Income Tax Appellate Tribunal - Chennai
Dr.S.F.V.Selvaraj, Chennai vs Acwt, Chennai on 16 August, 2017
आयकर अपील य अ धकरण, 'ए' यायपीठ, चे नई।
IN THE INCOME TAX APPELLATE TRIBUNAL
'A' BENCH: CHENNAI
ी जॉज माथन, या यक सद!य एवं
ी ए. मोहन अलंकामणी, लेखा सद य के सम"
BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER, AND
SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER
WTA Nos.18 to 22/Mds/2017
नधारण वष /Assessment Years: 2007-08 to 2011-12
The Asst. Commissioner of Wealth Vs. Dr.S.F.V.Selvaraj,
Tax, Central Circle-2(4), 46, Old No.11, New No.22,
Nungambakkam High Road, 5th Street, Dr. Thirumoorthy
Chennai-34. Nagar, Nungambakkam,
Chennai-600 034.
[PAN: AASPS 5404 L]
(अपीलाथ%/Appellant) (&'यथ%/Respondent)
Cross-Objection Nos.68 to 72/Mds/2017
नधारण वष /Assessment Years: 2007-08 to 2011-12
Dr.S.F.V.Selvaraj, Vs. The Asst. Commissioner of
Old No.11, New No.22, Wealth Tax, Central Circle-
5th Street, Dr. Thirumoorthy Nagar, 2(4), 46, Nungambakkam
Nungambakkam, Chennai-600 034. High Road, Chennai-34.
[PAN: AASPS 5404 L]
(अपीलाथ%/Appellant) (&'यथ%/Respondent)
Assessee by : Mr.G.Baskar, Adv.
Department by : Mr.AR.V.Sreenivasan, JCIT
सुनवाई क) तार ख/Date of Hearing : 16.08.2017
घोषणा क) तार ख /Date of Pronouncement : 16.08.2017
WTA Nos.18 to 22/Mds/2017 &
CO Nos.68 to 72/Mds/2017
:- 2 -:
आदे श / O R D E R
PER GEORGE MATHAN, JUDICIAL MEMBER:
WTA Nos.18 to 22/Mds/2017 are appeals filed by the Revenue against the Order of Commissioner of Wealth Tax (Appeals)-18, Chennai, in WTA Nos.940 to 944/15-16 dated 10.01.2017 for the AYs 2007-08, 2008-09, 2009-10, 2010-11 & 2011-12 and CO Nos.68 to 72/Mds/2017 are Cross-Objections are filed by the assessee for the same AYs.
2. Mr.AR.V.Sreenivasan, JCIT represented on behalf of the Revenue and Mr.G.Baskar, Adv. represented on behalf of the assessee.
3. It was submitted by the Ld.DR that the assessee though liable for filing Wealth Tax Returns had not filed his WT Returns within the due date. Consequently, notice u/s.17 was issued to the assessee and the returns of wealth were filed. The only issue in the appeals was against the levy of interest u/s.17B of the Act. It was a submission that the net wealth returns filed by the assessee was accepted. However, interest u/s.17B(1) for the AYs 2007-08 & 2008-09 was levied and interest u/s.17B(3) for the AYs 2009-10, 2010-11 & 2011-12 was levied. It was a submission that the Ld.CIT(A) had deleted the interest levied u/s.17B by holding that the assessee having not filed his return within the due date as provided in Sec.14 and within the time as provided in Sec.15 had to file the return only after issuance of notice u/s.17 of the Act and consequently, the delay in filing of the return on account of the inability of the assessee to file the WTA Nos.18 to 22/Mds/2017 & CO Nos.68 to 72/Mds/2017 :- 3 -:
return on account of the non-availability of a statutory provision for the purpose of filing a belated return could not be held against the assessee.
4. The Ld.DR submitted that the levy of interest u/s.17B was compensatory. He placed reliance on the decision of the Co-ordinate Bench of this Tribunal, Bangalore Benches in the case of Smt.M.R. Prabhavathy v. ACIT reported in 80 ITD 520 (Bang.) wherein it has been held as follows:
9. From the above, it is clear that interest under section 17B is attracted in a case where the return of net wealth is furnished after the due date or where no such return is filed before the completion of the assessment. In the present case, the assessees did file the return of net wealth on 15.2.1994 as against the due date of 30th June, 1991. Thus, apparently, there is a delay in filing the returns. The argument of the learned counsel for the assessee that since the returns were considered non est in law, they do not come within the purview of section l7B(1) does not hold water. Sub-section (3) of section l7B is attracted only in a case where assessment has been done originally and return is filed subsequently in pursuance of notice under section 17. No doubt sub-section (3) does not apply to the facts of the case as in the present cases assessments have been done for the first time and, therefore, we have to see the applicability of sub-section (1) of section 17B which envisages the following situations:
(i) Return is furnished after the due date under sub-section (1) of section 14;
(ii) Return is furnished after the due date under section 15;
(iii) Return is furnished after the due date in response to notice under section 16(4)(m);
(iv) Where no return is filed before completion of assessment.
Section 14(1) deals with voluntary filing of the return on the part of the assessee, for which a due date has been prescribed. Section 15 deals with a case where the assessee wants to file a return where he has not furnished a return under section 14(1) or 16(4) or where he wants to file a revised return when the earlier return is found to have any ommission or mistake. Section l6(4)(i) comes into play when the Assessing Officer calls upon the person to file a return of wealth when there is an omission to file the return under section 14(1). Section 17 deals with a case of reopening of assessment in case of escapement of net wealth for assessment or a fresh assessment for an assessment year for which the normal time for assessment has elapsed. Section 17 inter cilia provides that the provisions of the WT Act, 1957 shall, so far as may be, apply as if the return filed under the section were a return required to be furnished under section 14. Explanation 3 under section l7B(1) makes it clear that where in relation to an assessment year an assessment is made for the first time under section 17, the assessment so made shall be regarded as a regular assessment for the purpose of this section.
5. It was a submission that for the AYs 2007-08 & 2008-09, the order of the Ld.CIT(A) was liable to be reversed. In respect of the AYs 2009-10, WTA Nos.18 to 22/Mds/2017 & CO Nos.68 to 72/Mds/2017 :- 4 -:
2010-11 & 2011-12, it was a submission that the Ld.CIT(A) had restricted the levy of interest u/s.17B by holding that the assessee had filed his original returns within the due date. It was a submission that the filing of the returns within the due date was not available with the AO. It was a submission that the order of the Ld.CIT(A) was liable to be reversed.
6. In reply, the Ld.AR submitted that the assessee could not be asked to do the impossible. It was a submission that admittedly the Wealth Tax Returns had not been filed as per the due date provided in Sec.14(1) or in Sec.15. It was a submission that the time limit having expired, there was no provision for the assessee to file his returns beyond the due date. It was a submission that consequently, the assessee had to await the issuance of notice u/s.17 of the Act. It was a submission that the period between the due date for filing of the returns and the date of issuance of notice u/s.17 should be excluded, in so far as such delay was not on account of failure on the part of the assessee, as the assessee could not do the impossible. In respect of the AYs 2009-10, 2010-11 & 2011-12, the Ld.AR placed before us, the copies of the original returns filed. He vehemently supported the order of the Ld.CIT(A). It was a further submission that in the Cross-Objection, the assessee has only supported the order of the Ld.CIT(A). It was a prayer that the order of the Ld.CIT(A) be upheld.
WTA Nos.18 to 22/Mds/2017 & CO Nos.68 to 72/Mds/2017 :- 5 -:
7. We have considered the rival submissions. In respect of the AYs 2007-08 & 2008-09, the filing of the return of wealth is mandatory duty on the assessee once the net wealth exceeds the prescribed limit. Just because, the due date for filing of the Wealth Tax Returns expire and the assessee had not filed his return within the due date, it cannot be said that the assessee is exempted from the levy of interest u/s.17B in respect of the period between the due date and the date of the notice u/s.17. The levy of interest u/s.17B is admittedly compensatory in nature. In these circumstances, respectfully following the decision of Co-ordinate Bench of this Tribunal in the case of Smt.M.R. Prabhavathy v. ACIT referred to supra, the order of the Ld.CIT(A) on this issue stands reversed and that of the AO restored. In these circumstances, appeals of the Revenue in WTA Nos.18 & 19/Mds/2017 stands allowed.
8. In respect of the AYs 2009-10, 2010-11 & 2011-12, it is noticed that the assessee has filed his return of income within the due date. The Revenue has not been able to dispute this fact. Even considering the submission of the Ld.DR that the return was not before the AO, the same would not stand, in so far as, that is not the ground raised by the Revenue. In these circumstances, respectfully following the decision of Co-ordinate Bench of this Tribunal in the case of Smt.M.R. Prabhavathy v. ACIT referred to supra, the order of the Ld.CIT(A) for the AYs 2009-10, 2010-11 & 2011-12 stands confirmed.
WTA Nos.18 to 22/Mds/2017 & CO Nos.68 to 72/Mds/2017 :- 6 -:
9. In the result, appeals of the Revenue in WTA Nos.20, 21 & 22 stands dismissed.
10. Cross-Objections filed by the assessee are in support of the order of the Ld.CIT(A). We have already reversed the order of the Ld.CIT(A) for the AYs 2007-08 & 2008-09 and confirmed the order of the Ld.CIT(A) for the AYs 2009-10, 2010-11 & 2011-12. In these circumstances, Cross- Objections filed by the assessee are infructuous and consequently dismissed as infructuous.
11. In the result, WTA Nos.18 & 19/Mds/2017 stands allowed and WTA Nos.20 to 22/Mds/2017 stands dismissed and CO Nos.68 to 72/Mds/2017 stands dismissed as infructuous.
Order pronounced in the Open Court on August 16, 2017, at Chennai.
Sd/- Sd/-
(ए. मोहन अलंकामणी) (जॉज माथन)
(A. MOHAN ALANKAMONY) (GEORGE MATHAN)
लेखा सद!य/ACCOUNTANT MEMBER या यक सद!य/JUDICIAL MEMBER
चे नई/Chennai,
/दनांक/Dated: August 16, 2017.
TLN
आदे श क) & त1ल2प अ3े2षत/Copy to:
1. अपीलाथ%/Appellant 4. आयकर आय4
ु त/CIT
2. &'यथ%/Respondent 5. 2वभागीय & त न ध/DR
3. आयकर आयु4त (अपील)/CIT(A) 6. गाड फाईल/GF