Shri Johnson Philip, Ahmedabad v. The A.C.I.T., Cen. circle-1(3), Ahmedabad

CO 179/AHD/2003 | misc
Pronouncement Date: 26-02-2010 | Result: Allowed

Appeal Details

RSA Number 17920523 RSA 2003
Bench Ahmedabad
Appeal Number CO 179/AHD/2003
Duration Of Justice 6 year(s) 4 month(s) 27 day(s)
Appellant Shri Johnson Philip, Ahmedabad
Respondent The A.C.I.T., Cen. circle-1(3), Ahmedabad
Appeal Type Cross Objection
Pronouncement Date 26-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 26-02-2010
Date Of Final Hearing 23-02-2010
Next Hearing Date 23-02-2010
Assessment Year misc
Appeal Filed On 29-09-2003
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH AHMEDABAD (BEFORE S/ SHRI BHAVNESH SAINI JM AND A. N.PAHUJA AM) CO NO.179/AHD/2003 (IN IT (SS)A NO.331/AHD/2002- BLOCK PERIOD: 1989-90 TO 1998-99 (UP TO 21-10-1999)) SHRI JOHNSON PHILLIP 306 AWAS APARTMENT SHALKATA NAGAR THALTEJ AHMEDABAD PA NO. -- VS THE A. C. I.T. CENTRAL CIRCLE-1(3) AHMEDABAD (APPLICANT) (RESPONDENT) APPLICANT BY SHRI P. F. JAIN AR RESPONDENT BY SHRI S. S. PANWAR DR O R D E R PER BHAVNESH SAINI: THE CROSS OBJECTION BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED CIT(A)-I AHMEDABAD DATED 27- 09-2002 FOR THE ABOVE BLOCK PERIOD. 2. THE ABOVE CROSS OBJECTION IS FILED IN DEPARTMENT AL APPEAL IN IT(SS) A NO. 331/AHD/2002 WHICH IS SEPARATELY DISPO SED OF. 3. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF BOT H THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. 4. ON GROUND NO.1 OF THE CROSS OBJECTION THE ASSES SEE CHALLENGED THE ADDITION OF RS.72 660/- PERTAINING TO ASSESSMEN T YEAR 1999-2000 AS UNDISCLOSED INCOME. THE AO HAS HELD THAT RETURN FOR ASSESSMENT YEAR 1999-2000 US FILED ON 16-11-1999 I. E. AFTER THE DU E DATE FOR FILING OF THE RETURN AND AFTER THE SEARCH TOOK PLACE. IT WAS THE REFORE TREATED AS INCOME FROM UNDISCLOSED SOURCE. IT WAS EXPLAINED BE FORE THE LEARNED CIT(A) THAT THE ASSESSEE HAS SOURCE OF INCOME FROM SALARY AND LIC C. O. NOS.179/AHD/2003 (IN ITA NO.331/AHD/02) SHRI JOHNSON PHILLIP 2 COMMISSION AND FROM BOTH THESE PAYMENTS TAXES HAVE BEEN DEDUCTED AT SOURCE. THEREFORE IT WOULD BE OUTSIDE OF SCOPE OF BLOCK ASSESSMENT. THE LEARNED CIT(A) HOWEVER CONFIRMED THE ADDITION AND THE LEARNED CIT(A) NOTED THAT INSTEAD OF ADDITION MADE BY THE AO IN A SUM OF RS.78 811/- THE ADDITION SHOULD BE RESTRICTED TO RS.72 660 ONLY . 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE HAS SPECIFIC SOURCE OF INCOME FROM SALARY AND COMMI SSION AND THAT THE DUE DATE FOR FILING OF THE RETURN OF INCOME FOR ASS ESSMENT YEAR 1999-2000 WAS EXTENDED UP TO 31 ST DECEMBER 1999. HE HAS FILED COPY OF THE CIRCULAR IN SUPPORT OF THE CONTENTION AND SUBMITTED THAT SINCE THE SEARCH TOOK PLACE ON 21-10-1999 AND THAT DUE DATE FOR FILI NG OF RETURN FOR ASSESSMENT YEAR 1999-2000 DID NOT EXPIRE THEREFORE THE SAME COULD NOT BE TREATED AS UNDISCLOSED INCOME OF THE ASSESSEE. O N THE OTHER HAND THE LEARNED DR RELIED UPON THE ORDERS OF THE AUTHORITIE S BELOW. 6. ON CONSIDERATION OF THE ABOVE FACTS WE ARE OF T HE VIEW THAT THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE AO. THE ASSESSEE HAS PRODUCED COPY OF THE CIRCULAR OF THE BOARD FOR ASSE SSMENT YEAR 1999- 2000. THE DUE DATE FOR FILING OF THE RETURN WAS EXT ENDED TILL 31 ST DECEMBER 1999. THEREFORE THE SAME COULD NOT BE TR EATED AS UNDISCLOSED INCOME IN THE HANDS OF THE ASSESSEE BEC AUSE THE ASSESSEE ADMITTEDLY8 FILED THE RETURN OF INCOME FOR ASSESSME NT YEAR 1999-2000 PRIOR TO THE DUE DATE OF FILING OF THE RETURN ON 16 -11-1999. WE HOWEVER FIND THAT THIS POINT WAS NOT RAISED BEFORE THE AUTH ORITIES BELOW. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE TO THE FILE OF THE AO WITH DIRECTION TO RE-DE CIDE THE ISSUE BY GIVING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE L IGHT OF THE BOARD CIRCULAR EXTENDING THE DATE OF FILING RETURN TILL 3 1 ST DECEMBER 1999. AS A RESULT THIS GROUND OF THE CROSS OBJECTION IS ALLOW ED FOR STATISTICAL PURPOSES. C. O. NOS.179/AHD/2003 (IN ITA NO.331/AHD/02) SHRI JOHNSON PHILLIP 3 7. ON GROUND NO.2 OF THE CROSS OBJECTION THE ASSES SEE CHALLENGED CHARGING OF INTEREST U/S 158 BFA(1) OF THE IT ACT. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED TO PAGE 4 OF THE ASSESSMENT O RDER AND SUBMITTED THAT SEIZED MATERIAL WAS GIVEN TO THE ASSESSEE ON 0 2-09-2000. HE HAS ALSO SUBMITTED THAT FURTHER SEIZED MATERIAL WAS GIV EN TO THE ASSESSEE LATER ON. THEREFORE THERE WAS NO DELAY ON THE PART OF THE ASSESSEE TO FILE THE RETURN FOR THE BLOCK PERIOD BELATEDLY. HE HAS A LSO SUBMITTED THAT ULTIMATELY THE ASSESSEE FILED RETURN FOR BLOCK PERI OD ON 24-11-2000. THEREFORE THE DELAY WAS NOT ATTRIBUTABLE TO THE AS SESSEE IN FILING THE RETURN. ON THE OTHER HAND THE LEARNED DR RELIED UP ON THE ORDER OF THE AO. 8. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT THIS ISSUE ALSO REQUIRES RECONSIDERATION AT THE LEV EL OF THE AO. THE NOTICE U/S 158 BC OF THE IT ACT WAS ISSUED ON 12-09-2000 A ND THE ASSESSEE WAS DIRECTED TO FILE THE SAME RETURN FOR THE BLOCK PERIOD WITHIN 20 DAYS FROM SERVICE OF THE NOTICE. THE ASSESSEE FILED RETU RN FOR THE BLOCK PERIOD ON 24-11-2000. THE RECORD REVEALS THAT THE ASSESSEE REQUESTED FOR SEVERAL DOCUMENTS FROM THE AO AND ALSO SOUGHT CERTA IN CLARIFICATION DURING THIS PERIOD. THE ASSESSEE THEREFORE CLAIME D THAT THE DELAY IN FILING OF THE RETURN WAS NOT ATTRIBUTABLE TO HIM. T HE LEARNED CIT(A) WITHOUT CONSIDERING THE ISSUE IN PROPER PERSPECTIVE HELD THAT THE AO MAY GIVE CONSEQUENTIAL RELIEF. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND RESTORE THIS ISSUE ALSO TO TH E FILE OF THE AO WITH DIRECTION TO RE-DECIDE THE ISSUE BY VERIFYING THE F ACTS ON RECORD. IN CASE THE DOCUMENTS WERE SUPPLIED BELATEDLY TO THE ASSESS EE BEFORE FILING OF THE RETURN THE DELAY WOULD NOT BE ATTRIBUTABLE TO THE ASSESSEE IN FILING OF THE RETURN FOR THE BLOCK PERIOD. FOR SUCH PERIOD THE IN TEREST SHOULD NOT BE CHARGED. THE AO SHALL VERIFY THESE FACTS FROM THE R ECORD AND SHALL PASS A REASONED ORDER BY GIVING REASONABLE SUFFICIENT OPPO RTUNITY OF BEING HEARD C. O. NOS.179/AHD/2003 (IN ITA NO.331/AHD/02) SHRI JOHNSON PHILLIP 4 TO THE ASSESSEE. AS A RESULT GROUND NO.2 OF THE CR OSS OBJECTION OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. NO OTHER POINT IS ARGUED OR PRESSED. 10. AS A RESULT THE CROSS OBJECTION OF THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26-02-2010 SD/- SD/- (A. N. PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 26 -02-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD