DHIREN POPATLAL NANDU, MUMBAI V. ACIT CIR 23(2), MUMBAI

CO 235/MUM/2012

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 9099 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 6 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 11-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRADEEP KAPASI
• Keywords: Rectification of order; Revised return
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND P.M.JAGTAP (AM) . . , . . , ./I.T.A. NO.7424/MUM/2011 ( / ASSESSMENT YEAR : 2008-09) ASSTT.COMMISIONER OF INCOME TAX, CIRCLE 23(2), C-10, 2 ND FLOOR, ROOM NO.202, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400051. / VS. DHIREN POPATLAL NANDU, B/12, ASHOK BLDG, 541/C, ADENWALLA ROAD, NEAR MAHESHWARI UDYAN, MATUNGA, MUMBAI-400019 ( ' / APPELLANT) .. ( ( ' / RESPONDENT) CROSS OBJECTION/ ( NO.235/MUM/2012 IN ./I.T.A. NO.7424/MUM/2011 ( / ASSESSMENT YEAR : 2008-09) DHIREN POPATLAL NANDU, B/12, ASHOK BLDG, 541/C, ADENWALLA ROAD, NEAR MAHESHWARI UDYAN, MATUNGA, MUMBAI-400019 / VS. ASSTT. COMMISIONER OF INCOME TAX , CIRCLE 23(2), C-10, 2 ND FLOOR, ROOM NO.202, PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400051 ( ' / APPELLANT) .. ( ( ' / RESPONDENT) ./ ./PAN/GIR NO. : AACPN3247Q ' /: REVENUE BY SHRI SANJEEV JAIN ( ' 9 / ASSESSEE BY SHRI PRADEEP KAPASI 9 < / DATE OF HEARING : 11.11.2013 9 < /DATE OF PRONOUNCEMENT : 22.11.2013 / O R D E R PER B.R.MITTAL, JM: THE DEPARTMENT HAS FILED THIS APPEAL FOR ASSESSMENT YEAR 2008-09 AGAINST THE ORDER OF LD. CIT(A) DATED 26.8.2011 ON FOLLOWING GROUNDS : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THERE WAS A MISTAKE APPARENT FROM RECORD IN THE INTIMATION I.T.A. NO.7424/MUM/2011 CROSS OBJECTION NO.235/MUM/2012 2 U/S 143(1) OF THE INCOME TAX ACT, 1961 GENERATED FO R AY 2008-09 AND ERRED IN FURTHER DIRECTING THE AO TO RECTIFY SUCH MISTAKE U NDER SECTION 154 OF THE INCOME TAX, 1961; 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LD. CIT(A) ERRED IN REDUCING THE INCOME WHICH IS NOT APPARENT FROM RECORDS AS PER SECTION 154 OF THE INCOME TAX ACT, 1961 2. THE ASSESSEE HAS ALSO FILED CROSS-OBJECTION TAK ING THE GROUNDS AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, TH E LD. CIT(A) ERRED IN NOT DISPOSING OFF THE GROUND OF APPEAL FOR CONTESTING THE ADDITION OF RS.4,57,72,905/- TO THE RETURNED INCOME ON MERITS O F THE CASE WITHOUT GIVING ANY REASONS; 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN NOT DEALING WITH THE APPEAL OF THE RESPONDENT THEREIN APPEAL NO.102/10-11 FILED BY THE RESPONDENT U/S 246A BY OBSERVING IN PARA 6 OF THE APPELLATE ORDER AS UNDER: IN VIEW OF THIS THE APPEAL BEARING NO.101/10-11 FI LED IN THE CASE NEED NOT BE DEALT WITH ANY FURTHER YOUR RESPONDENT SUBMITS THAT THE SAID APPEAL CONTES TED THE UNAUTHORIZED ADDITIONS MADE BY THE LD AO U/S 143(1)/143(3) 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, YOU R RESPONDENT REQUESTS FOR INVOCATION OF RULE 27 OF THE ITAT RULES, 1962 FOR SUPPORTING THE GROUND OF APPEAL AND THE CONTENTIONS THEREIN RAISED BEFORE TH E LD. CIT(A) TO CONTEST THAT THE ADDITIONS MADE BY THE LD. AO OF RS.4,57,72,90 5/- BE DELETED ON MERITS AND TO FURTHER CONTEST THAT THE TAX ON INCOME BE COMPUT ED CORRECTLY 3. AT THE TIME OF HEARING, LD. AR SUBMITTED THAT C ROSS-OBJECTIONS TAKEN BY ASSESSEE ARE NOT PRESSED FOR. IN VIEW OF ABOVE, CROSS-OBJE CTIONS OF THE ASSESSEE ARE DISMISSED. 