Sargam Construction Pvt.Ltd.,, Surat v. The ACIT., Circle-4,, Surat

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI D.C. AGRAWAL A.M.) I.T.A. NO. 357/AHD./2007 ASSESSMENT YEAR : 1999-2000 SARGAM CONSTRUCTIONS PVT. LTD. SURAT -VS.- ASS ISTANT COMMISSIONER OF INCOME TAX (PAN : AADCS 3947 C) CIRCLE-4 SURAT (APPELLANT) (RESPONDE NT) APPELLANT BY : SHRI HARDIK VORA C.A. RESPONDENT BY : SHRI ANAND MOHAN SR . D.R. O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER DATED 27.11.2006 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-III SURAT CONF IRMING THE ACTION OF ASSESSING OFFICER REJECTING THE APPLICATION OF THE ASSESSEE UNDER SEC TION 154 FOR CLAIM OF ENHANCE REFUND FILED FOR THE ASSESSMENT YEAR 1999-2000. 2. BRIEFLY STATED THE FACTS ARE THAT THE ASSESSEE I S A COMPANY. FOR THE ASSESSMENT YEAR UNDER APPEAL IT FILED THE RETURN OF INCOME ON 28.12.1999 DECLARING TOTAL INCOME OF RS.33 79 589/-. SUBSEQUENTLY INTIMATION UNDER SECTION 143(1) WAS S ENT TO THE ASSESSEE ISSUING REFUND OF RS.25 271/-. THEREAFTER THE ASSESSEE FILED A REVIS ED RETURN ON 29.12.2000 WHEREIN IT CLAIMED REFUND OF RS.1 15 357/-. SUBSEQUENTLY VIDE LETTER D ATED 17.06.2002 ADDRESSED TO THE THEN ASSESSING OFFICER THE ASSESSEE REQUESTED TO ISSUE REFUND AS PER REVISED RETURN OF INCOME. AGAIN THE ASSESSEE SUBMITTED A LETTER DATED 20.06.2003 AD DRESSED TO ASSESSING OFFICER TO ISSUE THE REFUND. THEREAFTER THE THEN A.O. VIDE LETTER DATED 12.05.2004 REJECTED THE REQUEST OF THE ASSESSEE STATING THAT REVISED RETURN OF INCOME WAS FILED BEY OND THE DATE OF COMPLETION OF ASSESSMENT. ON RECEIPT OF THIS LETTER THE ASSESSEE VIDE LETTER DA TED 20.08.2004 REQUESTED THE A.O. TO CONSIDER THE REVISED RETURN OF INCOME AND ISSUE REFUND ACCORDING LY HOLDING THAT INTIMATION UNDER SECTION 143(1) DOES NOT CONSTITUTE AN ASSESSMENT ORDER. AGA IN THE ASSESSEE MOVED AN APPLICATION UNDER SECTION 154 FOR RECTIFICATION OF MISTAKE APPARENT F ROM THE RECORD. THIS APPLICATION OF ASSESSEE WAS REJECTED BY THE A.O. ON ACCOUNT OF THE FOLLOWIN G REASONS :- 2 ITA NO. 357/AHD/2007 (1) ASSESSEE FAILED TO MOVE APPLICATION U/S. 154 O F THE ACT WITHIN THE STATUTORY TIME LIMIT OF 4 YEARS FROM THE END OF TH E F.Y. IN WHICH RETURN OF INCOME WAS FILED. ASSESSEE FILED APPLICATION U/S. 1 54 OF THE ACT ONLY ON 12.05.2005. (2)WITHOUT PREJUDICE TO THE ABOVE WHEN THE A.O. HA S REJECTED THE APPLICATION VIDE LETTER DATED 12.05.2006 TREATING THE APPLICATION AS MOVED U/S. 154 THE ASSESSEE DID NOT PREFER AN APPEAL AGA INST THE REJECTION. AGGRIEVED WITH THE ORDER OF A.O. REJECTING THE APPL ICATION UNDER SECTION 154 THE ASSESSEE FILED AN APPEAL BEFORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). DURING THE COURSE OF HEARING BEFORE THE LEARNED COMMISSIONER OF INCOME T AX(APPEALS) THE ASSESSEE CONTENDED THAT APPLICATION UNDER SECTION 154 WAS FILED IN TIME. IT WAS FURTHER CONTENDED THAT ON EARLIER OCCASION THE A.O. WRONGLY