Ms. Visalakshi Anandkumar, CHENNAI v. JCIT, Trichy

MA 139/CHNY/2011 | 2002-2003
Pronouncement Date: 09-09-2011 | Result: Dismissed

Appeal Details

RSA Number 13921724 RSA 2011
Assessee PAN AANPS3093C
Bench Chennai
Appeal Number MA 139/CHNY/2011
Duration Of Justice 2 month(s) 10 day(s)
Appellant Ms. Visalakshi Anandkumar, CHENNAI
Respondent JCIT, Trichy
Appeal Type Miscellaneous Application
Pronouncement Date 09-09-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 09-09-2011
Assessment Year 2002-2003
Appeal Filed On 29-06-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH CHENNAI BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER .. M.P. NO. 139/MDS/2011 (IN I.T.A. NO. 102/MDS/2010) ASSESSMENT YEAR : 2002-03 MS. VISALAKSHI ANANDKUMAR POWER OF ATTORNEY K. SHANMUGHAM 7 STONE LINK AVENUE R.A. PURAM CHENNAI 600 028. PAN : AANPS3093C (PETITIONER) V. THE JOINT COMMISSIONER OF INCOME TAX CIRCLE III TIRUCHIRAPALLI. (RESPONDENT) PETITIONER BY : SHRI R. SRINIVASAN RESPONDENT BY : SHRI T.N. B ETGIRI JCIT DATE OF HEARING : 26.08.2011 DATE OF PRONOUNCEMENT: 09.09.2011 O R D E R PER ABRAHAM P. GEORGE ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS PETITION GRIEVANCE OF THE ASSESSEE IS THAT DESPITE THE RULING OF THIS TRIBUNAL QUASHI NG THE ADDITION MADE UNDER CAPITAL GAINS FOR BOTH THE YEARS AND ALLOWI NG THE APPEAL OF THE ASSESSEE THE A.O. WHILE GIVING EFFECT TO THE ORDER RETAINED THE TAX ON CAPITAL GAINS ERRONEOUSLY ADMITTED BY THE ASSESSEE. LEARNED A.R. M.P. NO. 139/MDS/11 2 SUBMITTED THAT THE A.O. HAD RETAINED THE CAPITAL GA INS ON A WRONG UNDERSTANDING OF THE ORDER. COPIES OF THE GIVING E FFECT ORDERS PASSED BY THE ASSESSING OFFICER HAVE ALSO BEEN FILED. AS PER THE LEARNED A.R. ASSESSEE HAD CLEARLY RAISED THE CONTENTION TH AT VOLUNTARY ADMISSION OF CAPITAL GAINS WAS NO GROUND TO ASSESS THE SAME AS THERE WAS NO ESTOPPEL IN LAW. RELIANCE WAS PLACED ON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CI T V. DPF TEXTILES LTD. (241 ITR 548). THEREFORE AS PER LEARNED A.R. A SUITABLE CLARIFICATION HAS TO BE ISSUED IN THIS REGARD. 2. PER CONTRA LEARNED D.R. SUBMITTED THAT THERE WA S NO ERROR IN THE ORDER OF TRIBUNAL WARRANTING INTERFERENCE UNDER SECTION 254(2) OF INCOME-TAX ACT 1961 (IN SHORT THE ACT). 3. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. WE FIND THAT TRIBUNAL HAD ALLOWED THE ASSESSEES AP PEAL AND GROUND NO.7 TAKEN BY THE ASSESSEE IN ITS APPEAL WAS THAT V OLUNTARY RETURN REGULARIZED BY NOTICE UNDER SECTION 148 COULD NOT B E THE BASE FOR ASSESSMENT AS THERE COULD NOT BE ANY ESTOPPEL AGAIN ST LAW. WHAT THE ASSESSEE NOW PLEADS IS THAT SHE SHOULD BE REFUN DED THE TAX ALREADY PAID AS PER THE RETURN FILED BY HER VOLUNTA RILY. THE LEGAL EFFECT M.P. NO. 139/MDS/11 3 WHEN AN ASSESSEE HAD ALREADY FILED RETURN OF INCOME AND ADMITTED TAX AND REFUND WAS THEREOF SOUGHT BASED ON APPELLA TE ORDERS FOR THE TAX PAID ON VOLUNTARY RETURN HAS ALREADY BEEN ELUC IDATED BY HON'BLE APEX COURT IN THE CASE OF CIT V. SHELLY PRODUCTS (2 61 ITR 367). IT WAS HELD BY HON'BLE APEX COURT AS UNDER:- THE ACT ALSO ENJOINS UPON THE ASSESSEE THE DUTY TO F ILE A RETURN OF INCOME DISCLOSING HIS TRUE INCOME. ON THE BASIS OF THE INCOME SO DISCLOSED THE ASSESSEE IS REQUIRED TO MAKE A SE LF-ASSESSMENT AND TO COMPUTE THE TAX PAYABLE ON SUCH INCOME AND TO PAY THE SAME IN THE MANNER PROVIDED BY THE ACT. THUS THE F ILING OF RETURN AND THE PAYMENT OF TAX THEREON COMPUTED AT T HE PRESCRIBED RATES AMOUNTS TO AN ADMISSION OF TAX LIA BILITY WHICH THE ASSESSEE ADMITS TO HAVE INCURRED IN ACCORDANCE WITH THE PROVISIONS OF THE FINANCE ACT AND THE IT ACT. BOTH THE QUANTUM OF TAX PAYABLE AND ITS MODE OF RECOVERY ARE AUTHORIZE D BY LAW. THE LIABILITY TO PAY INCOME-TAX CHARGEABLE UNDER S. 4 (1) THUS DOES NOT DEPEND ON THE