ACIT, New Delhi V. M/s. Swadeshi Mercantile (P) Ltd, New Delhi

ITA 1245/DEL/2009

• Counselvise Citation: 124520114 RSA 2009
• Duration Of Justice: 6 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-06-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 02-02-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 01-04-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B R R KUMAR
• Assessee Lawyers: RAKESH GUPTA; TARUN K
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCHES : G , NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI J.SUDHAKAR REDDY, ACCOUNTANT MEMBER I.T.A.NO. 1245 /DEL/20 09 A.Y. 200 4 - 05 A CIT, CIRCLE ROHTAK ROOM NO.212, AAYAKAR BHAWAN NEW DELHI VS. SWADE SHI MERCANTILE P.LTD. , PARKASH NAGAR NEW DELHI PAN: AACCS0359 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. RAKESH GUPTA, ADV. & SH.TARUN K, ADV. DEPARTMENT BY : SH. B RR KUMAR, SR.DR ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE DIRECTED AGAINST THE ORDER OF THE LD.CIT(A) , ROHTAK, NEW DELHI DATED 22.01.2009 PERTAINING TO THE ASSESSMENT YEAR (AY) 200 4 - 05 . 2. FACTS IN BRIEF : - THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD.CIT(A) PASSED U/S 154 OF THE ACT ON 22 .1.2009. THE FACTS IN BRIEF ARE THAT THE ASSESSE E IS A COMPANY ENGAGED IN THE TRADING OF MS PIPES . IT FILED ITS RETURN OF INCOME ON 31.5.2004 DECLARING TOTAL INCOME OF RS.50,098/ - . THE AO PASSED AN ORDER U/S 143(3) ON 19.12.2006 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.70,50,098/ - . THE ASSE SSEE CARRIED THE MATTER IN APPEAL . THE FIRST APPELLATE AUTHORITY PASSED AN ORDER ON 30.11.2007 WHEREIN HE NOT ONLY CONFIRMED THE ADDITIONS MADE BY THE AO, BUT ALSO ENHANCED THE ASSESSMENT BY RS.20 LAKHS. AGGRIEVED THE ASSESSEE HAD FILED AN APPEAL BEFORE THE ITAT. IN THE MEANWHILE THE LD.CIT(A) VIDE HIS ORDER DT. 22.1.2009 PASSED U/S 154 OF THE ACT DELETED NOT ONLY THE ADDITIONS MADE IN THE ASSESSMENT ORDER BUT ALSO ENHANCEMENT ITA NO. 1245/DEL/2009 AY: 2004 - 05 SWADESHI MERCANTILE P LTD., N.DEL 2 MADE BY HIM IN HIS APPELLATE ORDER DT. 30.11.2007 . AGGRIEVED THE REVEN UE FILED THIS APPEAL BEFORE US ON THE FOLLOWING GROUNDS. 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) HAS ERRED IN LAW IN ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE AND THEREBY DELETING THE ADDITION AND ENHANCEMEN T MADE IN THE ORDER DT. 30.11.2007. 2. THAT THE APPELLANT CRAVES FOR THE PERMISSION TO ADD, DELETE OR AMEND THE GROUND OF APPEAL BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. HEARD DR.RAKESH GUPTA ALONG WITH SH. TARUN KUMAR, THE LD.COUNSEL FOR THE ASSESSEE AND SHRI BRR KUMAR, LD.SR.D.R. ON BEHALF OF THE REVENUE. 4. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ON PERUSAL OF MATERIAL ON RECORD, ORDERS OF THE AUTHORITIES BELOW, CASE LAWS CITED, WE HOLD AS FOLLOWS. 5. THE LD.CIT(A), IN OUR VIEW WAS WRONG IN PASSING ORDER U/S 154 OF THE ACT, DELETING THE ENHANCEMENT MADE BY HIM BUT ALSO THE ADDITIONS MADE BY THE AO WHICH WERE IN DISPUTE BEFORE HIM AND CONFIRMED BY HIM IN THE APPELLATE ORDER. IT IS WELL SETTLED THAT ONLY MISTAKES APPARENT ON RECORD CAN BE RECTIFIED IN PROCEEDINGS U/S 154 OF THE ACT. DEBATABLE ISSUES CANNOT BE ADJUDICATED IN PROCEEDINGS U/S 154 OF THE ACT. THUS IN OUR VIEW THE IMPUGNED ORDER PASSED U/S 154 ON 22.11.2009 HAS TO BE QUASHED. 5.1. THE LD.C OUNSEL FOR THE ASSESSEE BROUGHT TO OUR NOTICE THAT THE G BENCH OF THE TRIBUNAL IN ITA 217/DEL/08 FOR THE AY 2004 - 05 IN ITS ORDER DT. 13.4.2009 HAD DISMISSED ASSESSEE S APPEAL IN QUANTUM PROCEEDINGS, FOR THE REASON THAT THE LD.CIT(A) HAS GRANTED RELIEF I N PROCEEDINGS U/S 154 OF THE ACT, WITH THE LIBERTY TO THE ASSESSEE TO MOVE A PETITION FOR REVIVAL OF THE APPEAL, IN CASE THE ORDER PASSED BY THE LD.CIT(A) U/S 154 IS DISTURBED BY THE TRIBUNAL. HE MADE A PRAYER THAT HIS APPEAL IN ITA 217/DEL/08 BE ITA NO. 1245/DEL/2009 AY: 2004 - 05 SWADESHI MERCANTILE P LTD., N.DEL 3 REV IV E D AND RESTORED AS DIRECTED BY THE BENCH IN ITS ORDER DATED 13.4.2009, AS THE TRIBUNAL IS DISTURBING THE ORDER PASSED BY THE LD.CIT(A) U/S 154 OF THE ACT. 5.2. WE HAVE GONE THROUGH THE ORDER OF THE G BENCH OF THIS TRIBUNAL IN ITA 217/DEL/2008 IN THE ASSES SEE S OWN CASE, DT. 13.4.2009. AS WE HAVE QUASHED THE ORDER PASSED BY THE LD.CIT(A) U/S 154, WE REVIVE AND RESTORE THE APPEAL FILED BY THE ASSESSEE IN ITA 217/DEL / 2008 FOR THE AY 2004 - 05. WE DIRECT THE REGISTRY TO POST THE APPEAL IN ITA 217/DEL/ 2008 IN DUE COURSE FOR DISPOSAL ON MERITS. 6. IN THE RESULT THE AP PEAL OF THE REVENUE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH JUNE, 2015. SD/ - SD/ - [ H.S. SIDHU ] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DT. THE 17 TH JUNE, 2015 MANGA ITA NO. 1245/DEL/2009 AY: 2004 - 05 SWADESHI MERCANTILE P LTD., N.DEL 4 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES