Shri Parshottamdas N.Deladia, Surat V. The Income tax Officer,Ward-3(4), Surat

ITA 1077/AHD/2013

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8415 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 5 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 31-05-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 18-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Assessee Lawyers: M K PATEL
• Keywords: Business income; Revised return
• Section: 143(3)

Judgement Text

ITA NO. 1077/ AHD 2013 ASSESSMENT YEAR : 2009 - 10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD [BEFORE PRAMOD KUMAR, ACCOUNTANT MEMBER ] ITA NO. 1077 / AHD / 2 0 1 3 ASSESSMENT YEAR: 2009 - 10 PURSHOTTAM N. DELADIA ....... ...... ..... APPELLANT PROP. MAYUR ELECTRIC WORKS, U - 71, SADHAYA D ARHSAN, OPP. BHULKABHAVAN SCHOOL, ADAJAN ROAD, SURAT . [ PAN : ABPPD 0177 K ] VS. INCOME - TAX OFFICER WARD - 3(4), SURAT . ............................RESPONDENT APPEARANCES BY: MK PATEL FOR THE APPELLANT DINESH SINGH FOR THE RESPONDENT D ATE OF CONCLUDING THE HEARING : 28.06. 2017 DATE OF PRONOUNCING THE ORDER : 22 .0 9 .2017 O R D E R 1. BY WAY OF THIS APPEAL, THE ASSESSEE APPELLANT HAS CHALLENGED CORRECTNESS OF THE ORDER DATED 11 TH FEBRUARY 2013, PASSED BY THE LEARNED CI T(A) - IV, SURAT, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER ), FOR THE ASSESSMENT YEAR 2009 - 10. 2. GRIEVANCES RAISED BY THE APPELLANT ARE AS FOLLOWS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AS WELL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF THE INCOME - TAX (APPEALS) HAS ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN MAKING ADDITION TO RS.4,08,000/ - ON ACCOUNT OF RENTAL INCOME RECEIVED FROM TORRENT POWER LTD. 2. IT IS THEREFORE PRAYED THAT THE ABOVE ADDITION MAY PLEASE BE DELETED AS LEARN ED MEMBERS OF THE TRIBUNAL MAY D EEM IT PROPER. ITA NO. 1077/ AHD 2013 ASSESSMENT YEAR : 2009 - 10 PAGE 2 OF 3 3. TO ADJUDICATE ON THIS APPEAL IT IS SUFFICIENT TO TAKE NOT OF THE FACT THAT THE APPELLANT HAD CLAIMED TDS ON RENT AL INCOME OF RS.4,08,0 00/ - REC EIVED FROM TORRENT POWER LIMITED. THE ASSESSING OFFICER , HOWEVER, NOTED THAT THIS RENTAL INCOME WAS NOT SHOWN IN THE ORIGINAL OR REVISED RETURN FILED BY THE ASSESSEE. WHEN HE PROBED THE MATTER FURTHER , IT WAS EXPLAINED BY THE ASSESSEE THAT THE EN TIRE AM OUNT RECEIVED OF RS.4,08,000/ - COULD NOT BE TREATED A S ASSESSEE S INCOME IN AS MUCH AS HE HAD INCURRED EXPENDITURE OF SALARY OF G ENERATOR OPERATORS, MAINTENANCE , RENT ETC. WHICH W A S DULY DIS C LOSED IN THE ACCOUNTS. ASSESSING OFFICER, HOWEVER, BUSHE D ASIDE THE PLEA OF THE A SSESSEE AND MADE AN ADDITION OF RS.4,08,000/ - ON ACCOUNT OF RENT RECEIVED FROM TORRENT POWER LIMITED . AGGRIEVED, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEA RNED CIT(A) BUT WITHOUT ANY S UCCESS. THE LEARNED CIT(A) NOTED TH AT THE ASSESSEE HAS SHOWN NET PROFIT FROM BUSINESS AT RS.40,000/ - BUT OBSERVED THAT IT IS NOT CLEAR WHETHER OR NOT THE S A ID AM O UNT OF RS.4,08,000/ - IS INCLUDED IN THE BUSINESS RECEIPTS. THE ASSESSEE IS AGGRIEVED OF THE LEARNED CIT( A ) S CONFIRMING THE IMPU GNED ADDITION AND IS IN FURTHER APPEAL BEFORE ME. 4. I HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. 5. I FIND THAT THERE IS CERTAINLY NO DISPUTE W ITH RESPECT TO RECEIPT OF RS.4,08,000/ - BY THE ASSESSEE FROM TORRENT POWER LIMITED AND THAT THE ASSESSEE MUST HAVE INCURRED THE EXPENSES FOR EARNING THIS INCOME, BUT THEN, IT IS NOT CLEAR WHETHER THE BUSINESS PROFIT OF RS.40,000/ - , WHICH HAS BEEN SHOWN BY THE ASSESSEE IS COMPUTED AFTER TAKING INTO ACCOUNT THIS RECEIPT OF RS.4,08,000/ - . IN CASE THE RECEIPT F RS.4,08,000/ - IS ALREADY INCLUDED IN THE BUSINESS RECEIPTS ON WHICH THE PROFIT OF RS.40,000/ - HAS BEEN WORKED OUT AND OFFERED TO TAX, OBVIOUSLY THERE C ANNOT BE ANY JUSTIFICATION FOR MAKING A SEPARATE ADDITION OF RS.4,08,000/ - . I N THIS VIEW OF THE MATTER , I DEEM IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF ASSESSING O FFICER FOR LIMITED VERIFICATION AS TO WHETHER OR NOT BUSINESS RECEIPT IN RESPECT OF GENERATOR HIRING ON WHICH ASSESSEE HAS OFFERED PROFIT OF RS.40,000/ - TO TAX WAS INCLUDED. IF SO , THERE CANNOT OBVIOUSLY BE ANY BASIS FOR THE IMPUGNED ADDITION. THE ASSESSING OFFICER WILL EXAMINE THE MATTER AFRESH IN THE LIGHT OF ABOVE , AFTER GIVING R EASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE AND IN ACCORDANCE WITH LAW AND BY WAY OF A SPEAKING O RDER . I DIRECT SO. ITA NO. 1077/ AHD 2013 ASSESSMENT YEAR : 2009 - 10 PAGE 3 OF 3 6 . IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON THE 22 ND D AY OF SEPTEMBER , 20 17. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) AHMEDABAD, THE 22 ND DAY OF SEPTEMBER , 2017 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD