Dr.G.Arjundas, CHENNAI v. ACIT, CHENNAI

ITA 201/CHNY/2011 | 2006-2007
Pronouncement Date: 09-09-2011 | Result: Allowed

Appeal Details

RSA Number 20121714 RSA 2011
Assessee PAN AABPA4745M
Bench Chennai
Appeal Number ITA 201/CHNY/2011
Duration Of Justice 7 month(s)
Appellant Dr.G.Arjundas, CHENNAI
Respondent ACIT, CHENNAI
Appeal Type Income Tax Appeal
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 09-09-2011
Date Of Final Hearing 24-08-2011
Next Hearing Date 24-08-2011
Assessment Year 2006-2007
Appeal Filed On 09-02-2011
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI A BENCH CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. N.S. SAINI A .M. I.T.A. NO. 201/MDS/2011 ASSESSMENT YEAR: 2006-07 DR. G. ARJUNDAS 228-A KILPAUK GARDEN ROAD KILPAUK CHENNAI 600 010. [PAN:AABPA4745M] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX BUSINESS CIRCLE XIII CHENNAI (APPELLANT) (RESPONDENT) ASSESSEE BY : M/S. S. VENKATRAM & CO. C.A. REVENUE BY : SHRI SHAJI P. JACOB SR. DR DATE OF HEARING : 24.08.2011 DATE OF PRONOUNCEMENT 09.09.2011 ORDER PER U.B.S. BEDI J.M. THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. CIT(A) XII CHENNAI DATED 10.01.2011 RELEVANT TO TH E ASSESSMENT YEAR 2006-07 WHEREBY ACTION OF THE LD. CIT(A) IN HOLDING THAT TH E ASSESSEE IS NOT ENTITLED TO CREDIT OF TDS IN RESPECT OF RENT RECEIVED FROM ABN AMRO BA NK HAS BEEN CHALLENGED. 2. FACTS INDICATE THAT THE ASSESSEE HAD CLAIMED CR EDIT FOR TDS AMOUNTING TO ` .3 62 278/- IN THE RETURN OF INCOME AND THE ASSESSI NG OFFICER HAS ALLOWED CREDIT FOR TDS AMOUNTING TO ` .1 62 720/- IN RESPECT OF TDS MADE BY THE STATE BAN K OF INDIA EGMORE BRANCH CHENNAI WHILE PROCESSING THE RETURN OF INCOME UNDER SECTION 143(1) AND HAD NOT ALLOWED CREDIT FOR THE B ALANCE AMOUNTING TO ` .1 99 558/- FOR THE REASON THAT THE ASSESSEE HAD NOT SUBMITTED THE ORIGINAL TDS CERTIFICATE BEFORE THE ASSESSING OFFICER IN RESPECT OF THE SAID AMOUNT I.E. ` .1 99 558/-. I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.2 22 20 00 01/MDS/11 1/MDS/11 1/MDS/11 1/MDS/11 2 3. THE ASSESSEE PREFERRED APPEAL AGAINST THE ORDER OF THE ASSESSING OFFICER AND THE LD. CIT(A) AFTER CONSIDERING THE COPIES OF TDS CERTIFICATES FILED BEFORE HIM HAS CONCLUDED TO HELD FROM MIDDLE OF PAGE 2 TO 3 OF HIS ORDER AS UNDER: ON A PERUSAL OF THE COPIES OF THE TDS CERTIFICATES FILED IN THIS OFFICE IN RESPECT OF THE AMOUNT OF ` .1 99 558/- NOT CONSIDERED WHILE PROCESSING THE RETURN OF INCOME U/S 143(1) BY THE ASSESSING OFFICER IT IS SEEN THAT THIS AMOUNT COMPRISES TDS DEDUCTED BY TWO PARTIES (I) M/S. ABN AMRO BANK ` .92 670/- AND (II) M/S. PANTALOON RETAIL (INDIA) LIMITED ` .1 06 888/-. WITH REGARD TO THE TDS MADE AND REMITTED INTO GOVER NMENT OF INDIA A/C. BY M/S. ABN AMRO BANK IT IS SEEN THAT THE PAN NUMBER OF THE 'PAYEE' AS MENTIONED IN THE TDS CERTI FICATES IS AAAHG0142G AND THE NAME AND ADDRESS OF THE PERSON T O WHOM PAYMENT IS MADE OR IN WHOSE ACCOUNT IT IS CREDITED IS SHOWN AS 'DR. G. ARJUNDAS & DR. G. DEEPAK ARJUNDAS'. THUS THIS G OES TO PROVE THAT THE TDS CERTIFICATE ISSUED BY M/S. ABN AMRO BANK WAS ON ACCOUNT OF PAYMENT MADE TO THE PROPERTY RENTED TO T HEM IN THE 'HUF' CAPACITY OF THE APPELLANT AND OR BY HIS SON. HENCE THE APPELLANT IS NOT ELIGIBLE FOR THE CLAIM OF TDS IN R ESPECT OF M/S. ABN AMRO BANK AS MENTIONED IN THE GROUNDS OF APPEAL. HOWEVER REGARDING THE CLAIM OF TDS CERTIFICATE ISS UED BY M/S. PANTALOON RETAIL (INDIA) LIMITED OUTLET OCCUP YING THE ASSESSEES PROPERTY ON PANTHEON ROAD I HOLD THAT T HE APPELLANT IS ELIGIBLE FOR THE CLAIM OF TDS IN RESPECT OF THIS PARTY FOR THE REASON THAT THE APPELLANT HAD PRODUCED COPY OF THE TDS CER TIFICATE BEFORE THE UNDERSIGNED AND HAD CONTENDED THAT THE APPELLAN T HAD FURNISHED THE ORIGINAL CERTIFICATE BEFORE THE ASSES SING OFFICER ALONG WITH THE RETURN OF INCOME. HOWEVER THE REPOR T OF THE ASSESSING OFFICER NEEDS TO BE CONSIDERED IN VIEW OF THE FACT THAT THE APPELLANT HAD FILED ONLY THE COPIES OF THE CERT IFICATE ALONG WITH THE RETURN OF INCOME. UNDER THE ABOVE CIRCUMSTANCES THE CLAIM OF THE APP ELLANT IN RESPECT OF TDS MADE BY M/S. PANTALOON RETAIL (IN DIA) LIMITED MUMBAI IS TO BE CONSIDERED DUE TO THE FACT THAT THE SAID RETAIL COMPANY IS OCCUPYING THE PREMISES OF THE APPELLANT ON PANTHEON ROAD FOR ITS RETAIL OUTLET AND THEY HAVE ISSUED THE CERTIFICATE QUOTING THEIR PAN/TAN AND HENCE THE ASSESSING OFFI CER IS DIRECTED TO ALLOW THE CLAIM OF TAX DEDUCTED AT SOUR CE MADE BY M/S. PANTALOON RETAIL (INDIA) LIMITED MUMBAI AND R EVISE THE IMPUGNED ORDER ACCORDINGLY. IN THIS CONNECTION THE ASSESSING I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.2 22 20 00 01/MDS/11 1/MDS/11 1/MDS/11 1/MDS/11 3 OFFICER IS ALSO DIRECTED TO OBTAIN AN INDEMNIFICATI ON BOND BEFORE CONSIDERING THE TDS IN RESPECT OF THIS PARTY. THUS THE APPELLANT PARTLY SUCCEEDS IN HIS APPEAL. 4. STILL AGGRIEVED THE ASSESSEE CAME IN APPEAL A ND WHILE REITERATING THE SUBMISSIONS AS MADE BEFORE THE LOWER AUTHORITIES I T WAS PLEADED FOR GIVING CREDIT OF TDS. 5. THE LD. DR WHILE OPPOSING THE PLEA AS RAISED BE FORE THE LOWER AUTHORITIES HAS FURTHER PLEADED THAT THE APPEAL OF THE ASSESSEE BEFORE THE LD. CIT(A) WAS ALSO NOT MAINTAINABLE BECAUSE THE APPEAL BY THE ASSESSEE HAS BEEN FILED AGAINST THE INTIMATION UNDER SECTION 143(1). AFTER 1 ST JUNE 1999 THE ASSESSING OFFICER HAS NO POWER TO MAKE ANY ADJUSTMENT TO THE RETURNED INCOME AND CAN ONLY COMPUTE TAX AND INTEREST BASED ON THE INCOME RETURNED. IF THE A SSESSEE HAS ANY GRIEVANCE AGAINST ANY WRONG ACTION ON THE PART OF THE ASSESSI NG OFFICER THE INTIMATION ISSUED UNDER SECTION 143(1) HE CAN SEEK FURTHER REMEDIES OPEN UNDER LAW INCLUDING RECTIFICATION BUT NOT BY MAKING SUBSEQUENT CLAIM I N APPEAL UNDER SECTION 246 OF THE INCOME TAX ACT BEFORE THE LD. CIT(A) SO WHEN I NTIMATION UNDER SECTION 143(1) IS NOT APPEALABLE SO ANY DIRECTION PASSED IN APPEA L IS NOT TENABLE IN LAW. THEREFORE ON THIS SCORE ALONE THE APPEAL OF THE AS SESSEE IS LIABLE TO BE DISMISSED. WITHOUT PREJUDICE TO THIS IT WAS PLEADED THAT THE ORDER OF THE LD. CIT(A) IS PROPER AND JUSTIFIED AS PROPER BASIS AND REASONING HAVE BE EN GIVEN NOT TO ACCEPT THE PLEA RAISED BY THE ASSESSEE. THEREFORE IN ANY CASE THE APPEAL OF THE ASSESSEE IS LIABLE TO BE DISMISSED WHICH MAY BE DISMISSED. THE LD. DR HAS ALSO RELIED UPON THE H BENCH DECISION OF ITAT MUMBAI IN THE CASE OF DCIT V. HOUSING DEVELOPMENT FINANCE CORPORATION LTD. IN ITA NO. 399 /MDS/2009 FOR THE I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.2 22 20 00 01/MDS/11 1/MDS/11 1/MDS/11 1/MDS/11 4 ASSESSMENT YEAR 2006-07 VIDE ORDER DATED 08.10.2010 REPORTED IN [2011] 51 DTR (MUM.)(TRIB) 138 TO SUPPORT THE PLEA THAT THE APPEA L IS NOT MAINTAINABLE AGAINST INTIMATION UNDER SECTION 143(1). 6. IN ORDER TO COUNTER THE SUBMISSIONS OF THE LD. DR THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DEPARTMENT HAS NOT CAME UP IN APPEAL NOR ANY CO HAS BEEN FILED IN RESPECT OF THE INTIMATION ABOUT F ILING OF APPEAL BY THE ASSESSEE BEFORE THIS BENCH SO THE PLEA OF THE REVENUE ABOUT NON-MAINTAINABILITY OF THE APPEAL BEFORE THE LD. CIT(A) IS NOT JUSTIFIED. AS R EGARDS THE ISSUE ON MERITS IS CONCERNED THE BASIS AND REASONING AS GIVEN BY THE LD. CIT(A) TO DENY THE CREDIT OF TDS PAID IS NEITHER LEGAL NOR JUSTIFIED IN VIEW OF THE FACTS AND CIRCUMSTANCES THEREFORE THE APPEAL OF THE ASSESSEE SHOULD BE ACC EPTED TO PASS FURTHER FAVOURABLE DIRECTION. 7. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERI NG THE MATERIAL ON RECORD AS WELL AS DECISION OF ITAT MUMBAI H BENCH IN THE CA SE OF DCIT V. HOUSING DEVELOPMENT FINANCE CORPORATION LTD. (SUPRA) WE FI ND THAT AS PER EXISTING PROVISIONS THE APPEAL AGAINST INTIMATION UNDER SEC TION 143(1) BEFORE THE LD. CIT(A) IS NOT PROVIDED BUT THIS HAS NOT BEEN CONSIDERED A ND DECIDED BY THE LD. CIT(A). SINCE MAINTAINABILITY OF THE APPEAL IS A LEGAL ISSU E WHICH HAS BEEN AGITATED BY THE LD. DR FOR THE FIRST TIME BEFORE US THEREFORE IT WOULD BE JUST AND APPROPRIATE TO SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORE THE M ATTER BACK ON HIS FILE WITH THE DIRECTION TO REDECIDE THE APPEAL AFRESH AFTER CONSI DERING THE DEPARTMENTS OBJECTION AS WELL AS RELIANCE PLACED IN THE CASE OF DCIT V. HOUSING DEVELOPMENT FINANCE CORPORATION LTD.(SUPRA) ABOUT MAINTAINABILI TY OF THE APPEAL IN THE LIGHT OF I II I.T.A. NO. .T.A. NO. .T.A. NO. .T.A. NO.2 22 20 00 01/MDS/11 1/MDS/11 1/MDS/11 1/MDS/11 5 RELEVANT PROVISIONS OF LAW AFTER GIVING DUE OPPORTU NITY TO THE ASSESSEE AS WELL AS TO THE ASSESSING OFFICER. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 09.09.2011 SD/- SD/- (N.S. SAINI) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI DATED THE 09.09.2011 VM/- TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.