TMI Blog2012 (4) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... said amount from the assessment relating to the - the appeal of the assessee is to be allowed - IT Appeal No. 1058 (Mds.) of 2010 - - - Dated:- 23-1-2012 - Dr. O.K. Narayanan, U.B.S. BEDI and George Mathan, ABRAHAM P. GEORGE, JJ. R. Kumar for the Appellant. K.E.B. Rengarajan for the Respondent. ORDER Abraham P. George, Accountant Member This appeal is filed by the assessee against the order of the Commissioner of Income Tax (Appeals)-VI, Chennai, for the impugned assessment year. The grounds raised by the assessee are reproduced as under:- The appellant at the time of filing the return for the assessment year 2007-08, in addition to the regular income also admitted a sum of Rs. 4,28,750/- as performance incentive from his employer. A sum of Rs. 1,28,625/- was claimed as tax deducted at source by the employer for the said performance incentive. The case was selected for scrutiny for the assessment year 2007-08 and the income admitted by the appellant was accepted by the assessing officer ended up in the demand of Rs. 2,51,720/-. The reason for the demand is non availability for TDS credit claim of Rs. 1,28,625/-. On going through the assessment order th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that an appeal would lie only when the assessee denied his liability to be assessed. Here, the Assessing Officer had accepted the returned income. According to him, the case had become infructuous and he dismissed the appeal. 5. Now before us, the learned A.R. submitted that assessee had filed his return of income for the impugned assessment year wherein he had shown salary received from M/s SSL TTK Ltd. According to him, Form 16 issued by the said company, placed at page No.7 in paper-book, clearly shows that the income chargeable under the head "Salary" was Rs. 11,67,780/-. However, the assessee had aggregated with this amount, performance incentive of Rs. 4,28,750/- which was given by the said company to him in financial year 2007-08 relevant to the assessment year 2008-09, by mistake. According to him, the said company vide its letter dated 5th July, 2007, placed at page No.10 of paper-book, had informed him regarding performance incentive of Rs. 4,28,750/-. Such letter having been received before filing of the return for the impugned assessment year, assessee by mistake included the performance incentive also in the salary. The corresponding tax was also claimed for cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear there was any performance incentive received and shown by the assessee in his return of income. There upon, the learned A.R. filed a copy of return filed by the assessee for assessment year 2006-07 and submitted that assessee had joined M/s SSL TTK Ltd. only in March, 2006 as an employee and was not in receipt of any performance incentive for financial year 2005-06 from the said company. Learned A.R. submitted that prior to March, 2006 assessee was working with T.V. Sundaram Iyengar Sons Ltd. and the salary received therefrom along with one month salary received from SSL TTK Ltd. was duly shown in the return of income for assessment year 2006-07. Copy of SARAL tax return for assessment year 2006-07 was placed on record at page No.22 of paper-book. In so far as the statement in the letter of SSL TTK Ltd., regarding past performance incentive, learned A.R. submitted that the said company was using a standardized template for all employees while giving performance incentive, and hence this aberrance. 6. Per contra, learned D.R. submitted that a same amount was admittedly taxed twice both for the assessment year 2007-08 and 2008-09. He further stated that tax credit could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount was received in the subsequent year. As rightly relied on by the learned A.R., Circular No.14 of CBDT clearly emphasizes that the Revenue should not take advantage of an assessee's ignorance. One of the canons of taxation is that tax is to be collected from a subject as per law, and not a pie more or not a pie less. The A.O. ought have excluded the sum of performance incentive while completing assessment under Section 143(3) of the Act, since the said amount was received by the assessee in the subsequent year. He was aware that the said amount was received by the assessee in the next year, as is clear from the fact that TDS credit was not given by him for the impugned assessment year on the performance incentive. Though the CIT(Appeals) dismissed the appeal of the assessee in limine, we are not inclined to remit the issue back to him, all the facts being on record and not being disputed by the D.R. In any case, the primary duty of any Tribunal established under a statute is to ease the regours of procedure and render substantial justice without taking refuge under cumbersome technicalities, which would defeat the very purpose of its formation. We are, therefore, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008-09. Therefore, the income cannot be taxed in the assessment year 2007-08 and if it is done, the same amount will get taxed twice." 