Manibhai Somabhai Parmar, Nadiad v. The Income tax Officer,Ward-4,, Nadiad

ITA 503/AHD/2010 | 2001-2002
Pronouncement Date: 23-07-2010 | Result: Allowed

Appeal Details

RSA Number 50320514 RSA 2010
Assessee PAN ABIPC7265Q
Bench Ahmedabad
Appeal Number ITA 503/AHD/2010
Duration Of Justice 5 month(s) 7 day(s)
Appellant Manibhai Somabhai Parmar, Nadiad
Respondent The Income tax Officer,Ward-4,, Nadiad
Appeal Type Income Tax Appeal
Pronouncement Date 23-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 23-07-2010
Assessment Year 2001-2002
Appeal Filed On 15-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH SMC BEFORE SHRI SHRI N.S.SAINI ACCOUNTANT MEMBER DATE OF HEARING :16-7-10 DRAFTED ON: 1 6-7-10 ITA NO.501/AHD/2010 ASSESSMENT YEAR :2001-02 SHRI RATHOD RAMESHBHAI DAUDBHAI C/O.PARMAR RAMESHBHAI DAUDBHAI 9- JAYPRAKASH SOCIETY VAISHALI CINEMA ROAD INDIRANAGAR NADIAD-387002. VS. INCOME TAX OFFICER WARD-4 I.T. OFFICE STATION ROAD NADIAD-387 002. PAN/GIR NO. :ABIPC 7265 Q (APPELLANT) .. (RESPONDENT) ITA NO.502/AHD/2010 ASSESSMENT YEAR :2001-02 SHRI PARMAR MADHUBEN AMBALAL E-17 XAVIERS PARK OPP.INDIRANAGAR NADIAD-387002. VS. INCOME TAX OFFICER WARD 4 I.T.OFFICE STATION ROAD NADIAD-387002. PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) ITA NO.503/AHD/2010 ASSESSMENT YEAR :2001-02 SHRI PARMAR MANIBHAI SOMABHAI 46 HARI OHM NAGAR COLLEGE ROAD NADIAD. VS. INCOME TAX OFFICER WARD-4 INCOME TAX OFFICE STATION ROAD NADIAD. PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) - 2 - APPELLANT BY : SHRI S.P. BHATT. RESPONDENT BY: SHRI B.D. BAROT D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THESE APPEALS ARE FILED BY THE ASSESSEE AGAINST TH E SEPARATE ORDERS OF THE LEARNED COMMISSIONER OF INCOME TAX(AP PEALS)-IV BARODA DATED 10-12-2009. 2. IN ALL THESE APPEALS COMMON GROUNDS OF APPEAL AR E TAKEN WHICH READS AS UNDER :- 1. THAT THE LD. C.I.T.(A)-IV BARODA ERRED IN LAW AND FACTS OF THE CASE AGREEING WITH THE CONCLUSION OF T HE LD. A.O. THAT THE MISTAKE ALLEGED TO BE APPARENT ON REC ORDS WAS NOT DEBATABLE. 2. TAXABILITY COULD NOT HAVE BEEN DECIDED ON MERE S ALARY CERTIFICATE IN FORM NO.16 AS THE SAME WAS ISSUED ON THE BASIS OF PARTICULARS AS PER RECORDS OF THE EMPLOYER COMPANY VIZ. GE(LIGHTING) PVT. LTD. NADIAD WHEN AL L THE OTHER EVIDENCES WERE SUBMITTED TO SHOW THAT CLAIM O F EXEMPTION RS.1 30 000/- WAS IN THE NATURE OF COMPENSATION. 3. SIMILAR ISSUE WAS RAISED IN ITA NO.2309/AHD/2006 & ITA NO.2730/AHD/2004 IN THE CASE OF CHAUHAN JAYANTIBHAI RAMBHAI VS. ITO AND PATEL GHANSHYAMBHAI RATIBHAI VS . ITO AND THE LD. JUDGES OF THE BENCH HAS DECIDED THE FACTS AND ALLOWED APPEALS IN THOSE CASES (COIPES ENCLOSED). - 3 - 4. COPY OF RECTIFICATION APPLICATION DT.16-8-2003 W AS ACCOMPANIED BY STATEMENT OF INCOME AND LIABILITY AN D THE STATEMENT SHOWING NET AMOUNT OF VOLUNTARY RETIREMENT SCHEME FROM WHICH IT WAS CLEAR THAT THE CLAIM WAS GENUINE AND THE SAME WAS IN THE NATURE OF MISTAKE APPARENT ON RECORDS IN THE CASE OF THE PETITIONER. 5. THE PETITIONER WAS NOT IN KNOW OF INCOME-TAX MAT TERS AND ALSO ILLITERATE PERSON AND FAILED TO CLAIM EXEM PTION IN THE RETURN OF INCOME WHICH WAS PREPARED UNDER TH E GUIDELINES OF THEN TAX ADVISOR AND THAT THE CLAIM O F REFUND WAS EXCESS TDS MADE UNDER THE PROVISIONS OF THE ACT WHICH WAS NOT REQUIRED TO DO. 3. SINCE IN ALL THESE APPEALS THE FACTS AND ISSUE I NVOLVED ARE COMMON THEY ARE BEING DISPOSED OF BY THIS CONSOLIDA TED ORDER AS UNDER. 4. THE BRIEF FACTS ARE THAT THE ASSESSEE FILED RETU RN OF INCOME FOR ASSESSMENT YEAR 2001-02. THE SAID RETURN WAS PROCES SED UNDER SECTION 143(1) OF THE ACT. THEREAFTER THE ASSESSEE MOVED AN APPLICATION UNDER SECTION 154 OF THE ACT TO THE LE ARNED ASSESSING OFFICER STATING THAT HE HAS RECEIVED RS.1 30 000/- ON VRS WHICH IS EXEMPT FROM TAX UNDER SECTION 10(10C) AND THE SAME WAS OMITTED TO BE CLAIMED AS SUCH DUE TO OVERSIGHT. ACCORDINGLY RELIEF UNDER SECTION 89(1) WAS SOUGHT BY THE ASSESSEE. THE LEAR NED ASSESSING OFFICER REJECTED SECTION 154 APLICATION ON THE GRO UND THAT IT WAS BEYOND THE PERIOD OF 4 YEARS AND THEREFORE CANNOT BE ENTERTAINED. THE LEARNED ASSESSING OFFICER ALSO OBSERVED THAT TH ERE WAS NO - 4 - MISTAKE APPARENT FROM THE RECORDS BECAUSE OF THE FO LLOWING REASONS :- (I) THE MISTAKE IS NOT APPARENT FROM RECORD AS THE RECO RD NAMELY THE RETURN OF INCOME FILED BY THE ASSESSEE SHOWS THAT THE ASSESSEE RETURNED THE TOTAL INCOME A T RS.1 58 700/- WHICH WAS ACCORDINGLY PROCESSED ON TH E TOTAL INCOME OF RS.1 58 700/- AND THE REFUND OF RS. 776/- AS CLAIMED BY THE ASSESSEE WAS GRANTED (ALONG WITH INTEREST OF RS.77/- U/S. 244A OF THE ACT). (II) IN THE SAID RETURN OF INCOME THE ASSESSEE HAS NOWH ERE MADE ANY CLAIM OF EXEMPTION OF V.R.S. AMOUNT OF RS.1 30 000/- NOR CLAIMED RELIEF U/S. 89(1) OF THE ACT NOR PRESENTED ANY DOCUMENTS IN THE RETURN IN SUPPORT OF HER PRESENT CLAIM OF RELIEF U/S. 89(1) OF THE ACT. (III) PERUSAL OF FORM NO.16 FILED ALONG WITH THE RETURN A LSO REVEALS THAT NO SUCH CLAIM OF V.R.S. AMOUNT OF RS.1 30 000/- IS SHOWN AS EXEMPT BY THE EMPLOYER. 5. FOR THE ABOVE REASONS THE LEARNED ASSESSING OFFI CER REJECTED THE APPLICATION UNDER SECTION 154 FILED BY THE ASS ESSEE. 6. ON AN APPEALFILED BY THE ASSESSEE THE LEARNED CO MMISSIONER OF INCOME TAX(APPEALS) CONFIRMED THE ORDER OF THE L EARNED ASSESSING OFFICER OBSERVING AS UNDER :- 4. I HAVE CONSIDERED THE MATTER. UNDER SECTION 143 (1) (II) AS IT STOOD AT THE TIME OF PROCESSING IF ANY REFUN D IS DUE ON THE BASIS OF RETURN IT IS TO BE GRANTED TO THE ASS ESSEE AND AN INTIMATION TO THIS EFFECT IS TO BE SENT TO THE ASSE SSEE. THE ASSESSING OFFICER HAD NO POWER TO MAKE ANY ADJUSTME NT TO THE RETURNED INCOME U/S. 143(1) WHEN THE PROCESSING WAS DONE IN APPELLANTS CASE. AS ACCEPTED BY THE APPELL ANT THE ASSESSING OFFICER DETERMINED THE TOTAL INCOME UNDER SECTION 143(1) TO BE EXACTLY THE SAME AS PER RETURN OF INCO ME AND THE ACCOMPANYING DOCUMENTS AND ALSO GRANTED REFUND CLAI MED IN - 5 - THE RETURN OF INCOME. IT IS HELD THAT THERE WAS NO MISTAKE APPARENT FROM RECORD WHICH THE ASSESSING OFFICER C OULD HAVE RECTIFIED U/S. 154. 6. BEFORE US THE LD. A.R. FOR THE ASSESSEE SUBMITTE D THAT ASSESSEE HAD IN FACT MENTIONED THAT IT HAS RECEIVED RS.1 30 000/- IN VRS U/S. 10(10C). HE REFERRED TO THE COMPUTATION OF INCOME SHOWING THE RECEIPT OF VRS AMOUNT OF RS.1 30 000/- AND ALSO COVERED U/S. 10(10C).THE RELEVANT COMPUTATION OF INCOME AND LIAB ILITY IS ANNEXED ON PAGE-17 OF ASSESSEES PAPER BOOK. HE SUBMITTED T HAT IT IS BY MISTAKE ASSESSEE DID NOT CLAIM THE REFUND IN THE OR IGINAL RETURN BUT FOR THAT MATTER IF RELIEF IS LEGALLY AVAILABLE TO T HE ASSESSEE TECHNICAL ISSUES SHOULD NOT DE-BAR THE ASSESSEE FROM THE RELI EF CLAIMED. HE SUBMITTED THAT IN A SIMILAR SITUATION THE TRIBUNAL HAS IN THE CASE OF SHRI JAYANTIBHAI R. CHAUHAN VS. ITO IN ITA NO.2309/ AHD/06 PRONOUNCED ON 2-1-2007 MATTER WAS RESTORED TO THE F ILE OF AO WITH A DIRECTION TO PASS A SPEAKING ORDER IN RESPECT OF THE CLAIM OF THE ASSESSEE AS PER PROVISIONS OF LAW. SINCE IN THAT CA SE ALSO VRS AMOUNT WAS RS.1 30 000/- AND THAT ASSESSEE ALSO FOR GOT TO CLAIM THE RELIEF U/S.10(10C) AND HIS APPLICATION U/S. 154 WAS ALSO REJECTED BY THE A.O. THE TRIBUNAL THROUGH THE ABOVE REFERRED O RDER SENT THE MATTER BACK TO THE A.O. TO RE-CONSIDER THE GROUND O F RELIEF. THE SAME ORDER SHOULD ALSO BE FOLLOWED IN THE CASE OF THE PR ESENT ASSESSEE. 7. AGAINST THIS LD. D.R. RELIED ON THE ORDER OF AO/ CIT(A). - 6 - 8. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERU SED THE MATERIAL AVAILABLE ON RECORD. IN OUR CONSIDERED VI EW IT IS COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SHRI JA YANTIBHAI R. CHAUHAN (SUPRA) IN THAT CASE SINGLE MEMBER BENCH O F THE TRIBUNAL HAS HELD AS UNDER :- 9. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD. D.R. IT HAS ALREADY BEEN MENTIONED THAT ASSESSEE HAD FIL ED REVISED COMPUTATION OF INCOME BEFORE ASSESSING OFFICER CLAI MING THEREIN THAT SAID SUM OF RS.1 30 000/- WAS ALSO A P ART OF VOLUNTARY RETIREMENT SCHEME AND THIS SHOULD BE CONS IDERED AS EXEMPTED. THIS CONTENTION OF ASSESSEE HAS BEEN REJE CTED BY ASSESSING OFFICER WITHOUT GOING INTO THE MERITS OF THE CLAIM SIMPLY ON THE BASIS OF FORM NO.16 AND HIS ORDER IS NOT A SPEAKING ORDER AS TO WHY THE SAID SUM OF RS.1 30 00 0/- DID NOT FALL WITHIN THE EXEMPTED CATEGORY AS PER CLAIM OF T HE ASSESSEE. SIMILAR APPROACH IS ADOPTED BY LD. CIT (A). IT IS THEREFORE CONSIDERED NECESSARY IN THE INTEREST OF JUSTICE THA T THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF ASSESSING OF FICER WITH A DIRECTION TO PASS A SPEAKING ORDER IN RESPECT OF T HE CLAIM OF ASSESSEE AS PER PROVISIONS OF LAW AFTER GIVING REAS ONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. I DIRECT AC CORDINGLY. 9. THE ABOVE QUOTED DECISION WAS FOLLOWED BY THIS T RIBUNAL IN THE CASE OF SMT. PARMAR MANJULABEN RAMESHBHAI VS. I .T.O. WARD-4 NADIAD IN ITA NO.500/AHD/2010 FOR ASSESSMENT YEAR 2 001-02 DATED 5-7-2010. 9. FACTS BEING IDENTICAL RESPECTFULLY FOLLOWING O UR ABOVE QUOTED DECISION OF THE TRIBUNAL WE RESTORE THE MATTER TO T HE FILE OF THE ASSESSING OFFICER TO DECIDE THE ABOVE APPEALS OF TH E ASSESSEE IN ACCORDANCE WITH THE ABOVE QUOTED DECISION OF THE TR IBUNAL. - 7 - 10. IN THE RESULT APPEALS FILED BY THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 23RD DAY OF JULY 2010. SD/- ( N.S. SAINI ) ACCOUNTANT MEMBER AHMEDABAD; ON THIS 23 RD DAY OF JULY 2010 PATKI COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)- 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON --------------- --------- ---------- 2. DRAFT PLACED BEFORE AUTHORITY --------------- ------------------- 3. DRAFT PROPOSED & PLACED --------------- ------ ------------- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED --------------- ----- -------------- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S ---------------- -- ------------------ 6. KEPT FOR PRONOUNCEMENT ON ---------------- --- ----------------- 7. FILE SENT TO THE BENCH CLERK ---------------- -------------------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------