Income Tax Appellate Tribunal - Chandigarh
Shakuntla Devi vs Income Tax Officer on 10 November, 2005
Equivalent citations: [2006]152TAXMAN20(CHD), (2006)99TTJ(CHD)917
ORDER
N.K. Saini, A.M.
1. This is an appeal by the assessee against the order of learned CIT(A)-II, Ludhiana, dt. 14th Dec., 2004.
2. The only grievance of the assessee relates to rejection of claim under Section 88B of IT Act.
3. The facts of the case in brief are that the assessee claimed rebate of tax under Section 88B of IT Act by claiming to be a senior citizen above the age of 65 years. The AO pointed out that in the return filed and in the PAN card, the date of birth of the assessee had been shown as 1st Jan., 1938. As such the assessee had not attained the age of 65 years as on 31st March, 2002 and was not eligible for rebate of Rs. 15,000 under Section 88B of IT Act. During the course of appellate proceedings, the assessee filed a certificate issued by the S.M.O, Khanna, justifying that the assessee's age was about 70 years and as such she was entitled to rebate as per provisions of Section 88B. The AO did not accept the contention of the assessee by stating that in the certificate furnished, specific date of birth had not been mentioned and it is only stated that the assessee appeared to be 70 years of age. According to the AO, the date of birth mentioned in the return of income and also in the PAN card is to be considered as correct date of birth of the assessee and no cognizance be given to the certificate furnished by the assessee. Accordingly, the rebate claimed was disallowed.
4. Before the learned CIT(A), the assessee furnished an affidavit along with the photocopy of Election Commission card' wherein her age was mentioned as 59 years as on 1st Jan., 1994 and stated that in the year 2001-02 the assessee was more than 65 years of age. It was stated that date of birth given on the PAN card was wrong due to oversight and exact date of birth was 1st Jan., 1935.
5. Learned CIT(A) did not accept the claim of the assessee by stating that the affidavit has its sanctity only when there is no corroborative evidence on record and in assessee's case the date of birth i.e., 1st Jan., 1938 was mentioned voluntarily by the assessee in the PAN card as well as in the IT return and there was no such evidence as birth certificate from the municipality or high school certificate which could prove the correct date of birth. He further stated that the assessee had not taken any effort for rectification of date of birth as mentioned in the PAN card and no evidence had been placed on record which reflected that the assessee had applied for the amendment of correct date of birth in the PAN card. He, accordingly confirmed the action of the AO. Now the assessee is in appeal.
6. Learned counsel for the assessee reiterated the submissions made before the authorities below and submitted that the identity card issued by the Election Commission of India revealed that age of the assessee as on 1st Jan., 1994 was 59 years, as such for asst. yr. 2002-03 the assessee was senior citizen and was eligible to claim rebate under Section 88B of IT Act. He further submitted that due to oversight, the date was mentioned wrongly in the application furnished for issuing of PAN card and the same date had been mentioned in the return of income but actual date of birth of the assessee was 1st Jan., 1935 and for that purpose, affidavit had also been furnished, the contents of which had not been rebutted.
7. In his rival submissions, learned Departmental Representative for the Revenue strongly supported the orders of authorities below.
8. I have considered the rival submissions and also gone through the material available on record. In the present case, the issue relates to rebate under Section 88B which is available to the senior citizens of India who are having the age of or more than, 65 years. In the case of the assessee, no birth certificate issued by the municipality/Gram Panchayat/school, etc. had been furnished. There are two documents which are reflecting different dates of birth, one is the PAN card which is showing the date of birth as 1st Jan., 1938 and another one is the identity card issued by the Election Commission of India wherein the age mentioned as on 1st Jan., 1994 is 59 years. It is true that the rebate under Section 88B is allowable to the senior citizens of India only and the identity card is also issued by the Election Commission of India to the citizens of India who are eligible to cast their votes. Therefore, the date mentioned in the documents issued by the Government of India to the citizens should be given preference while considering other documents. The assessee by way of affidavit had also stated that her actual date of birth was 1st Jan., 1935 and due to oversight it was mentioned as 1st Jan., 1938 on the PAN card instead of 1st Jan., 1935. The claim of the assessee is also supported by the certificate issued by the SMO Khanna, who certified that the age of the assessee in the year 2003 was about 70 years. It is noticed that in the assessment order as well as in the impugned order of learned CIT(A), exact date of the certificate issued by the SMO had not been given but since the assessment order had been passed on 25th Sept., 2003 and the dates of hearing were 25th July, 2003 and 25th Aug., 2003, so, it can be presumed that the certificate mentioning the date (age) about 70 years was issued in the year 2003. If these documents are to be considered i.e., the identity card issued by the Election Commission of India, the affidavit of the assessee, the contents of which had not been rebutted, the certificate of SMO, Khanna, which had not been disbelieved, the age of the assessee as on 31st March, 2002 was more than 65 years. Therefore, she was entitled to the rebate under Section 88B of IT Act. I may mention here that although the evidence in the shape of PAN card was against the assessee but the preponderance of probabilities lies in favour of the assessee since other documents i.e., the identity card issued by the Election Commission of India and the certificate issued by the SMO, Khanna, go in her favour.
9. In view of the aforesaid discussion, I set aside the order of learned CIT(A) on this issue and direct the AO to allow the claim of the assessee for the rebate under Section 88B of IT Act.
10. In the result the appeal of the assessee is allowed.