ASSESSMENT BEING MADE. AS S OON AS THE FINANCE ACT PRESCRIBES THE RATE OR RATES FOR ANY ASS ESSMENT YEAR THE LIABILITY TO PAY THE TAX ARISES. THE ASSESS EE IS HIMSELF REQUIRED TO COMPUTE HIS TOTAL INCOME AND PAY THE INC OME-TAX THEREON WHICH INVOLVES A PROCESS OF SELF-ASSESSMENT . SINCE ALL THIS IS DONE UNDER AUTHORITY OF LAW THERE IS NO SCO PE FOR CONTENDING THAT ART. 265 IS VIOLATED. AFTER THE EA RLIER ASSESSMENT MADE IS SET ASIDE OR NULLIFIED IN APPROP RIATE PROCEEDINGS IF THE ASSESSING AUTHORITY CANNOT MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH THE PROVISIONS OF THE ACT IT AMOUNTS TO DEEMED ACCEPTANCE OF THE RETURN OF INCOM E FURNISHED BY THE ASSESSEE. IN SUCH A CASE THE ASSESSING AUTHO RITY IS DENUDED OF ITS AUTHORITY TO VERIFY THE CORRECTNESS AN D COMPLETENESS OF THE RETURN WHICH AUTHORITY IT HAS W HILE FRAMING A REGULAR ASSESSMENT. IT MUST ACCEPT THE RETURN AS FURNISHED AND SHALL NOT IN ANY EVENT RAISE A DEMAND FOR PAYMENT OF FURTHER TAXES. ACCEPTING THE INCOME AS DISCLOSED IN THE RE TURN OF INCOME M.P. NO. 139/MDS/11 4 FURNISHED BY THE ASSESSEE IT MUST REFUND TO THE ASS ESSEE ANY TAX PAID IN EXCESS OF THE LIABILITY INCURRED BY HIM ON THE BASIS OF INCOME DISCLOSED. EVEN IF THE TAX PAID IS FOUND TO BE LESS THAN THAT PAYABLE NO FURTHER DEMAND CAN BE MADE FOR RECO VERY OF THE BALANCE AMOUNT SINCE A FRESH ASSESSMENT IS BARRED. IN OTHER WORDS THE TAX PAID BY THE ASSESSEE MUST BE ACCEPTED AS IT IS AND IN THE EVENT OF THE TAX PAID BEING IN EXCESS OF THE TAX LIABILITY DULY COMPUTED ON THE BASIS OF RETURN FURNIS HED AND THE RATES APPLICABLE THE EXCESS SHALL BE REFUNDED TO T HE ASSESSEE SINCE ITS RETENTION MAY OFFEND ART. 265 OF THE CONST ITUTION. THE FAILURE OR INABILITY OF THE REVENUE TO FRAME A FRESH ASSESSMENT SHOULD NOT PLACE THE ASSESSEE IN A MORE DISADVANTAG EOUS POSITION THAT IN WHAT HE WOULD HAVE BEEN IF A FRESH ASSESSME NT WAS MADE. IN A CASE WHERE AN ASSESSEE CHOOSES TO DEPOSIT BY WA Y OF ABUNDANT CAUTION ADVANCE TAX OR SELF-ASSESSMENT TAX WHICH IS IN EXCESS OF HIS LIABILITY ON THE BASIS OF RETURN FURNI SHED OR THERE IS ANY ARITHMETICAL ERROR OR INACCURACY IT IS OPEN TO H IM TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE COURSE OF ASSE SSMENT PROCEEDINGS. HE CAN CERTAINLY MAKE SUCH A CLAIM ALS O BEFORE THE CONCERNED AUTHORITY CALCULATING THE REFUND. SIMILAR LY IF HE HAS BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANC E INCLUDED IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYM ENT OF INCOME-TAX OR IS NOT INCOME WITHIN THE CONTEMPLATI ON OF LAW HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSI NG AUTHORITY WHICH IF SATISFIED MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHEN REFUND IS DUE AND PAYABLE AND THE AUTHORITY CONCERNED ON BEING SATISFIED SHALL G RANT APPROPRIATE RELIEF. THUS IT IS CLEAR THAT A RELIEF OF THE NATURE SOUGHT BY THE ASSESSEE HAS TO BE GRANTED BY THE A.O. IF IT BRINGS SUCH ISSUE TO THE NOTICE OF THE ASSESSING AUTHORITY AND IF ASSESSING AUTHORITY FIND S THAT RELIEF SOUGHT IS JUSTIFIABLE. AS FOR THE DECISION OF HON'BLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF DPF TEXTILES LTD. (SUPRA) IT HAS NO THING TO DO WITH THE M.P. NO. 139/MDS/11 5 SCOPE OF POWER OF THIS TRIBUNAL IN A RECTIFICATION SOUGHT INVOKING ITS POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THIS TRIBUNAL WARRANTING RECTIFICAT ION UNDER SECTION 254(2) OF THE ACT MUCH LESS ANY MISTAKE APPARENT FR OM THE RECORD. ASSESSEES APPEAL HAVING BEEN ALLOWED THIS MISCELL ANEOUS PETITION IS DEVOID OF MERITS. 4. IN THE RESULT THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 9 TH SEPTEMBER 2011. SD/- SD/- (HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI DATED THE 9 TH SEPTEMBER 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE