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Income Tax Appellate Tribunal, KOLKATA ‘A’ BENCH, KOLKATA
Before: Shri P.M. Jagtap, Vice-(KZ) & Shri S.S. Viswanethra Ravi
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA ‘A’ BENCH, KOLKATA
Before Shri P.M. Jagtap, Vice-President (KZ) and Shri S.S. Viswanethra Ravi, Judicial Member
I.T.A. No. 420/KOL/2017 Assessment Year: 2013-2014
Income Tax Officer,.............,.................................................Appellant Ward-2(4), Durgapur, Aayakar Bhawan, Durgapur-713216
-Vs.- Sri Dhananjay Kumar Singh,..............................................Respondent S/o. Bijoy Kumar Singh, Siduli, 5 No. Bauri Para, Kora Para, Khandra, Andal, Durgapur-713322 [PAN: BNIPS 4759 Q] & C.O. No. 111/KOL/2018 (arising out of ITA No. 420/KOL/2017) Assessment Year: 2013-2014
Sri Dhananjay Kumar Singh,..............................................Cross Objector S/o. Bijoy Kumar Singh, Siduli, 5 No. Bauri Para, Kora Para, Khandra, Andal, Durgapur-713322 [PAN: BNIPS 4759 Q] -Vs.- Income Tax Officer,.............,.................................................Respondent Ward-2(4), Durgapur, Aayakar Bhawan, Durgapur-713216
Appearances by: Shri Sankar Halder, Addl. CIT, Sr. D.R., for the Department Shri Subho Chakraborty, Advocate, for the assessee
Date of concluding the hearing : November 29, 2018 Date of pronouncing the order : January 25, 2019
O R D E R Per Shri P.M. Jagtap, Vice-President (KZ):- This appeal is preferred by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-Durgapur dated 10.11.2016 and
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
the same is being disposed of along with the Cross Objection filed by the assessee being C.O. No. 111/KOL/2018.
The grounds raised by the Revenue in its appeal reads as under:- “(1) In the facts and circumstances of the case, the ld. CIT(Appeals), Durgapur has erred by considering that the revised return of income submitted on 06.05.2014 is the only correct return and the earlier return filed by the assessee are not valid return of income. (2) The ld. CIT(Appeals), Durgapur erred in considering the return filed on 06.05.2014 as the only valid return and therefore deleting the assessment of Rs.1,08,35,260/- made by the AO as per original return of income”.
The assessee in the present case is an individual, who is carrying on the business as an agent of M/s. Golden Trust Financial Services on commission and brokerage basis. In this case, three returns of income were filed for the year under consideration as follows:- (i) On 24.09.2013 declaring total income of Rs.1,08,35,260/- (ii) on 26.09.2013 declaring total income of Rs.1,27,79,380/- (iii) On 06.05.2014 declaring total income of Rs.1,78,500/-.
Since the return of income originally filed by the assessee on 24.09.2013 was not filed within the time limit allowed under section 139(1), the Assessing Officer was of the view that the assessee was not entitled to file the revised returns under section 139(5) of the Act. According to him, the revised returns of income filed by the assessee on 26.09.2013 and 06.05.2014, therefore, were not valid in the eyes of law and the assessment was required to be made with reference to the return of income originally filed by the assessee on 24.09.2013 declaring total income of Rs.1,08,35,260/-. In this regard, the explanation offered by the assessee was not found convincing and satisfactory by the Assessing Officer and accordingly the assessment was completed by him on the total
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
income of the assessee at Rs.1,08,35,260/- vide an order dated 31.03.2016 passed under section 143(3) of the Income Tax Act, 1961.
Against the order passed by the Assessing Officer under section 143(3), an appeal was preferred by the assessee before the ld. CIT(Appeals) and the following submissions were made on behalf of the assessee in support of his case during the course of appellate proceedings before the ld. CIT(Appeals):- “That the brief fact of the case is that the appellant’s previous consultant e-filed original and revised return declaring total income of Rs.1,08,35,260/- and Rs.1,27,79,380/- respectively with evil intention to trouble the appellant with forged signature. After knowing the facts the appellant filed the correct income in his revised returns of Rs. 1,78,500/- which is true.
Appellant was a petty commission agent of a financial company G.T.S and TDS was duly made for F.Y- 2012-13, the copy of which is annexed herewith. Appellant has no other source of income and his original income was Rs. 1,78,500/-
That the central grievance of Appellant is that the income shown in original as well as in first revised return were incorrect and they were filed by Appellant's previous consultant with evil intention to trouble the Appellant with forged signature. Appellant was totally in dark on such uncanny development not only this, the same things were tricked with other agents of G.T.S who were Appellant's colleagues by same consultant. When the case was taken on scrutiny Appellant appeared and repeatedly averred the said fact. Now what is mysterious is that others persons order as mentioned before were corrected suo moto by Ld. A.O u/s 144, the copy of which are annexed herewith- accepting the actual income of them. But in appellant's case original return figure was accepted and assessed overruling the actual income, wherein the 26AS as well as Affidavit submitted by Appellant. Thus the said high pitched assessment was in total contradiction with identical assessment orders of other person where the causes of action were the same. A.O being Quasi judicial authority exercising the power of Civil procedure Code on adjudication (order of C.P.C) had acted in gross violation of basic tenets of CPC. How come two outcomes possible on same cause of action?
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
Secondly Ld. A.O cannot belittle and overrule the documental and evidential value of Affidavit filed by Appellant to him. The said Affidavit was passed as a revised statement of Appellant of delineating all facts and circumstances including declaring actual income. It is judicially settled law that when the original return was in correct and time for last revised return expired, Appellant can filed revised statement declaring correct income. Since the second revised return was filed within time, so there was substitution of original return. It is settled law that when the original return is substituted by revised return then the said revised return partakes the character of original return. So the said revised return can be corrected by Affidavit as the last revised return was filed after expiry of due time. So Appellant's Affidavit was as good as original return. So Ld. A.O should have accepted income of Rs. 1,78,500/-.
Allahabad High Court in Dhampur Sugar Mills Ltd. v. Commissioner of Income Tax, Delhi Central, had the occasion to distinguish between revised return and correction of the return. It was held:
There is a distinction between a revised return and a correction of the return. If the assessed files some application for correcting a return already filed or making amends therein, it would not mean that he has filed a revised return. It will still retain the character of an original return, but once the revised return is filed, the original return must be taken to have been withdrawn and to have been substituted by a fresh return for the purpose of the assessment. Appellant's case is same as that of said judicial posture. So, kindly, quash the assessment Order”.
The above submissions made by the assessee in writing were forwarded by the ld. CIT(Appeals) to the Assessing Officer for the latter’s comment. In the remand report submitted to the ld. CIT(Appeals) on 24.10.2016, the following comments were offered by the Assessing Officer:- “That the assessee Shri Dhananjay Singh (PAN BWIPS4759Q) filed his Original return of income for the A.Yr.2013-14 on
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
24/09/2013 declaring a total income of Rs.1,08,35,260/- which was filed after due date of the said Assessment Year. Subsequently he filed two revised returns of income on 26/09/2013 showing total income of Rs.1,27,79,380 and 06/05/2014 showing total income of Rs.1,78,500/-.
ii) The case was selected under scrutiny and notice u/s. 143(2) of the I.T. Act, 1961 dated 28/08/2015 was issued and served upon the assessee.
iii) During the assessment proceedings summon u/s 131 was issued to Shri Abhishek Sharma on 29/02/2016 requiring his personal presence in the Office of the undersigned and his statement was recorded on 07/03/2016. The portion of his deposition recorded u/s 131 in Q.13 is as under:
"Q13. Shri Dhananjay Kumar Singh alleged that you have filed his return without knowing him for A.Y.2013-14 in original and revised. Is it true or not? Reason thereof.
Ans: It is not true as I have already handover his user id and password in the month of April, 2013. NO any document(s) had been signed before giving his password."
iv) The decision of the criminal dispute between Abhishek Sharma and Dhananjay Kumar Singh was pending before the Hon'ble court of Law at the time of assessment”.
After considering the submissions made by the assessee as well as the material available on record, the ld. CIT(Appeals) decided the issue in favour of the assessee for the following reasons given in his impugned order:- “I have perused the report of the A.O. Perusal of submission made by the A.O shows that the A.O. has not commented any material facts over the submission of the appellant on following issues:-
26AS does not support the income assessed by the A.O.
That the A.O has not made any inquiry in order to ascertain the actual income from the bank account of the appellant.
The fact narrated in the affidavit has not been controverted by the A.O. The assessment of Shri Ghanashyam Tanti also shows that same instance has happened in case of Shri Dhananjay Kumar Singh. The facts of the case of Shri
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
Ghanashyam Tanti accepted by the ITO, Ward-l(2), Durgapur and his income was assessed the revised return which was filed on 06.05.2014 wherein it was observed by the A.O that the declaration made by the Ghanashyam Tanti, who is also victim of Shri Abhishek Sharma (who filed forged return of income). That his revised return of income was only the return which was filed by him. In the case of Mr. Dhananjay Kumar Singh also the Income Tax Return for the A.Y 2013-14 is the only true income which was filed by the appellant on 06.05.2014. Considering the fact of the aforesaid case where Mr. Abhishek Sharma did mischief with Shri Ghanashaym Tanti and it was found correct the mischief done in case of Shri Dhananjay Kumar Singh is also held as correct because the appellant is commission agent in M/s. Golden Trust Financial Services. No extra payment has been reported by M/s. Golden Trust Financial Services on which TDS has been deducted. The bank account of Shri Dhananjay Kumar Singh does not reveal any excess deposit other than the disclosed amount. It is also clear that Mr. Abhishek Sharma was one of the ex-council of the appellant. Earlier relation of Abhishek Sharma and Mr. Dhananjay as counsel and client is also established. Considering the facts that the revised return filed dated 06.05.2014 was only the correct return and was only the return filed by the appellant, therefore, income assessed by A.O of Rs. 1,08.35,260/- without any basis is hereby deleted and his revised return of income is treated as true. Therefore, the income of the appellant is reduced to the extent of his return of income filed dated 06.05.2014”.
The ld. CIT(Appeals) thus directed the Assessing Officer to accept the return of income filed by the assessee on 06.05.2014 declaring total income of Rs.1,78,500/-. Aggrieved by the order of the ld. CIT(Appeals), the Revenue has preferred this appeal before the Tribunal.
The ld. D.R. strongly supported the order passed by the Assessing Officer assessing the total income of the assessee at Rs.1,08,35,260/- on the basis of return filed on 24.09.2013 submitting that the return filed by the assessee on 24.09.2013 alone was a valid return and the subsequent two returns filed by him were not valid as rightly held by the Assessing Officer. He contended that the ld. CIT(Appeals), however, overlooked this stand taken by the Assessing Officer by relying on the relevant provisions
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
of section 139(1) and 139(5) and accepted the return of income filed by the assessee on 06.05.2014 as a valid return by accepting the submissions made by the assessee.
The ld. Counsel for the assessee, on the other hand, strongly relied on the impugned order of the ld. CIT(Appeals) in support of the assessee’s case and submitted that all the relevant facts and circumstances of the case have been properly appreciated by the ld. CIT(Appeals) while treating the return of income filed on 06.05.2014 as the only valid return filed in the assessee’s case.
We have considered the rival submissions and also perused the relevant material available on record. As submitted on behalf of the assessee before the authorities below as well as before us, the two returns of income filed in the case of the assessee on 24.09.2013 and 26.09.2013 were not filed by the assessee but the same were filed by his earlier Consultant Shri Abhishek Sharma with evil intention to trouble the assessee with forged signatures. The said Shri Abhishek Sharma had done a similar mischief even in case of some other colleagues of the assessee who were also the agents of M/s. Golden Trust Financial Services. In cases of some of such colleagues, the concerned Assessing Officers had accepted the stand of the assessees after appreciating the facts and circumstances of the case and had ignored the returns filed by Shri Abhishek Sharma. The similar facts and circumstances brought to the notice of the Assessing Officer by the assessee, however, were not appreciated by the Assessing Officer in the right perspective and assessment was made by him at high pitched figure of Rs.1,08,35,260/- as declared by Shri Abhishek Sharma in the forged return without verifying the transactions reflected in the Bank account of the assessee, figures reflected in 26AS as well as the affidavit filed by the assessee. Even in the
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
remand report submitted to the ld. CIT(Appeals), the Assessing Officer did not make any adverse comment on the figures reflected in Form No. 26AS which did not support the income assessed by the Assessing Officer. He also did not controvert any facts affirmed by the assessee on oath in the affidavit. Keeping in view all these facts of the case, we are of the view that the ld. CIT(Appeals) was fully justified in directing the Assessing Officer to ignore both the returns filed in the case of the assessee on 24.09.2013 and 26.09.2013 by Shri Abhishek Sharma and to accept the return of income as filed by the assessee on 06.05.2014 as the said return was the only return, which disclosed the true income of the assessee. We, therefore, uphold the impugned order of the ld. CIT(Appeals) on this issue and dismiss the appeal filed by the revenue.
As a result of our decision rendered above while disposing of the appeal of the revenue, the Cross Objection filed by the assessee has become infructuous and the same is dismissed accordingly.
In the result, the appeal of the Revenue as well as the Cross Objection filed by the assessee both are dismissed. Order pronounced in the open Court on January 25, 2019.
Sd/- Sd/- (S.S. Viswanethra Ravi) (P.M. Jagtap) Judicial Member Vice-President (KZ) Kolkata, the 25th day of January, 2019
Copies to : (1) Income Tax Officer, Ward-2(4), Durgapur, Aayakar Bhawan, Durgapur-713216 (2) Sri Dhananjay Kumar Singh, S/o. Bijoy Kumar Singh, Siduli, 5 No. Bauri Para, Kora Para, Khandra, Andal, Durgapur-713322
ITA No. 420/KOL/2017 & C.O. No. 111/KOL/2018 (in ITA No. 420/KOL/2017 A.Y. 2013-2014 Sri Dhananjay Kumar Singh
(3) Commissioner of Income Tax (Appeals)-Durgapur,
(4) Commissioner of Income Tax- , (5) The Departmental Representative (6) Guard File By order
Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.