4. IN RESPECT OF APPEAL FILED BY DEPARTMENT, THE RE LEVANT FACTS ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 30.9.2008 DECLARING TOTAL INCOME OF RS.10,29,33,615/- WHICH WAS REVISED ON 29.11.2008 DECLARING TOTAL INC OME OF RS.10,24,66,715/- AND CLAIMING REFUND OF RS.1,22,13,487/-. ASSESSING OFF ICER PROCESSED THE RETURN U/S 143(1) OF THE INCOME TAX ACT, 1961 (THE ACT) AND AS PER I NTIMATION U/S 143(1) OF THE ACT, DATED 10.3.2010 (COPY PLACED ON RECORD RAISING DEMA ND OF RS.59,55,550/-). IT APPEARS THAT THE AO IN THE INTIMATION HAS TAKEN THE INCOM E OF RS.14,87,06,520/- AS AGAINST THE RETURNED INCOME DECLARED IN THE REVISED RETURN AT RS.10,24,66,715/-. THE ASSESSEE, BESIDES, FILING APPEAL BEFORE THE LD. CIT(A) ALSO F ILED AN APPLICATION U/S 154 OF THE ACT FOR RECTIFICATION OF THE INTIMATION ON 3.8.2010. HOW EVER, AO VIDE LETTER DATED 30.8.2010 REJECTED THE APPLICATION OF THE ASSESSEE. THE LD. CIT(A) IN PARA 4.3 OF THE IMPUGNED ORDER HAS REPRODUCED THE SAID LETTER OF THE AO RE JECTING THE APPLICATION OF THE ASSESSEE FILED U/S 154 OF THE ACT WHICH READS AS UNDER : I.T.A. NO.7424/MUM/2011 CROSS OBJECTION NO.235/MUM/2012 3 SUB: RECTIFICATION U/S 154 OF THE ACT, 1961 FOR AY 2008-09 REG. PLEASE REFER TO YOUR LETTER DATED 3.8.2010 REQUESTI NG FOR RECTIFICATION U/S 154 OF THE IT ACT, 1961 AND REFUND OF RS.1,22,13,487/- FO R AY 2008-09 2. ON THE POINTS STATED IN YOUR AFORESAID LETTER, R ECTIFICATION U/S 154 OF THE ACT CANNOT BE DONE AS THESE POINTS ARE NOT APPARENT FROM THE RECORDS. 5. THE ASSESSEE ALSO FILED AN APPEAL BEFORE THE LD . CIT(A) AGAINST ABOVE ORDER OF AO REJECTING RECTIFICATION APPLICATION FILED BY ASS ESSEE U/S 154 OF THE ACT. 6. LD. CIT(A) HAS PASSED COMBINED ORDER STATING TH AT SHE HAS COMPARED DETAILS IN PART B-II OF THE ITR-4 OF THE ASSESSMENT YEAR UNDER CONSIDERATION WITH THE INTIMATION GIVEN BY THE AO U/S 143(1) OF THE ACT AND SHE FINDS THAT THE FIGURES ARE REFLECTED DIFFERENTLY. THEREFORE, LD. CIT(A) HAS STATED TH AT THERE IS A MISTAKE APPARENT FROM THE RECORD AND ACCORDINGLY HAS DIRECTED THE AO TO DO NECESSARY RECTIFICATION BY TAKING INCOME RETURNED FIGURES AND ALSO TO TAKE THE INCO ME TO BE ASSESSED AT SPECIAL RATES I.E. CAPITAL GAIN AS RETURNED TO ARRIVE AT INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION (WRONGLY MENTIONED ASSESSMENT Y EAR 2007-08 BY LD. CIT(A) IN THE IMPUGNED ORDER) AND THEN TO COMPUTE THE TAX LIABILI TY ACCORDINGLY. 7. AT THE TIME OF HEARING, LD. DR HAS NOT DISPUTED THE CONTENTS AS STATED BY LD. CIT(A) SAVE AND EXCEPT RELYING ON THE ORDER OF AO. HOWEVER, LD. AR SUBMITTED THAT THERE IS A FACTUAL MISTAKE IN THE INTIMATION GIVEN BY AO U/S 143(1) OF THE ACT AND THE APPLICATION FILED BY ASSESSEE FOR RECTIFICATION OF MISTAKE HAS BEEN REJECTED WITHOUT GIVING ANY REASON. 8. WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO I NFIRMITY IN THE ORDER OF LD. CIT(A) AS THE LD. CIT(A) HAS RIGHTLY DIRECTED THE AO TO TAKE THE CORRECT FIGURES AND TO COMPUTE THE TAX LIABILITY OF THE ASSESSEE ACCORDING LY. THEREFORE, WE UPHOLD THE ORDER OF LD. CIT(A) BY REJECTING THE GROUNDS OF APPEAL T AKEN BY DEPARTMENT. 9. IN THE RESULT, THE APPEAL OF THE REVENUE AND CR OSS-OBJECTION OF THE ASSESSEE BOTH ARE REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 22 ND NOVEMBER, 2013 9 @ A 22 ND NOVEMBER, 2013 9 SD SD/- ( . . / P.M.JAGTAP) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: 22/11/2013 I.T.A. NO.7424/MUM/2011 CROSS OBJECTION NO.235/MUM/2012 4 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. ( ' / THE RESPONDENT. 3. D ( ) / THE CIT(A)- CONCERNED 4. D / CIT CONCERNED 5. E (G , < G , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) < G , /ITAT, MUMBAI