G.Muralidhar (HUF), Bangalore V. ACIT, CHENNAI

ITA 1128/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 8064 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-01-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 21-01-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 12-05-2015
• Court: TRIBUNAL
• Department Lawyers: A B KOLI
• Assessee Lawyers: T BANUSEKAR
• Keywords: Reopening of assessment; Rectification of order
• Section: 143(3); 148; 154

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL B BENCH, CHENNAI , . , BEFORE SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ./ I.T.A.NO. 1128 /MDS/2015 / ASSESSMENT YEAR :200 2 - 03 G. MURALIDHAR (HUF) , 512, 10 TH B MAIN ROAD, I BLOCK, JAYA NAGAR, BANGALORE 560 011 . [PAN: A A CHG9948K ] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX , CIRCLE X II I , CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI T . BANUSEKAR, C.A. / RESPONDENT BY : SHRI A. B . KOLI , J CIT / DATE OF HEARING : 21 . 0 1 .201 6 / DATE OF P RONOUNCEMENT : 29 . 0 1 .201 6 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 7, CHENNAI DATED 22 .0 1 .2 015 FOR THE ASSESSMENT YEAR 200 2 - 03 . THE ONLY ISSUE RAISED IN THE APPEAL OF THE ASSESSEE IS WITH REGARD TO CONFIRMATION OF ORDER PASSED UNDER SECTION 154 OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. I.T.A. NO . 1128 /M/ 15 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS FILED THE PRESENT APPEAL IN THE STATUS OF HUF WITH PAN AACHG9948K FOR THE ASSESSMENT YEAR 2002 - 03 AGAINST CONFIRMATION OF THE ORDER PASSED UNDER SECTION 154 OF THE ACT TO QUASH THE ASSESSMENT COMPLETED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT DATED 31.12 .2007. ACTUALLY, THIS IS SECOND ROUND OF LITIGATION BEFORE THE TRIBUNAL. 3. IN THE FIRST ROUND OF LITIGATION, THE ASSESSEE HAS FILED APPEAL WITH PAN AFKPM6731M IN THE STATUS OF INDIVIDUAL AGAINST THE ORDER OF THE LD. CIT(A) XII, CHENNAI DATED 11.06.2008 , WHILE CHALLENGING THE REOPENING OF ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT ON 31.12.2007, BESIDES CHALLENGING THE ORDER PASSED UNDER SECTION 154 OF THE ACT WITH REGARD TO THE STATUS OF THE ASSESSEE. THE APPEAL PREFERRED BEFORE THE LD . CIT(A) IS IN THE STATUS OF INDIVIDUAL WITH PAN AFKPM6731M AGAINST THE ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT ON 31.12.2007, WHEREIN, IN THE ASSESSMENT ORDER, THE ASSESSMENT OF HUF WAS COMPLETED. HOWEVER, IN THE ASSESSMENT ORDER IN THE CO LUMN OF STATUS , INDIVIDUAL WAS MENTIONED WRONGLY FOR WHICH THE ASSESSING OFFICER PASSED THE RECTIFICATION ORDER UNDER SECTION 154 OF THE ACT. IT IS NOT THE CASE OF CHANGING THE STATUS OF THE ASSESSEE AND PASSED THE ASSESSMENT, BUT DUE TO TYPOGRAPHICAL ERROR, THE MISTAKE APPARENT ON RECORD WAS RECTIFIED. I.T.A. NO . 1128 /M/ 15 3 4. THE ACTUAL FACT IS THAT THE ASSESSEE HAS FILED RETURN OF INCOME IN THE STATUS OF INDIVIDUAL WITH PAN AFKPM6731M FOR THE ASSESSMENT YEAR 2002 - 03 BY DECLARING TOTAL INCOME OF THE ASSESSEE AT .4,96, 375/ - . FOR THE SAME ASSESSMENT YEAR 2002 - 03, THE ASSESSEE IN THE STATUS OF HUF FILED RETURN OF INCOME DECLARING TOTAL INCOME AT .37,60,007/ - , WHICH COMPRISED OF .1,40,463/ - REPRESENTING INCOME SHOWN UNDER THE HEAD OTHER SOURCES AND LONG TERM CAPITAL GA INS OF .36,31,216/ - WITHOUT GIVING PAN, AS IT WAS JUST APPLIED FOR AND THE PAN WAS NOT YET ALLOTTED AS ON THE DATE OF FILING THE RETURN. WHILE SCRUTINIZING THE RETURN OF INCOME OF THE HUF STATUS AND, WHILE ISSUING THE NOTICE UNDER SECTION 148 OF THE ACT, SINCE THE COLUMN STATUS WAS KEPT BLANK, BY OVERSIGHT, THE PAN OF INDIVIDUAL AFKPM6731M WAS PUT AND NOTICE WAS SERVED ON THE ASSESSEE AND ASSESSMENT UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WAS COMPLETED. THE ACTUAL ASSESSMENT COMPLETED UNDER SECTION 143(3) R.W.S. 147 OF THE ACT WITH REGARD TO THE TOTAL INCOME ADMITTED BY THE ASSESSEE IS OF .37,60,007/ - . WHEN THE NOTICE WAS ISSUED UNDER SECTION 148 OF THE ACT WITH REGARD TO THE CAPITAL GAIN ISSUE, IF THE ASSESSEE NOTICED THE PAN OF INDIVIDUAL STATUS AND BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER, THE TYPOGRAPHICAL MISTAKE COMMITTED IN THE ORDER OF THE ASSESSMENT WOULD HAVE RECTIFIED WITHOUT PASSING ANY RECTIFICATION ORDER UNDER SECTION 154 OF THE ACT. THE APPEAL FILED BEFORE THE LD. CIT(A) ON 21.02.2008 WAS IN THE STATUS OF INDIVIDUAL WITH PAN AFKPM6731M FOR RETURN OF INCOME DECLARING T OTAL INCOME AT .37,60,007/ - , WHICH COMPRISED OF I.T.A. NO . 1128 /M/ 15 4 .1,40,463/ - REPRESENTING INCOME SHOWN UNDER THE HEAD OTHER SOURCES AND LONG TERM CAPITAL GAINS OF .36,31,216/ - AND NOT FOR THE RETURNED INCOME OF THE ASSESSEE INDIVIDUAL OF .4,96,375/ - . THAT MEANS, THE ASSESSEE FILE D A WRONG APPEAL AGAINST THE ORDER OF THE ASSESSMENT PASSED UNDER SECTION 143(3) R.W.S. 147 IN THE STATUS OF INDIVIDUAL . WHILE DECIDING THE APPEAL VIDE ORDER DATED 11.0 6.2008, THE LD. CIT(A) HAS POINTED OUT IN PARA 3.2 THAT 3.2 AT THE OUTSET, IT HAS T O BE POINTED OUT THAT THERE SEEMS TO BE SOME CONFUSION REGARDING THE STATUS OF THE APPELLANT. THE APPELLANT HAD SHOWN INCOME BY WAY OF LONG - TERM CAPITAL GAINS ONLY IN THE RETURN FILED BY HIM IN THE STATUS OF HUF. WHEREAS THE ASSESSING OFFICER HAD ISSUED A NOTICE U/S 148 IN THE NAME OF THE INDIVIDUAL. AND WHILE FINALISING THE ASSESSMENT PROCEEDINGS, HE HAD NOT HOWEVER TAKEN COGNISANCE OF THE RETURN FILED BY THE APPELLANT IN THE STATUS OF THE INDIVIDUAL IN WHICH A TOTAL INCOME OF THE RS.4,96,375/ - HAD BEEN SH OWN. HE HAD PROCEEDED TO COMPUTE THE TAXABLE INCOME ON THE BASIS OF THE RETURN FILED IN THE STATUS OF HUF ONLY. THERE IS NO REASON ATTRIBUTED ANYWHERE IN THE IMPUGNED ORDER FOR DOING SO. HOWEVER, IT HAS TO BE NOTED THAT THE ASSESSEE HAS NOT RAISED THE ISSUE OF STATUS BEFORE THE LD. CIT(A). 5. AGAINST THE ORDER OF THE LD. CIT(A) DATED 11 .06.2008, THE ASSESSEE PREFERRED FURTHER APPEAL BEFORE THE TRIBUNAL IN I.T.A. NO. 1987/MDS/2008 AND THE REVENUE IN I.T.A. NO. 1955/MDS/2008. AT THAT TIME OF HEARING OF THESE APPEALS ON EARLIER OCCASION , IT WAS POINTED OUT BY THE LD. AR OF THE ASSESSEE ABOUT THE WRONG MENTION OF THE STATUS AND CHALLENGED THE ORDER PASSED UNDER SECTION 154 OF THE ACT. WHILE DECIDING THESE APPEALS, VIDE ITS ORDER DATED 09.09.2011, THE TRIBUNAL HAS OBSERVED AS UNDER: 12. WE HAVE HEARD BOTH THE SIDES, ON THIS POINT AND FIND THAT AS PER ORDER OF THE ASSESSING OFFICER PASSED UNDER SECTION 154 ON 26.07.2010, THE STATUS OF THE ASSESSEE HAS BEEN CONVERTED TO HUF IN PLACE OF I NDIVIDUAL, BUT THIS ISSUE I.T.A. NO . 1128 /M/ 15 5 WAS NOT RAISED BEFORE THE LD. CIT(A) AND IN VIEW OF THE SUBSEQUENT ORDER PASSED BY THE ASSESSING OFFICER, IN OUR CONSIDERED VIEW, THE MATTER SHOULD GO BACK TO THE ASSESSING OFFICER FOR RECONSIDERATION OF THE STATUS. AS SUCH, THE O RDERS OF AUTHORITIES BELOW IN THIS REGARD IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION AFRESH THIS ISSUE AFTER GIVING DUE OPPORTUNITY TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. 6. AGAINST THE ABOVE ORDE R OF THE TRIBUNAL DATED 09.09.2011, THE ASSESSING OFFICER IS YET TO PASS ORDER AFRESH. IN THE MEANWHILE, THE ASSESSEE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL BY CHALLENGING THE ORDER PASSED UNDER SECTION 154 OF THE ACT DATED 26.07.2010 . WITH R EGARD TO THE SAME ISSUE, THE TRIBUNAL HAS ALREADY PASSED ORDER DATED 09.09.2011 IN I.T.A. NO. 1955/MDS/2008 & I.T.A. NO. 1987/MDS/2008 , FURTHER ADJUDICATION BY THE TRIBUNAL ON THE SAME ISSUE DOES NOT ARISE AND ACCORDINGLY, THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE UNDER THE LAW. IN VIEW OF THE ABOVE FACTS, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED AS NOT MAINTAINABLE. 7 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED ON THE 29 TH JANUARY , 201 6 AT CHENNAI. SD/ - SD/ - ( CHANDRA POOJARI ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 29 . 0 1 .201 6 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.