11.1 During the hearing of the appeal, the Id. Counsel for the assessee submitted that the assessee has wrongly paid tax and shown income with respect to incentive amount in the return. The assessee also claimed that although the Assessing Officer has accepted the return on the same income, but amount is added twice as the assessee has offered such income for the assessment year 2008-09 also. 12. The Id. CIT(A), while considering, but not accepting the appeal of the assessee has concluded to dismiss the appeal as per para 4.1 of his order, which is reproduced below: "4.1 Reference is invited to section 246A of the I.T. Act and it is noticed that CIT(A) can only alter, reduce, annul and enhance the order of the Assessing Officer. The appeal lies only when the assessee denies his liability to be assessed and in the instant case the AO has accepted the returned income and there is no denial of liability. When there is no liability, the case becomes infructuous and the appeal is dismissed." 13. Still aggrieved, the assessee filed further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut incentive amount pertaining to the financial year 2006-07 was communicated to the assessee by his employer vide letter dated 05.07.2007, the amount of incentive was determined in the next year relevant to the assessment year 2008-09, the assessment with respect to the said amount could only be made in the assessment year 2008-09 and not in 2007-08. The assessee, mistakenly offered the said amount in the assessment year under consideration and claimed TDS with respect to the said amount and the Assessing Officer has accepted the returned income, but did not give credit to the TOS pertaining to the incentive amount and it is a settled law that credit of TOS could be given in the year in which the income has been assessed. So, on this score also, the order of the Assessing Officer is not proper and justified. As far as first appellate authority is concerned, the assessee is denying its liability to tax with respect to the incentive amount, so the appeal was maintainable and even if the claim is made before the first appellate authority the same could be allowed. At this juncture, the assessee's counsel was asked to clarify if he was of the opinion that this amount is not taxable in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he arguments of both the sides, material on record and precedents as relied upon by rival sides, it is found that the assessee declared income of Rs. 14,86,210/- in his return filed on 09.07.2007 relevant to the assessment year 2007-08. The said return as processed under section 143(1) and the case selected for scrutiny and after due notice and considering the reply and material on record, the Assessing Officer accepted the returned income. It is not in dispute that the assessee himself declared the incentive income of Rs. 4,28,750/- as performance incentive for the financial year 2006-07 relevant to the assessment year 2007-08 making a claim of TDS in respect to the said income at Rs. 1,28,625/- on the basis of communication received by the assessee from SSL TTK Ltd. dated 05.07.2007, which letter has been placed by the assessee in his paper book at page 10 and the same reads as under: SSL - TTK Limited July 5,2007 Mr. R Natarajan Chennai Dear Mr. Natarajan, As in the past, we are pleased to award Performance Incentive for your performance during 2006-07 as follows: 30% on Basic Salary as performance Bonus (Apr '06 - Aug '06 Rs. 1,05,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, 1995, by the appellant for the assessment year in question. On January 12, 1998, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Income-tax Act to make amendment in the return of income by modifying an application at the assessment stage without revising the return. This appellant's appeal before the Commissioner of Income-tax (Appeals) was allowed. However, the order of the further appeal of the Department before the Income-Tax Appellate Tribunal was allowed. The appellant has approached this court and has submitted that the Tribunal was wrong in upholding the Assessing Officer's order. He has relied upon the decision of this court in National Thermal Power Company Ltd. v. CIT [1998] 229 ITR 383, to contend that it was open to the assessee to raise the points of law even before the Appellate Tribunal. The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee, which, on further appeal before the High Court, was once again confirmed, and on further appeal before the Apex Court, where the decision of the High Court was confirmed that the claim for deduction not made on the revised return could not be entertained by the Assessing Officer otherwise than by filing a revised return. 9. Following the said decision, we have no hesitation in confirming the order of the Tribunal by answering the substantial questions in favour of the Revenue. Consequently, the Tax Case (Appeal) stands partly allowed. No costs. " Therefore, the appeal of the assessee, being devoid of any merit, is rejected. THIRD MEMBER ORDER Dr. O.K. Narayanan, Vice-President (As a Third Member) - This appeal is filed by the assessee. The relevant assessment year is 2007-08. The appeal is directed against the order of the Commissioner of Income-tax (Appeals)-VI at Chennai dated 21-4-2010 and arises out of the assessment completed under section 143(3) of the Income-tax Act, 1961. 2. The assessee in this case is a salaried employee working for SSL-TTK Limited. He filed his return of income for the impugned assessment year 2007-08 on a total income of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employer for that assessment year. The fact being so, there is no need for the assessee to offer the very same amount for the assessment year 2007-08 and, therefore, that much of income may be excluded from the assessment of the impugned assessment year 2007-08. 