Assistant Commissioner of Income-tax, Circle-6(3)(1), Bangalore V. Smt.V.Sabitha, Bangalore

MA 49/BANG/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6748 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-06-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained investment; Revised return

Judgement Text

MP.49/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER MISC. PETTION NO.49/BANG/2018 (IN I.T.A NO.2067/BANG/2016) (ASSESSMENT YEAR : 2005-06) ASST. COMMISSIONER OF INCOME-TAX, CIRCLE -6(3)(1), BENGALURU .. APPELLANT V. SMT. V. SABITA, NO.88, KAVALBYRASANDRA, R. T. NAGAR POST, BENGALURU 560 032 .. RESPONDENT PAN : AKFPS1909R ASSESSEE BY : SHRI. RAGHAVENDRA CHAKRABORTHY, CA REVENUE BY : SMT. PADMAMEENAKSHI, JCIT HEARD ON : 08.06.2018 PRONOUNCED ON : 12.06.2018 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THIS MISCELLANEOUS PETITION IS FILED BY THE REVENU E SEEKING RECALL OF THE ORDER PASSED BY THE TRIBUNAL ON 11.08 .2017. 02. IT WAS THE CASE OF THE REVENUE BEFORE US THAT T HE ASSESSEE HAS PURCHASED THE PROPERTY WORTH RS.79,52,000/- IN THE ASSESSMENT YEAR MP.49/BANG/2018 PAGE - 2 UNDER CONSIDERATION AND HAS NOT DISCLOSED ANY DETAI L PERTAINING TO PURCHASE OF THE PROPERTY DURING THE COURSE OF ASSES SMENT PROCEEDINGS AND ACCORDINGLY THE AMOUNT OF RS.79,52, 000/- WAS ADDED U/S.69 OF THE ACT TREATING IT AS UNEXPLAINED INVESTMENT. 03. ON APPEAL BY THE ASSESSEE BEFORE THE CIT (A), R ELIEF WAS GRANTED BASED ON THE REMAND REPORT SUBMITTED BY AO, WHEREIN IT WAS MENTIONED THAT THE REVISED RETURN OF INCOME WAS FILED BY THE ASSESSEE, BEFORE PASSING OF ASSESSMENT ORDER. 04. THE LD. DR BEFORE US HAS SUBMITTED BEFORE US, THAT THE SAME STAND (REVISED RETURN OF INCOME WAS FILED BY THE AS SESSEE, BEFORE PASSING OF ASSESSMENT ORDER ) WAS TAKEN BY THE ASSE SSEE/ AR BEFORE THE TRIBUNAL AT THE TIME OF ARGUMENT / PASSING OF T HE ORDER AND CONSIDERED THE REPLY SUBMITTED BY THE ASSESSEE AND THE FINDING RECORDED BY THE CIT (A) IN THE ORDER. THE TRIBUNAL HAS DISMISSED THE APPEAL FILED BY THE REVENUE AS THERE WAS NO CAU SE OF ACTION FOR FILING APPEAL BEFORE THE TRIBUNAL, AS THE RELIEF WA S GRANTED BY THE CIT, BASED ON REMAND REPORT ONLY. IT WAS POINTED OUT BY THE LD. DR FROM RECORD, THAT THE REVISED RETURN, AS PER THE REMAND REPORT MENTIONED IN THE O RDER OF THE CIT (A) AND BEFORE THE TRIBUNAL WAS FILED ON 24.03.2007 WHEREAS ACTUALLY IT WAS FILLED ON 17.3.2008 . THEREFORE AO HAD RIGHTLY PASSED ASSESSMENT ORDER ON 31.12.2007, U/S.144 OF T HE ACT, AND NON-CONSIDERATION OF THE REVISED RETURN BY THE AO I S IN ACCORDANCE WITH LAW. SHE FURTHER SUBMITTED THAT TAX ON REVI SED RETURN WAS DEPOSITED ONLY ON 17.03.2008, THEREFORE THERE CANNO T BE ANY MP.49/BANG/2018 PAGE - 3 OCCASION FOR THE ASSESSEE TO FILE THE REVISED RETUR N ON 24.03.2007 I.E., PRIOR TO DEPOSIT OF TAX, AS MENTIONED BY CIT OR IN ITAT ORDER. THEREFORE IT WAS SUBMITTED THAT ERROR HAS CREPT INT O THE RECORD AND THEREFORE THE DECISION OF THE TRIBUNAL IS REQUIRED TO BE RECALLED. 05. PER CONTRA THE LD. AR CONCEDED THAT THE TAX WAS DEPOSITED ON 17.03.2008 AND NOT ON 24.03.2007 AS MENTIONED BY TH E CIT (A) AND THE TRIBUNAL IN THEIR ORDERS. THEREFORE THERE WAS NO OCCASION TO FILE THE REVISED RETURN ON 24.03.2007. 06. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. ADMITTEDLY THE ORDER WAS PASSED BY THE AO U/S.144 O F THE ACT ON THE BASIS OF THE RETURN OF INCOME FILED BY THE ASSE SSEE AND NO OTHER DOCUMENTS WERE FILED EXPLAINING THE INVESTMENT MADE BY THE ASSESSEE. FURTHER CIT (A) PASSED APPELLATE ORDER ON THE BASIS OF THE REMAND ORDER OF THE AO AND HAS ALLOWED THE CLAIM OF THE ASSESSEE, UNDER THE ASSUMPTION THAT REVISED RETURN WAS FILED ON 24.03.2007 AND THE SAME WAS NOT CONSIDERED BY THE AO AT THE TI ME OF MAKING THE FINAL ASSESSMENT. AS THERE IS NO CAVIL BETWEEN THE PARTIES WITH RESPECT TO FILING OF THE REVISED RETURN WHICH WAS A DMITTEDLY FILED ON 17.03.2008 AND THEREFORE THERE WAS NO OCCASION FOR AO TO CONSIDER IT IN ASSESSMENT ORDER. AS THE BASIS OF THE ORDER OF THE CIT (A) AND TRIBUNAL, HINGES ON FILING OF THE REVISED RETURN PRIOR TO CONCLUSION OF THE ASSESSMENT PROCEEDINGS ON 24.03.2007, WAS I NCORRECT AND AGAINST THE FACTS, AS REVISED RETURN WAS FILED ON 1 7.03.2008 AND THEREFORE IN THE OPINION OF THE BENCH, ERROR CREPT INTO THE ORDER OF THE TRIBUNAL. ACCORDINGLY THE ORDER OF THE TRIBUNA L, DT.11.08.2017 IS RECALLED. REGISTRY IS DIRECTED TO FIX THE MATTE R FOR HEARING IN DUE MP.49/BANG/2018 PAGE - 4 COURSE OF TIME. LET APPEAL OF THE REVENUE BE HEARD DENOVO CONSIDERING THE REVISED RETURN FILED ON 17.03.2008 AND NOT ON 24.03.2007. 07. IN THE RESULT, MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH DAY OF JUNE, 2018. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBER BENGALURU DATED : 12.06.2018 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.