TREATED THE APPLICATION OF THE ASSESSEE AS PETITION UNDER SECTION 154 THEREFORE THE ASSESSEE DID NOT PREFER AN APPEAL SI NCE HE WAS NOT KNOWING EXACT NATURE OF THE ORDER OF A.O. 3. AFTER CONSIDERING THE VARIOUS SUBMISSIONS OF THE ASSESSEE IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) UPHELD THE ACTION OF ASSESSING OFFICER FOR THE DETAILED REASONS GIVEN IN THE IMPUGNED ORDER WHICH READS AS UNDER :- I HAVE GONE THROUGH THE ORDER AND THE SUBMISSIONS. HOWEVER I DO NOT AGREE WITH THE APPELLANT THAT HE DID NOT KNOW ABOUT THE EXACT NATURE OF THE ORDER SINCE IT WAS IN A LETTER FORM. THIS LETTE R BY THE A.O. WAS IN RESPONSE TO APPELLANTS LETTER FOR CORRECTION OF A MISTAKE IN THE ASSESSMENT ORDER WHICH WAS REJECTED BY THE A.O. AND THERE IS NO PROVISION IN THE I.T. ACT OTHER THAN SECTION 154 OF THE ACT UNDER WHICH SUCH A LETTER IS TO BE ISSUED BY THE A.O. WHICH OBV IOUSLY MEANS THAT THE SAID LETTER WAS AN ORDER U/S. 154 OF THE ACT. THERE FORE THE APPELLANTS CLAIM THAT HE DID NOT KNOW ABOUT THE EXACT NATURE O F THIS ORDER IS BASELESS. IT IS ALSO SEEN THAT NO APPEAL AGAINST TH AT ORDER WAS FILED BY THE APPELLANT AND THEREFORE MOVING ANOTHER APPLICATION U/S. 154 OF THE ACT BEYOND THE TIME LIMIT COULD NOT BE ALLOWED AS PER P ROVISIONS OF SECTION 154 OF THE ACT. FURTHER THE APPELLANTS SUBMISSION THAT THE ORDER U/S. 154 OF THE ACT WAS NOT PASSED WITHIN SIX MONTHS OF THE END OF THE MONTH IN WHICH THE APPLICATION WAS RECEIVED THE RECTIFICATI ON APPLICATION WOULD BE DEEMED TO HAVE BEEN ACCEPTED ALSO IS NOT CORRECT SINCE SUCH A 3 ITA NO. 357/AHD/2007 DEEMING PROVISION IS NOWHERE MENTIONED IN THE SAID SECTION AND SUCH AN ORDER PASSED AFTER SIX MONTHS DOE NOT MEAN THAT IT IS BARRED BY LIMITATION. THE INCOME TAX ACT SPECIFICALLY PRESCRIBES SITUATI ONS WHEREVER THE LIMITATION APPLIES TO THE ACT OF COMMISSION OR OMIS SION ON THE PART OF THE A.O. NO SUCH LIMITATION PERIOD IS SPECIFICALLY MENT IONED IN SECTION 154 OF THE ACT AND THEREFORE THIS SUBMISSION OF THE APPEL LANT IS WITHOUT ANY MERITS. IN VIEW OF THIS I HOLD THAT THE A.OS ACTI ON IN REJECTING THE APPLICATION WAS IN ORDER AND THE GROUND OF APPEAL F AILS. 4. AGGRIEVED WITH THIS ORDER OF LEARNED COMMISSIONE R OF INCOME TAX(APPEALS) THE ASSESSEE IS IN APPEAL BEFORE US. 5. AT THE TIME OF HEARING BEFORE US ON BEHALF OF A SSESSEE SHRI HARDIK VORA C.A. APPEARED AND CONTENDED THAT REVISED RETURN OF INCOME WAS FIL ED IN TIME. THE BOOKS OF ACCOUNTS OF THE ASSESSEE WERE AUDITED UNDER SECTION 44AB. THE ASSES SEE BEING A COMPANY DUE DATE FOR FILING THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 1999-2 000 WAS EXTENDED UPTO 31 ST DECEMBER 1999 VIDE C.B.D.T. ORDER F. NO. 220/1/99/IT(A-II) DATED 17.11.1999. THE SAID ORDER READS AS UNDER :- IN EXERCISE OF THE POWERS CONFERRED UNDER CLAUSE ( A) OF SUB-SECTION (2) OF SECTION 119 OF THE INCOME TAX ACT 1961 THE CENTRA L BOARD OF DIRECT TAXES HEREBY SPECIFIES THE