5. The first appeal filed by the assessee was dismissed with the following observations by the Commissioner of Income-tax (Appeals):- "Reference is invited to section 246A of the I.T. Act, and it is noticed that CIT(A) can only alter, reduce, annul and enhance the order of the Assessing Officer. The appeal lie only when the assessee denies his liability to be assessed and in the instant case the Assessing Officer has accepted the returned income and there is no denial of liability. When there is no liability, the case becomes infructuous and the appeal is dismissed." 6. Aggrieved by the order of the Commissioner of Income-tax(Appeals), second appeal was filed before the Tribunal. 7. The learned Accountant Member authored the order for the Tribunal. After examining the facts of the case in a detailed manner, the learned Accountant Member found that the assessee was under a mistake when he did include the perfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assessment year 2007-08 received in the assessment year 2008-09 and offered by the assessee himself in the return for the year under consideration, when returned income came to be accepted could be directed to be deleted as held by the Accountant Member, OR Could the assessment framed by accepting the returned income, in the absence of filing of revised return excluding such incentive, in view of the decision of the Hon'ble Supreme Court in the case of Goetze(India) Ltd. v. CIT [2006] 284 ITR 323 (SC), be upheld as held by Judicial Member?" 10. The Hon'ble President nominated me as the Third Member and it is how these questions have been placed before me for adjudication. 11. I heard Shri R. Kumar, the learned counsel appearing for the assessee and Shri KEB Rengarajan, the learned Standing Counsel appearing for the Revenue. 12. The facts and circumstances of the case have been elaborately discussed by the Hon'ble Accountant Member in his order and other particulars are very much available in the orders of the assessing authority, the Commissioner of Income-tax(Appeals) and in the statement of facts and the grounds of appeal filed before the different authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e which the Officers of the Department should adopt in dealing with assessees in matters affecting their interests and convenience. It appears that these instructions are not being uniformly followed. 2. Complaints are still being received that while Income-tax Officers are prompt in making assessments likely to result into demands and in effecting their recovery, they are lethargic and indifferent in granting refunds and giving reliefs due to the assessees under the Act. Dilatoriness or indifference in dealing with refund claims (either under section 48 or due to appellate, revisional, etc. orders) must be completely avoided so that the public may feel that the Government are actually prompt and careful in the matter of collecting taxes and granting refunds and giving reliefs. 3. Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-09, for otherwise the assessee would lose his legitimate right of availing credit of TDS made out of the income earned by him. All these facts were very much available before the assessing authority while completing the assessment for the impugned assessment year 2007-08. The assessing authority was all the more aware that though he has assessed the sum of Rs. 4,28,750/- as the income of the impugned assessment year, he has not given the assessee the benefit of the credit of the corresponding TDS. Inspite of such a situation, where the assessee was denied credit of the TDS, it is very evident for the assessing authority to understand that the amount of Rs. 4,28,750/- was offered for the impugned assessment year by mistake and it was offered for the assessment year 2008-09, for which assessment year the assessment has been completed and it has become final. Inspite of this factual knowledge, the assessing authority thought to assess the amount of Rs. 4,28,750/- as the income of the assessee for the impugned assessment year 2007-08 only on the technical ground that the said amount was offered for assessment by the assessee himself voluntarily. 18. The Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Hon'ble Supreme Court in the case of Goetze(India) Ltd. ( supra ), has no application in this context. The assessee is not asking for any exemption or any other concession. The assessee has not asked for any concession at all. The entire sum of Rs. 4,28,750/- has already been assessed for the assessment year 2008-09. Then, where is the question of concession or exemption? The prayer of the assessee is that his returning of the said amount as taxable income for the assessment year 2007-08 was a bona fide mistake and he be not subjected for taxation twice on the same amount. Is it not a legitimate claim made by the assessee? 22. In the facts and circumstances of the case, I find that the assessment of Rs. 4,28,750/- to income-tax for the assessment year 2007-08 is against law. Therefore, I agree with the order of the learned Accountant Member in giving direction to the assessing authority to delete the said amount of Rs. 4,28,750/-from the assessment relating to the assessment year 2007-08. I agree with the learned Accountant Member that the appeal of the assessee is to be allowed. 23. It is a settled principle of jurisprudence that delivery of justice sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
