Friday, August 23, 2013

AO is supposed to be mentor of assessee; should provide correct advice to assessee if wrong claim is made in return

Where due to ignorance wrong section had been mentioned by assessee in return, AO was required to advise assessee about correct claim and assess tax legitimately
In the instant case the assessee had invested sale consideration from sale of shop in construction of residential house and claimed exemption of capital gains. The AO didn’t consider the claim of the assessee on ground that the assessee had mentioned the wrong sections while claiming the exemption. On appeal, the CIT (A) upheld the order of the AO. Aggrieved assessee filed the instant appeal.

The Tribunal held in favour of assessee as under:

1) Claim of the assessee was fortified by the assessment order itself, wherein it had been mentioned that exemption was claimed by assessee by mentioning a wrong section. Further, the CIT (A) had acknowledged this fact;

2) Even if a wrong section was mentioned by the assessee in the return, it was the duty of the AO to assist the taxpayer in a reasonable way and provide the relief if due to the assessee. This attitude rather would help the revenue in assessing the income correctly;

3) A correct advice by the department would inspire the confidence of public at large. Even identical guidelines or instructions have been issued from time-to-time by the CBDT to its Officers;

4) If due to ignorance a wrong section had been mentioned by the assessee, AO ought to have advised the assessee about the correct claim and assessed the tax legitimately. This was the clear intention of the Legislature;

5) Thus, matter was remanded to the AO to examine the claim of the assessee afresh under provisions of section 54F after providing due opportunity of being heard to the assessee - Paramjeet Singh Chhabra v. ITO [2013] 35 612 (Indore - Trib.)

No penalty on payer for non-quoting of PAN in TDS certificates as it was payee’s duty to intimate his PAN

No penalty on deductor of TDS for non-mention of payee’s PAN in Form 16A if payee didn’t intimate his PAN to deductor

The High Court held as under:

Deductor couldn’t be penalized for non-mentioning of PAN in TDS certificates issued to payee in Form 16A if payee hadn’t furnished his PAN to deductor as required by section 139A(5A). Penalty couldn’t be imposed on assessee under sec. 272B(1) for non-mentioning of PANs of payees in Form 16A issued to them as there was nothing on record to show that contractors (payees) to whom certain sums were paid by assessee after deducting TDS had intimated their PANs to assessee. Default by payees in furnishing their PANs to assessee would be a "sufficient cause" for non-imposition of penalty under section 272B(1) – CIT v. Gail (India) Ltd. [2013] 36 336 (Allahabad)