DUE DATE IN TERMS OF CLAUSE (A ) AND SUB-CLAUSE (I) OF CLAUSE (B) OF EXPLANATION 1 UNDER SUB-EXPLANATION ( II) UNDER SECTION 44AB AS :- (I) 31 ST DECEMBER 1999 FOR THE ASSESSMENT YEAR 1999-2000 IN RESPECT OF ASSESSEES OTHER THAN THOSE WHOSE PRINCIP AL PLACE OF BUSINESS OR PROFESSION IS SITUATED IN THE STATE OF ORISSA. (II) 29 TH FEBRUARY 2000 FOR THE ASSESSMENT YEAR 1999-2000 IN RESPECT OF THOSE ASSESSEES WHOSE PRINCIPAL PLACE OF BUSINESS OR PROFESSION IS SITUATED IN THE STATE OF ORISSA. THE LD. COUNSEL OF THE ASSESSEE FURTHER EXPLAINED T HAT THE ASSESSEE HAS FILED ONLY ONE APPLICATION UNDER SECTION 154 OF THE INCOME TAX ACT. SINCE NO A CTION HAS BEEN TAKEN BY A.O. ON THE REVISED RETURN OF INCOME IT IS DEEMED TO BE ACCEPTED BECAU SE THE SAID RETURN WAS FILED IN TIME. IN THESE CIRCUMSTANCES THE LD. COUNSEL OF THE ASSESSEE SUBM ITTED THAT THE A.O.BE DIRECTED TO RECTIFY HIS INTIMATION UNDER SECTION 143(1) DATED 12.05.2004 AN D DIRECT HIM TO ISSUE THE REFUND DUE AS PER REVISED RETURN OF INCOME. 6. ON THE OTHER HAND SHRI ANAND MOHAN SR. D.R. AP PEARING ON BEHALF OF REVENUE SUPPORTED THE ORDER OF AUTHORITIES BELOW. 4 ITA NO. 357/AHD/2007 7. WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUT HORITIES BELOW AND PERUSED THE MATERIAL PLACED BEFORE US. ADMITTEDLY THE DUE DATE OF FILIN G THE RETURN OF INCOME IN CASE ASSESSEE (COMPANY) WAS EXTENDED UPTO 31 ST DECEMBER 1999 VIDE C.B.D.T. ORDER F. NO. 220/1/99 /IT(A- II) DATED 17.11.1999 (SUPRA). ON THE BASIS OF ORIGI NAL RETURN ONLY INTIMATION WAS ISSUED. IN CASE AFTER INTIMATION REVISED RETURN IS FURNISHED WHIC H IS WELL WITHIN TIME PRESCRIBED UNDER SECTION 139(5) OF THE ACT THEN A.O. CANNOT IGNORED THE REV ISED RETURN. THE REVISED RETURN WAS FILED ON 29.12.2000. NO NOTICE UNDER SECTION 143(2) WAS ISSU ED BY THE A.O. ON THE BASIS OF REVISED RETURN FURNISHED ON 29.12.2000. IN THESE CIRCUMSTANCES IT CAN BE SAFELY PRESUMED THAT THE REVISED RETURN OF INCOME IS ACCEPTED. ONCE THE REVISED RETURN OF I NCOME IS ACCEPTED THE A.O. HAS NO OPTION BUT TO ISSUE THE REFUND DUE TO THE ASSESSEE. PRIMA FACI E IT APPEARS THAT BY WRITING VARIOUS LETTERS THE ASSESSEE WAS REQUESTING THE A.O. TO ISSUE THE REFUN D DUE TO THE ASSESSEE. WE THEREFORE SET ASIDE THE IMPUGNED ORDER OF LEARNED COMMISSIONER OF INCOM E TAX(APPEALS) AND DIRECT THE ASSESSING OFFICER TO VERIFY WHETHER ANY ACTION IS TAKEN ON TH E REVISED RETURN WHICH WAS FILED WITHIN THE DUE DATE OF FILING THE RETURN OF INCOME. IN CASE N O ACTION HAS BEEN TAKEN IN THAT EVENT IT SHOULD BE PRESUMED THAT REVISED RETURN IS ACCEPTED. A.O. W ILL ACCORDINGLY DETERMINE THE REFUND DUE AND GRANT THE SAME TO THE ASSESSEE IN ACCORDANCE WITH L AW. 8. IN THE RESULT FOR STATISTICAL PURPOSE THE APPE AL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 16.04.2010 . SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 / 04 /2010 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.