M/s. Rabindra & Co. , Kolkata V. ITO, Ward - 44(2), Kolkata , Kolkata

ITA 1624/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8821 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 30-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MADHU MALATI GHOSH
• Section: 143(3); 133(6); 154

Judgement Text

1 ITA NO. 1624/KOL/2018 M/S. RABINDRA & CO., AY 2007-08 , A(SMC) , IN THE INCOME TAX APPELLATE TRIBUNAL A (SMC) BENCH: KOLKATA ( ) BEFORE . . , ) [BEFORE SHRI A. T. VARKEY, JM] I.T.A. NO. 1624/KOL/2018 ASSESSMENT YEAR: 2007-08 M/S. RABINDRA & CO. (PAN: AAGFR7111P) VS. INCOME-TAX OFFICER, WD-44(2), KOLKATA APPELLANT RESPONDENT DATE OF HEARING 20.12.2018 DATE OF PRONOUNCEMENT 28.12.2018 FOR THE APPELLANT SHRI SOUMITRA CHOUDHURY, ADVOCATE FOR THE RESPONDENT SMT. MADHUMALATI GHOSH, ADDL. C IT ORDER THIS APPEAL PREFERRED BY THE ASSESSEE IS AGAINST TH E ORDER OF THE LD. CIT(A)-13, KOLKATA DATED 03.04.2018 FOR AY 2007-08. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS AGAINST TH E ACTION OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS.2,54,443/- AS CESSATI ON OF LIABILITY BY RECTIFYING THE ORDER BY PASSING SECTION 154 ORDER THEREBY THE ORIGINAL ASSE SSMENT ORDER PASSED U/S. 143(3) OF THE ACT WAS RECTIFIED. 3. BRIEF FACTS OF THE CASE ARE THAT THE AO HAD PASS ED THE ORIGINAL ASSESSMENT ORDER U/S. 143(3) OF THE ACT ON 30.12.2009 WHEREIN THE AO DID NOT HAD ANY ISSUE WITH REGARD TO THE SUNDRY CREDITORS. HOWEVER, THE ORDER PASSED WHICH IS IMPUGNED IS PASSED UNDER SECTION 154 OF THE ACT DATED 30.12.2011 WHEREIN THE AO ADDED AN AMOUNT OF RS.2,54,443/- TAKING NOTE OF THE DIFFERENCE BETWEEN THE CLOSING BALANCE OF SU NDRY CREDITORS AS ON 31.03.2006 AND OPENING BALANCE AS ON 01.04.2006. WE NOTE THAT IN THE ORIGINAL ASSESSMENT PASSED ON 30.12.2009 U/S. 143(3) OF THE ACT, THE AO HAS NOTED THAT THE ASSESSEE FIRM IS ENGAGED IN MILLING OF MOONG DAL AND HAD FILED REQUIRED DOCUMEN TS AND EVIDENCE AND HAD PRODUCED 2 ITA NO. 1624/KOL/2018 M/S. RABINDRA & CO., AY 2007-08 BOOKS OF ACCOUNT, BILLS AND VOUCHERS WHICH THE AO H AS EXAMINED. THE AO ALSO ACKNOWLEDGES THAT HE HAS RECEIVED CONFIRMATION FROM PARTIES PURSUANT TO NOTICE SENT U/S. 133(6) OF THE ACT AND WHICH HAS BEEN EXAMINED BY HI M. AFTER THAT HE HAS FRAMED ASSESSMENT U/S 143(3) BY MAKING CERTAIN AD HOC DISA LLOWANCE IN RESPECT OF GENERAL CHARGES, GODOWN REPAIRS AND MACHINE REPAIR AND MADE AN ADDIT ION OF RS.7462/-. THEREAFTER, BY THE IMPUGNED ORDER [AFTER TWO YEARS] ON 30.12.2011, THE AO HAS EXERCISED HIS RECTIFICATION POWERS U/S. 154 OF THE ACT TO MAKE THE ADDITION TAK ING NOTE OF THE DIFFERENCE IN THE CLOSING BALANCE SHOWN OF SUNDRY CREDITORS AS ON 31.03.2006 AT RS.13,93,383/- AND THE OPENING BALANCE OF TOTAL OF SUNDRY CREDITORS AS ON 01.04.20 06 AT RS.11,38,940/-. AND, THE DIFFERENCE OF RS.2,54,443/- WAS ADDED AS CESSATION OF LIABILI TY. WE NOTE THAT SECTION 154 OF THE ACT EMPOWERS THE AO TO RECTIFY ANY MISTAKE APPARENT FRO M THE FACE OF THE RECORD. THE ORIGINAL ASSESSMENT PASSED U/S. 143(3) OF THE ACT WAS ON 30. 12.2009, AND THAT THE AO HAS NOT MADE ANY ADDITION IN RESPECT TO SUNDRY CREDITORS. AFTER TWO YEARS AFTER FRAMING ASSESSMENT U/S. 143(3) OF THE ACT, THE AO HAS VENTURED TO MAKE THE DISALLOWANCE U/S. 41(1) OF THE ACT TAKING NOTE OF DIFFERENCE IN THE SUNDRY CREDITORS S HOWN AS ON 31.03.2006 AND 01.04.2006 WHICH ACCORDING TO US IS NOT A MISTAKE APPARENT FRO M THE RECORD AND THUS THE AO HAS NO JURISDICTION TO MAKE THE IMPUGNED ADDITION U/S. 154 OF THE ACT SINCE IT IS NOT A CLERICAL OR TYPOGRAPHICAL OR ARITHMETICAL ERROR STEMMING FROM T HE SCRUTINY ASSESSMENT FRAMED U/S 143(3) OF THE ACT AS 30.12.2009. THEREFORE, THE IM PUGNED ORDER PASSED BY THE AO U/S. 154 IS WITHOUT JURISDICTION AS NOTED ABOVE IS NULL IN T HE EYES OF LAW. FURTHER, WE OBSERVE AFTER GOING THROUGH THE MERIT OF ADDITION, WE FIND THAT A SSESSEES BOOKS OF ACCOUNT ARE AUDITED AND ON PERUSAL OF PAGES 4 AND 5 OF THE PAPER BOOK W E NOTE THAT THE ASSESSEES SUNDRY CREDITORS AS ON 01.04.2006 IS RS.13,93,382/- AND N OT RS.11,38,940/- AS ERRONEOUSLY TAKEN NOTE BY AO. WE ALSO NOTE THAT THE ASSESSEE HAD MADE PAYMENT TO VARIOUS SUNDRY CREDITORS IN THIS ASSESSMENT YEAR. THEREFORE, THERE IS NO MERIT ALSO IN THE ADDITION SO LOOKING FROM ANY ANGLE THE ADDITION WAS NOT WARRANTED. ASSESSEES GR OUND OF APPEAL IS ALLOWED. 3 ITA NO. 1624/KOL/2018 M/S. RABINDRA & CO., AY 2007-08 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 28TH DECE MBER, 2018. SD/- (A. T. VARKEY) JUDICIAL MEMBER DATED: 28TH DECEMBER, 2018 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 APPELLANT M/S. RABINDRA & CO., 17, KRITTIBASH MUK HERJEE ROAD, ULTADANGA, KOLKATA- 700 067. 2 RESPONDENT ITO, WARD-44(2), KOLKATA. 3 4 5 CIT(A)-13, KOLKATA. (SENT THROUGH E-MAIL) CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR