Smt. Damini A. Shah,, Surat v. The Income Tax Officer, Ward-3(3),, Surat

ITA 2705/AHD/2013 | 2005-2006
Pronouncement Date: 29-09-2016 | Result: Allowed

Appeal Details

RSA Number 270520514 RSA 2013
Assessee PAN APXPS3633K
Bench Ahmedabad
Appeal Number ITA 2705/AHD/2013
Duration Of Justice 2 year(s) 10 month(s) 8 day(s)
Appellant Smt. Damini A. Shah,, Surat
Respondent The Income Tax Officer, Ward-3(3),, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 29-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 29-09-2016
Date Of Final Hearing 12-08-2016
Next Hearing Date 12-08-2016
Assessment Year 2005-2006
Appeal Filed On 20-11-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH AHMEDABAD BEFORE SHRI RAJPAL YADAV JUDICIAL MEMBER ./ ITA.NO.2705/AHD/2013 / ASSTT. YEAR: 2005-2006 SMT.DAMINI A. SHAH C-GROUND FLOOR V/S. RAVI JYOTI APARTMENT GHOD DOD ROAD SURAT. PAN : APXPS 3633 K VS ITO WARD - 3(3) SURAT. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI M.R.SHAH AR REVENUE BY : SHRI SATISH SOLANKI SR.DR / DATE OF HEARING : 12/08/2016 / DATE OF PRONOUNCEMENT: 29/09/2016 $%/ O R D E R ASSESSEE IS IN APPEAL AGAINST ORDER OF THE LD.CIT(A )-IV SURAT DATED 13.09.2013 PASSED FOR THE ASTT.YEAR 2005-06. 2. IN THE FIRST GROUND OF APPEAL THE ASSESSEE HAS CHALLENGED REOPENING OF THE ASSESSMENT. 3. THE LD.COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET POINTED OUT THAT THE ASSESSEE HAS FILED RETURN OF INCOME ON 31.10.2005 D ECLARING A LOSS OF RS.1 21 730/-. AN ASSESSMENT ORDER WAS PASSED UNDE R SECTION 143(3) OF THE INCOME TAX ACT ON 28.12.2007. THE LD.AO HAS DETERM INED THE TAXABLE INCOME OF THE ASSESSEE AT NIL. HE MADE VARIOUS DIS ALLOWANCES AND SET OFF OF ITA NO.2705/AHD/2013 2 LOSS. HE PLACED ON RECORD COPY OF THE ASSESSMENT O RDER DATED 28.12.2007. HE TOOK US THE REASONS FOR REOPENING OF THE ASSESSMENT ORDER WHICH ARE AVAILABLE AT PAGE NO.1 OF THE PAPER BOOK. HE CONTENDED THAT IN THE REASONS NOWHERE THE AO HAS POINTED OUT THAT INCOME CHARGEABLE TO TAX HA S ESCAPED ON ACCOUNT OF FAILURE OF THE ASSESSEE TO DISCLOSE ALL MATERIAL FA CTS FULLY AND TRULY BY THE ASSESSEE. THEREFORE NOTICE ISSUED UNDER SECTION 1 48 OF THE ACT AFTER EXPIRY OF FOUR YEARS IS NOT SUSTAINABLE IN THE EYES OF LAW. ON THE OTHER HAND THE LD.DR RELIED UPON THE ORDERS OF THE REVENUE AUTHORITIES B ELOW. 4. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. THE REASONS RECORDED BY THE AO FOR REO PENING OF THE ASSESSMENT READ AS UNDER: REASONS FOR ISSUE OF NOTICE U/S.148 OF THE INCOME- TAX ACT 1961. NAME & ADDRESS OF THE ASSESSEE: . SMT. DAMINI AM IT SHAH C-GROUND FLOOR. RAVI JYOT APARTMENT OPP LOURDES CONVENT SCHOOL. GHOD DOD ROAD SURAT PA NO. : APXPS3633K A. Y. : 2005-06 IN THIS CASE RETURN OF INCOME FOR THE A.Y.2005-06 WAS FILED ON 3.1.10.2005 WITH RETURNED TOTAL INCOME AT RS.(-) 1 21 730/-. THEREAFTER VIDE ORDER U/S. 143(3) OF THE ACT DATED 28.12.2007 THE ASSESSMENT WAS FINALIZED AT RS.NIL. THE INTERNAL AUDIT PARTY HAS R AISED OBJECTION THAT ASSESSEE HAS NOT DEDUCTED TAX AT SOURCE FROM LATE P AYMENT INTEREST CHARGES AMOUNTING TO RS. 17 47 800/- RESULTED IN SH ORT LEVY OF LAX AMOUNTING TO RS.7 95 350/-. 2. ON VERIFICATION OF INCOME & EXPENDITURE ACCOUNT IT WAS NOTICED THAT THE ASSESSEE HAS CLAIMED LATE PAYMENT INTEREST CHAR GES AMOUNTING TO RS.17 47 800/-. ON VERIFICATION OF RECORD IT IS NO TICED THAT THE ASSESSOR HAS PAID RS.17 36 227/- TO KOTAK SECURITY & RS.11 5 73/- TO OTHER ITA NO.2705/AHD/2013 3 BROKER ON ACCOUNT OF LATE PAYMENT INTEREST. FURTHER THE ASSESSEE HAS FAILED TO DEDUCT TAX AT SOURCE ON THE SAID LATE PAY MENT INTEREST. ACCORDINGLY THE SAID CLAIM OF LATE PAYMENT INTERES T IS NOT ALLOWABLE U/S.40(A)(IA) IN THE ACT. THUS THERE IS AN UNDER A SSESSMENT OF INCOME BY RS. 17 47 800/- RESULTED IN SHORT LEVY OF TAX BY RS.7 95 350/- (APPROX) INCLUDING INTEREST LEVIABLE AS PER THE ACT . 3. IN VIEW OF THE ABOVE I HAVE REASONS TO BELIEVE THAT THE INCOME OF RS.17 47 800/- CHARGEABLE TO TAX HAS ESCAPED ASSESS MENT FOR A.Y. 2005-06 WITHIN THE MEANING OF SECTION 147 OF THE I. T. ACT 1961. THEREFORE THE CASE OF THE ASSESSEE REQUIRES TO BE REOPENED FOR THE A.Y. 2005-06. HENCE THE NOTICE U/S. 148 R.W.S. 147 OF T HE ACT IS ISSUED FOR THE A.Y. 2005-06. 5. ADMITTEDLY THE ASSESSMENT ORDER UNDER SECTION 1 43(3) WAS PASSED ON 28.12.2007. NOTICE UNDER SECTION 148 OF THE ACT HA S BEEN ISSUED UPON THE ASSESSEE ON 14.3.2012 I.E. AFTER THE END OF THE FOU R YEARS OF THE RELEVANT ASSESSMENT YEAR. THE NOTICE WITHIN FOUR YEARS COUL D BE SERVED UPON THE ASSESSEE ON OR BEFORE 31.3.2010. INTERDICTION AVAI LABLE IN THE PROVISO APPENDED TO SECTION 147 PUTS EMBARGO UPON POWERS OF THE AO TO ISSUE NOTICE UNDER SECTION 148 OF THE INCOME TAX ACT IN THE CASE S WHERE SCRUTINY ASSESSMENT WAS MADE UNDER SECTION 143(3) AND FOUR Y EARS HAVE EXPIRED FROM THE END OF THE RELEVANT ASSESSMENT YEARS. IN THESE CASES NOTICE UNDER SECTION 148 CANNOT BE ISSUED UNLESS IT IS ESTABLISHED THAT INCOME CHARGEABLE TO TAX HAS ESCAPED ON ACCOUNT OF FAILURE OF THE ASSESSEE TO DI SCLOSE ALL MATERIAL FACTS FULLY AND TRULY. A PERUSAL OF REASONS WOULD INDIC ATE THAT THE AO HAS NOWHERE LEVELED THIS ALLEGATION. THE AO HAS NOWHERE MADE R EFERENCE TO ANY MATERIAL WHICH HAS AUTHORIZED HIM TO HARBOR A BELIEF THAT IN COME HAS ESCAPED ASSESSMENT ON ACCOUNT NON-DISCLOSURE OF RELEVANT FA CTS FULLY AND TRULY AT THE END OF THE ASSESSEE. HE SIMPLY RE-APPRECIATED THE INCOME AND EXPENDITURE ACCOUNT WHICH MUST HAVE BEEN SUBMITTED AT THE TIME OF ORIGINAL ASSESSMENT. ITA NO.2705/AHD/2013 4 THEREFORE REOPENING OF THE ASSESSMENT IS NOT JUSTI FIABLE. I ALLOW FIRST GROUND OF APPEAL AND QUASH THE ASSESSMENT ORDER. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE COURT ON 29 TH SEPTEMBER 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 29/09/2016