Case Law Details
Navneet Dutta Vs ITO (ITAT Delhi)
Assessee filed his original return of income on 10.01.2012 for the AY 2011-12 and in the said return due to clerical/typographical error, the assessee could not claim loss from house property. Later on the assessee revised the return of income on 18.06.2012.
Assessee has filed rectification application u/s 154 and the AO held that Since the original returns was filed after the due date so the same cannot be revised. Hence, the loss from house property claimed in revised return is not tenable.
CIT (A)also rejected the assessee’s appeal on the ground that this revised claim should have been made by a proper return of income. Since it has not been done, he sustained the order of AO.
Tribunal noted that assessee has inadvertently claimed lesser interest on house property loan. Assessee tried to rectify the mistake when he discovered the same by filing revised return but the same was not entertained by the authorities below and held that such claim cannot be revised u/s 154 of the Act as it was not made in the timely return of income filed. Tribunal noted that Hon’ble Supreme Court in case of Goetze (India) Ltd. vs. CIT 157 taxmann.com 1 (SC) has held that it would not impinge upon the powers of the ITAT to admit the claim otherwise than by revised return. Tribunal in the interest of substantial justice admitted the claim and remitted the issue to the file of AO to consider the revised return and pass an order in accordance with law.
It may be noted that utpto Ay 2016-17, only ITRs filed within the due date u/s 139(1) could be revised and belated returns filed u/s 139(4) could not have been revised as per law. It may be note that utpto Ay 2016-17, only ITRs filed within the due date u/s 139(1) could be revised and belated returns filed u/s 139(4) could not have been revised as per law.
FULL TEXT OF THE ORDER OF ITAT
This appeal by the assessee is directed against the order of ld. CIT (Appeals)-21, New Delhi dated 31.01.2018 pertaining to the Assessment Year 2011-12.
2. The grounds of appeal taken by the assessee read as under :-
“1. The Ld. Assessing Officer CPC, has erred in law and on facts in making of disallowance of claim of Loss from House Property u/s 24 of Income Tax Act, 1961 of Rs.6,44,732/- and restricting the same to Rs. 1,50,00/- on account of consideration of property as a self occupied property.
2. The Ld. Assessing Officer Circle 67(1), has further failed to appreciate the correct claim of Loss from House Property u/s 24 of Income Tax Act, 1961 of Rs.6,44,732/- with considering the merits and documentary evidence of Income from House Property, thereby refusing rectification U/s 154 of the Income Tax Act, 1961, without any speaking orders.
3. The Ld. AO and Ld. CIT (A) both failed to ascertain the correct Income from House Property and only restricting the loss u/s 24 to the tune of Rs.1,50,000/- resulting in incorrect assessment on account of rental received by the assessee which was also declared as per Revised Income Tax Return.
4. Further the CIT (A) has further failed to appreciate that due to typographical error the Claim of Loss from House Property was restricted to Rs.1,50,000/- as in case of Self Occupied Property and further ignored that the Tax Computation made by the assessee was on account of the said claim of loss.
5. That the CIT (A) and AO both have failed to appreciate that due to typographical error the Claim of Loss from House Property was restricted to Rs.1,50,000/- as in case of Self Occupied Property and further ignored that the Tax Computation made by the assessee was on account of the said claim of loss.
6. The order of the CIT (A) and AO are bad in law and against the facts of the case.”
3. In this case, an order under section 154 of the Income-tax Act, 1961 (for short ‘the Act’) was passed by the AO which reads as under:-
“ The assessee has filed rectification application u/s 154 for the A.Y. 2011-12 on dated 12.02.2016, 21,04.2016 and 11.07.2016 submitting following points respectively :-
1. That the assessee filed his original return of income on 10.01.2012 declaring total income of Rs.40,22,587/-. In the said return due to clerical/typographical error, the assessee could not claim loss from house property.
2. Later on the assessee revised the return of income on 18.06.2012 declaring total income at Rs.36,87,455/- claiming loss from house property to the tune of Rs.4,85,132/- which resulted in refund of Rs.92,767. On receipts of rectification applications, the record and details was duly perused & found that in the original return, which was filed after the due date of filing ITR i.e. on 10.01.2012, the assessee has not claimed loss from house property. Since the original returns was filed after the due date so the same cannot be revised. Hence, the loss from house property claimed in revised return is not tenable.”
4. Against the above order, assessee filed appeal before the ld. CIT (A). Ld. CIT (A) also rejected the assessee’s appeal on the ground that this revised claim should have been made by a proper return of income. Since it has not been done, he sustained the order of AO.
5. Upon careful consideration, we note that the only issue in this case is that assessee has inadvertently claimed lesser interest on house property loan. Assessee tried to rectify the mistake when he discovered the same by filing revised return but the same was not entertained by the authorities below and held that such claim cannot be revised u/s 154 of the Act as it was not made in the timely return of income filed. We note that Hon’ble Supreme Court in case of Goetze (India) ltd. vs. CIT 157 taxmann.com 1 (SC) has held that their order in that case would not impinge upon the powers of the ITAT to admit the claim otherwise than by revised return. Hence, in the interest of substantial justice, this claim is admitted and we remit the issue to the file of AO to consider the revised return and pass an order in accordance with law.
6. In the result, this appeal filed by the assessee stands allowed for statistical purposes.
Order pronounced in the open court on this 12th day of April, 2023.
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