Income Tax Appellate Tribunal - Ahmedabad
Shital M.Sheth, Ahmedabad vs Department Of Income Tax on 22 May, 2015
IN THE INCOME TAX APPELLATE TRIBUNAL
''D'' BENCH - AHMEDABAD
Before S/Shri G. D. Agrawal, VP & Rajpal Yadav, JM
ITA No.2597/Ahd/2011
Asst. Year 2007-08
.Asstt. C.I.T. (OSD), Cir.9, Vs Smt. Shital M. Sheth,
Ahmedabad. Ananddham Society, Kiran Park,
New Wadaj, Ahmedabad-13.
(Appellant) (Respondent)
PA No. AKHPS9202R
Appellant by Shri B. L. Yadav, Sr. DR
Respondent by Shri D. K. Parikh, AR
Date of hearing: 14/5/2015
Date of pronouncement: 22/5/2015
ORDER
PER Shri Rajpal Yadav, Judicial Member.
The Revenue is in appeal before us against the order of ld. CIT(A) dated 30th August, 2011 passed for AY 2007-08. The solitary substantial grievance of the Revenue is that ld. CIT(A) has erred in deleting the disallowance of Rs.3,26,764/- which was disallowed by the AO with the help of Section 88Eof the I.T. Act, 1961.
2. The brief facts of the case are that assessee has filed her return of income on 23.10.2007, declaring an income of ITA No.2597/Ahd/2011 2 Asst. Year 2007-08 Rs.12,67,550/-. The case of the assessee was selected for scrutiny assessment and a notice under section 143(2) of the I.T. Act, 1961 was issued and served upon the assessee . On scrutiny of accounts, it revealed to the AO that assessee had claimed a rebate of Rs.3,26,764/- u/s 88E of the I.T. Act, in respect of Security Transaction Tax paid by the assessee. The ld. AO disallowed this claim of the assessee on the ground that assessee failed to submit form Nos.10DB and 10DC along with return of income.
3. On appeal, ld. first appellate authority has deleted the disallowance by observing that as far as payment of Security Transaction Tax by the assessee are concerned, there is no dispute, she has filed form Nos.10DB & 10DC belatedly i.e. during the assessment proceedings. The evidence exhibiting payment taxes has already been filed during the assessment proceedings. According to the first appellate authority the requirement of submissions of Form Nos.10DB & 10DC along with return is directory requirement and if an assessee failed to submit such form, but submit the forms during assessment proceedings then it it to be construed that assessee had sufficiently complied with the requirement of the provisions and rebate would not be denied to the assessee. The first appellate authority has fortified her conclusion by the decision of Hon'ble Gujarat High Court in the case of ITO vs. VXL India Ltd. reported in 312 ITR 187. In this case the audit report under section 80HHC was not submitted along with the return but was submitted during the course of assessment proceedings. It was construed that assessee has complied with the requirement.
ITA No.2597/Ahd/2011 3Asst. Year 2007-08
4. Before us, the ld. counsel for the assessee has placed on record copy of Tribunal's order in ITA No.1713/Del/2009 passed in the case of ACIT,Cir-II, Faridabad vs. Sh. Parveen Jain and a copy of ITAT order in the case of ITO vs. Chunilal T. Mehta rendered in ITA No.227/Kol/ of 2010 reported in 18 taxmann.com.96. In these judgments it has been observed by the ITAT that though the expression ''shall'' has been employed in sub-section (1) of section 88E but this expression is to be construed as a directory and not mandatory. The ITAT Delhi Bench has made a reference to a large number of decisions namely -CIT vs. Punjab Financial Corporation 254 ITR 6 (P & H), CIT vs. Shiva Rice & Dal Mill 273 ITR 265 (P & H), CIT vs. Vali Cotton Traders Pvt. Ltd. 288 ITR 400 (Mad), CIT vs.Krishan Nair 259 ITR 727 (Ker) & CIT vs. Panna Chemical Works 292 ITR 147 (MP), in all these decisions assessees failed to submit either form No.10DB, audit report as required under section 88HHC or any other form required for grant of deduction under section 80HHC, 80I etc. The expression 'shall' has been used in the provisions for requiring the assessee to submit certificate, audit report, form No.10CC, 10D etc. All the High Courts have unanimously observed that if these documents are submitted during the course of assessment proceedings and the AO has verified all these then the benefit to the assessee should not be denied merely on the ground that these forms/certificates were not submitted along with the return. We are of the view that ld. first appellate authority has appreciated the controversy in right perspective and no interference is called in ITA No.2597/Ahd/2011 4 Asst. Year 2007-08 the order of CIT(A). In view of the above, we do not find any merit in the appeal of Revenue and it is dismissed.
Order pronounced in the open Court on 22/5/2015 Sd/- Sd/-
(G. D. Agrawal) (Rajpal Yadav)
Vice President Judicial Member
Mahata/-
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
Dy. Registrar, ITAT, Ahmedabad
1. Date of dictation: 18/5/2015
2. Date on which the typed draft is placed before the Dictating Member: 18/5/2015 other Member:
3. Date on which approved draft comes to the Sr. P. S./P.S.:
4. Date on which the fair order is placed before the Dictating Member for pronouncement: __________
5. Date on which the fair order comes back to the Sr. P.S./P.S.:
6. Date on which the file goes to the Bench Clerk:
7. Date on which the file goes to the Head Clerk:
8. The date on which the file goes to the Assistant Registrar for signature on the order:
9. Date of Despatch of the Order: