFORE, IN OUR OPI NION, IT WILL MEET THE END OF JUSTICE, IF PARA 13 O F THE TRIBUNALS ORDER DATED 28.04.2006 IS SUBSTITUTED WI TH THE FOLLOWING PARA :- 13. SO FAR AS UNDISCLOSED INCOME FOR THE YEAR 2000 -01 IS CONCERNED, WE AFTER HAVING CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, ARE OF THE OPINION THAT THE ASSESSEE HAS NOT FILED BELATED RET URN OF INCOME U/S. 139 OF THE ACT BECAUSE THE SEARCH WAS CARRIED OUT DURING THE P REVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR 2000-01, I.E. ON 21.10.1999. HENCE, THE DUE DATE FOR FILING THIS RETURN OF INCOME HAD NOT EXPIRED. WE ACCORDINGLY DI RECT THE ASSESSING OFFICER NOT TO TREAT THE SALARY INCOME FROM ROC AS UNDISCLO SED INCOME OF THE ASSESSEE. FOR THE OTHER TWO YEARS, I.E. ASSESSMENT YEARS 1997 -98 AND 1998-99, THE ASSESSEE HAS FURNISHED THE RETURN OF INCOME U/S. 13 9(4) OF THE INCOME TAX ACT. FOR BOTH THESE ASSESSMENT YEARS BEFORE CLAIMING REB ATE UNDER SECTION 88, THE INCOME OF THE ASSESSEE WAS TAXABLE. THEREFORE, INCO ME DISCLOSED IN THOSE RETURNS COULD BE ASSESSED AS UNDISCLOSED INCOME. 5. IN THE RESULT, FOR STATISTICAL PURPOSES, THE MIS CELLANEOUS APPLICATION FILED BY THE ASSESSEE IS TRE ATED AS PARTLY ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 05.03.20 10 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 05/ 03 / 2010 3 MA NO. 193/AHD/2008 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.