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TMI Blog2012 (4) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... im of Rs. 1,28,625/-. On going through the assessment order the appellant realized that the performance incentive which was admitted by him for the assessment year 2007-08 actually belong to the assessment order 2008-09. On seeing the Form 16 given by the company for the assessment year 2008-09 the performance incentive of Rs. 4,28,750/- was included there and the appellant without knowing that it was admitted in the assessment year 2007-08 also admitted in the assessment year 2008-09. In effect the same performance incentive of Rs. 4,28,750/- was admitted both in the assessment year 2007-08 and 2008-09, whereas TDS credit of Rs. 1,28,625/- is available only for the assessment year 2008-09. The appellant being aggrieved by the order for the assessment year 2007-08 filed on appeal before the Commissioner of Income Tax (Appeals VI) The Commissioner dismissed the appeal inviting reference to 246 of the Income-tax Act, 1961. The fact remains that the amount Rs. 4,28,750/- has been taxed twice by the Income Tax Department. Hence the appeal. 2. Assessee has also filed an additional ground wherein it assails the action of the CIT(Appeals) in dismissing the appeal in limine. 3. Short ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. The corresponding tax was also claimed for credit along with tax deductions on salary of Rs. 11,67,780/-. Learned A.R. submitted that the A.O. while completing assessment, accepted the return but did not give credit for the tax deduction made on performance incentive of Rs. 4,28,750/-. For assessment year 2008-09 the assessee in his return of income once again included the same amount of Rs. 4,28,750/- and for this learned A.R. placed reliance on page No.17 of paper-book which is an annexure to Form 16 issued by M/s SSL TTK Ltd. for assessment year 2008-09. According to him, though the assessee had returned the same amount as a part of his income for the impugned assessment year, the Assessing Officer in the assessment for assessment year 2008-09 also considered it as a part of assessee's income, whereas as he ought have excluded it, considering the mistake committed by the assessee. Therefore, according to him, the said amount of performance incentive was included twice by the assessee for assessment year 2007-08 as well as assessment year 2008-09 and credit for TDS also claimed both the years. The Assessing Officer had accepted the returns in so far as it related to the salary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that tax credit could be given to the assessee only in the year in which corresponding income was admitted. 7. We have perused the orders and heard the rival contentions. There is no dispute that assessee had filed return for the impugned assessment year which was accepted in a scrutiny assessment done under Section 143(3) of the Act. Assessee by mistake included in the said assessment year, a sum of Rs. 4,28,750/- received as performance incentive in the subsequent year. As per the assessee, such amount was again included by him in the return for the subsequent year and A.O. while completing assessment for the impugned assessment year did not give credit for the TDS relatable to performance incentive. Records placed by the assessee would show that he was in the employment of SSI TTK Ltd. only from March, 2006 (paper-book page No.28) and prior to that he was with T.V. Sundaram Iyengar & Sons Ltd. (paper-book page Nos.23 to 27). In assessment year 2006-07 relevant to previous year ending 31.3.2006, assessee had shown in his return of income salary received from both these concerns. Performance incentive of Rs. 4,28,750/- was received by the assessee on 5th July, 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s formation. We are, therefore, of the opinion that to meet the ends of justice, the amount of Rs. 4,28,750/- shown by the assessee as performance incentive has to be excluded from the assessee's total income for impugned assessment year. Directed accordingly. 8. In the result, the appeal filed by the assessee stands allowed. U.B.S. Bedi, Judicial Member. - Despite best persuasion of myself, I am not able to agree with the finding and conclusion as drawn by the Id. Accountant Member and I write my order as under: 10. Facts indicate 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 was processed under section 143(1) and the case was selected for scrutiny and the notice under section 143(2) was issued. The Id. AR of the assessee appeared before the Assessing Officer on the dates of hearing on 07.12.2009, 11.12.2009 and 15.12.2009, details were furnished as called for in respect of mutual fund investment, which was claimed to be out of salary earning and accumulation of saving bank account about which necessary documentary evidences were produced. The assessment was completed accepting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led further appeal and contested in the memorandum