Income Tax Appellate Tribunal - Lucknow
Mohd. Shad Khan, Lucknow vs Income Tax Officer-1(2), Lucknow on 7 May, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH"SMC", LUCKNOW
BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER
AND SHRI PARTHA SARATHI CHAUDHURY,JUDICIAL MEMBER
ITA No.162/LKW/2017
Assessment Year:2011-12
Mohd. Shad Khan v. Income Tax Officer 1(2)
514, Prime Plaza Lucknow
Sector 16, Indira Nagar
Lucknow
TAN/PAN:AMZPK5909M
(Appellant) (Respondent)
Appellant by: Shri Dharmendra Kumar, C.A.
Respondent by: Smt. Neelam Agrawal, D.R.
Date of hearing: 03 05 2018
Date of pronouncement: 07 05 2018
ORDER
PER PARTHA SARATHI CHAUDHURY, J.M:
This appeal preferred by the assessee emanates from the order of the ld. CIT(A)-I, Lucknow dated 16/11/2016 as per grounds of appeal appearing on record.
2. The facts in this case are that the Assessing Officer in the assessment order observed that the assessee has not filed any revised return of income within specified time, the revised computation claiming excess deduction and showing different income is not acceptable in view of Apex court decision in the case of Goetze ((India) Ltd. Vs. CIT. During the course of assessment proceedings the assessee was asked to furnish the credit entries in the bank accounts of the assessee. The assessee has shown all income as per revised computation as source of ITA No.162/LKW/2017Page 2 of 5 cash deposits. The assessee submitted revised computation, profit & loss account of Mohd. Shad Khan showing commission and miscellaneous income. No details regarding miscellaneous income were furnished by the assessee and also the said income was not shown by the assessee in the return of income filed by him. No books of accounts, bills and vouchers regarding expenses were produced by the assessee in this regard. Only a computerized cash book was produced without any supporting documentary evidences. Hence, entire miscellaneous receipts not shown in the return of income was treated as unexplained credits in the accounts of the assessee and added to the total income of this assessee, which is Rs.5,31,053/-.
3. The assessee has also included Rs.9,20,000/- as rental income shown in revised computation in the details of credit entries submitted by the assessee. The assessee was asked to furnish details/source of rental income. In this rental income out of 8 tenants, only 3 was verified by the Assessing Officer. Hence rest amount of Rs.6,10,000/- was added to the total income as unexplained credit entries.
4. Before the ld. CIT(A), assessee filed detailed written submission which is there in the order of the ld. CIT(A) and on record, thus, need not to be reiterated herein again. However, the crux of the argument by the assessee is that during the assessment proceedings assessee revised its financial statements and filed revised return, revised computation of income, revised balance sheets, revised profit &loss accounts etc. and filing evidences and books of accounts in support of such revision. The Assessing Officer refused to consider the aforesaid revised details and documents on the ground that revision of return is permissible if made under the provision of section 139(5) of the Act. On merits also assessee had argued in the written submission on each and ITA No.162/LKW/2017Page 3 of 5 every aspect of the addition made in the assessment order. The ld. CIT(A) after considering the Assessing Officer's order and submissions of the assessee, held as under:-
"7. Ground no.2, 3,4 & 5 are raised by the appellant in respect of not considering the revised computation of income by the AO while making the addition/disallowances under various heads. Since/ the appellant did not revised his ITR therefore/ any variation in claim under various heads of income and expenditure has correctly not been considered by AO and taken into consideration while framing the scrutiny assessment. However/ during appellate proceedings and opportunity being heard provided to the appellant and the written submission/documents which were furnished by the appellant alongwith written submission send to AO for remand report. The remand report received from AO has also been provided to appellant during appellate proceedings for counter comments. Since the appellant did not revise his ITR therefore, the AO has correctly relied on the decision of Hon'ble Supreme Court given in the case of GOETZE (India Ltd.) vs. CIT. The ground raised by the appellant without any merit therefore, same are dismissed."
5. At the time of hearing before us, the ld. A.R. of the assessee stated that revised return was filed on time with all evidences and other relevant documents, but so far as records placed before us in the Assessing Officer's order it is stated that revised return was not filed within time and the ld. CIT(A) had made an observation that appellant did not revise his ITR, therefore, any variation in claim under various heads of income and expenditure has correctly not been considered by Assessing Officer and taken into consideration while framing the scrutiny assessment, which means that since revised return was not in accordance with section 139(5), it was not considered as revised return ITA No.162/LKW/2017Page 4 of 5 at all. The ld. A.R. of the assessee further stated that an opportunity may be given to produce their case on merit and to justify the fact that revised return was also filed on time along with relevant evidence, the matter may be restored to the file of the Assessing Officer for verification of facts.
6. The ld. D.R. did not have any objection for restoring the matter to the file of the Assessing Officer.
7. We have perused the case records, heard the rival contentions and we are of the considered view that it is not disputed that revised return was filed with all revised details of balance sheet and profit & loss account. What is to be seen is whether revised return was filed according to the statutory provisions and as per time limit framed within the statute. There are additions made by the Assessing Officer since assessee was unable to provide evidences regarding the same. Now that the ld. A.R. of the assessee is pleading for an opportunity to present their case on merit before the Assessing Officer and states that revised details and return were filed on time as per section 139(5) of the Act and moreover he has got all the relevant evidences and documents to fight his case before the Assessing Officer. We have always looked into the tax legislation as welfare legislation and whenever possible as per principles of natural justice and equity we have given opportunity to the assessee. We appreciate these are the tax payers from whom revenue is collected, therefore, full opportunity at every stage of adjudication should be given to the assessee and revenue laws are not penal laws and neither so rigid to curb lawful rights of taxpaying assessee. With these observations, we set aside the order of the ld. CIT(A) and restore the matter to the file of the Assessing Officer for factual verification as enumerated hereinabove.
ITA No.162/LKW/2017Page 5 of 58. In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 07/05/2018.
Sd/- Sd/-
[T.S. KAPOOR] [PARTHA SARATHI CHAUDHURY]
ACCOUNTANT MEMBER JUDICIAL MEMBER
DATED: 7th May, 2018
JJ:
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT(A)
4. CIT
5. DR