of appeal that the assessee, at the time of filing of the return for 2007-08, in addition to 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 assessee was accepted by the Assessing Officer, which 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, the assessee is stated to have realized that the performance incentive which was admitted by him for the assessment year 2007-08 actually belongs to the assessment order 2008-09. On seeing the Form 16 given by the company for the assessment year 2008-09, the performance incentive of Rs. 4,28,750/- was included there and the assessee without knowing that it was admitted in the assessment year 2008-09 also admitted in the assessment year 2007-08. In effect the same performance incentive of Rs. 4,28,750/- was admitted both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le in 2007-08, then why a revised return was not filed to exclude such amount when the assessee himself offered the same amount for the assessment year 2008-09 in the return for that year filed on 15.07.2008 with TDS certificate etc. The assessee simply insisted that since incentive amount, though pertaining to the year under consideration, it is taxable in the subsequent year, because the same was determined and communicated to the assessee in the subsequent year. Since legitimate and proper tax has to be collected from the assessee, therefore, even if revised return was not filed and such amount was not excluded from the total income before the Assessing Officer, the Id. CIT(A) could very well decide the issue without going into the ground of non- maintainability of the appeal and the assessee's appeal should not have been dismissed. It was prayed for exclusion of income, taxed twice. 16. The Id. DR submitted that the best course for the assessee was to file revise return if he wanted to exclude such income, when he came to know about TDS on such amount in next year on filing of his return for the subsequent year, which event took place on 15.07.2008, so he could revise his inco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rformance Bonus (Sept. '06 - Mar '07 Rs. 1,52,250/- In recognition and appreciation of the exceptional overall performance of the Company during 2006-07, the Management is pleased to grant a one time Ex-gratia amounting to Rs. 1,71,500/- TOTAL Rs. 4,28,750/- Less: Tax Deducted at Source @ 30% Rs. 1,28,625/- Net after tax Rs. 3,00,1251- (Rupees three lakhs one hundred and twenty five only) We have no doubt you will endeavour to make even more significant contribution to the growth and betterment of the company With best wishes Yours Sincerely Sd/- TR Venkatesh NB: The amount is credited to your SB ale with ICICI Bank." The assessee is stated to have offered same amount of Rs. 4,28,750/- in the return filed by him for the assessment year 2008-09 on 15.07.2008 and also claimed TDS of Rs. 1,28,625/- there. 17.1 The assessment proceedings for the assessment year 2007-08, as per assessment order Col.11 started on 07.12.2009 and the assessment order was passed on 31.12.2009, whereas the assessee has filed the return for the assessment year 2008-09 on 15.07.2008 and TDS certificate enclosed with that return, as stated to have filed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim for deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs. " Since the assessee has not filed any revised return and did not make any such claim Before the A.O. during assessment proceedings, despite having filed a return of Income for the subsequent year i.e. for A Y 2008-09,on 15.07.2008, when time limit was available upto 31.03.2009 to revise the return for the assessment year 2007-08 filed on 09.07.20077, therefore, in my considered view, the claim of the assessee for exclusion of the incentive income offered by the assessee pertaining to the financial year 2006-07 relevant to the assessment year 2007-08, even if received in F Y 2007-08 relevant to the assessment year 2008-09, in the absence having excluded such income under the process envisaged under law (there was no change in income as declared and assessed), could not be allowed (to be excluded) in 2n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled for the impugned assessment year 2007-08, the assessee had admitted an income of Rs. 4,28,750/-, being the performance incentive received from SSL-TTK Limited. This amount was in fact received by the assessee on 5-7-2007, after the close of the relevant previous year, but before the due date of filing of the return. As the incentive was given to the assessee for his efforts made in the previous year relevant to the assessment year 2007-08, the assessee offered the said amount of Rs. 4,28,750/- as his income for the impugned assessment year 2007-08. But the twist of the situation came when his employer company M/s. SSL-TTK Limited considered the said amount of performance incentive only for the subsequent assessment year 2008-09. The result is that the assessee's employer issued the TDS certificate for the assessment year 2008-09. It was imperative upon the assessee to co-relate the income generated and the TDS made thereon, for the purpose of claiming credit of the TDS against the tax liability. Therefore, the assessee had to return the performance incentive of Rs. 4,28,750/- as his income, again for the assessment year 2008-09. Once he included this incentive income of Rs. 4, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subsequent previous year. He observed that one of the cannons 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. He found that the assessing authority ought to have excluded the performance incentive while completing the assessment under section 143(3) for the impugned assessment year, as he was aware that the incentive amount was received by the assessee only in the subsequent previous year and more particularly when the assessing authority has not given the TDS credit for that amount for the impugned assessment year even though the incentive amount was offered for taxation. He held that the primary duty of the Tribunal is to ease the rigours of procedure and render substantial justice without taking refuge under the cumbersome technicalities. He accordingly held that the amount of Rs. 4,28,750/- offered for taxation by the assessee for the impugned assessment year is to be excluded from the assessee's total income. Accordingly, the appeal was proposed to be allowed by the learned Accountant Member. 8. But the learned Judicial Member could not agree with the order proposed by the learned Accountant Member. The learned Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self has offered the said amount as his income for both the above assessment years. 14. The case of the assessee is that the above stated amount of Rs. 4,28,750/- was offered by him as income for the impugned assessment year 2007-08 by mistake, whereas the said amount was rightly offered as income for the subsequent assessment year 2008-09 and the same was assessed after getting the TDS credit and assessment has become final. In order to rectify his mistake of offering the income of Rs. 4,28,750/- for taxation for the assessment year 2007-08, the assessee has not filed any revised return. In these circumstances, the question is whether the assessee is entitled for relief so that the amount of Rs. 4,28,750/- may be excluded from the taxable income of the assessee for the impugned assessment year 2007-08. For the sake of clarity, it is to be made clear that there is no dispute whatsoever as far as the assessment year 2008-09 is concerned. The dispute is only with reference to the impugned assessment year 2007-08 as to whether the said amount of Rs. 4,28,750/- should be again taxed for the impugned assessment year or it should be excluded from taxation for the impugned assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough, therefore, the responsibility for claiming refunds and reliefs rests with assessee on whom it is imposed by law, officers should- (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. 4. ** ** ** 5. While officers should, when requested, freely advise assessees the way in which entries should be made in various forms, they should not themselves make any in them on their behalf. Where such advice is given, it should be clearly explained to them that they are responsible for the entries made in any form and that they cannot be allowed to plead that they were made under official instructions. This equally applies to the Public Relation Officers. 6. The intention of this circular is not that tax due should not be charged or that any favour should be shown to anybody in the matter of assessment, or that where investigations are called for, they should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sult of the assessment, there is no scope for appeal. It is the case of the Commissioner of Income-tax (Appeals) that an appeal lies only when the assessee denies his liability to be assessed and in the present case as the assessing authority has accepted the returned income, there is no denial of liability from the side of the assessee. These are all reasonings for self consumption. The Income-tax Act does not authorize levy of tax on the same amount of income more than once. A particular amount of income can be assessed only for once for a particular assessment year. This is very certain. In the present case the subject income has already been assessed for the assessment year 2008-09 and that assessment has become final. Therefore, it is clear that it is not at all possible to assess the same income again for the assessment year 2007-08. There is no such enabling provision anywhere in the Income-tax Act; for that matter not under any other taxing statute. 19. The Income-tax Department is collecting tax not for itself. It is collecting tax for the Sovereign State, that is, Union of India. Union of India as the sovereign authority does not require to levy tax on an amount returned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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