The ACIT, Circle-2(2), Baroda V. M/s. New India Enterprise, Baroda

ITA 1660/AHD/2006

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0593 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 year(s) 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-09-2016
• Assessment Year: 2002-2003
• Appeal Filed On: 05-07-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Tax effect; Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER & SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER) ITA. NOS: 1660/AHD/2006 & 2628/AHD/2009 (ASSESSMENT YEAR: 2002-03) THE ASSISTANT COMMISSIONER OF INCOME- TAX, CIRCLE2(2), BARODA M/S. NEW INDIA ENTERPRISE 1, PARVATI NAGAR, UNIT-3, GOLDEN SILVER APARTMENT, BEHIND JALARAM APARTMENT, SUBHANPURA, BARODA V/S V/S M/S. NEW INDIA ENTERPRISE 101,OVERSEAS AVENUE, NATUBHAI CENTRE RACE COURSE, BARODA JCIT(OSD), CENTRAL CIRCLE- 1, BARODA (APPELLANT) (RESPONDENT) PAN: AABFN5979Q APPELLANT BY : SHRI MILIN MEHTA, AR RESPONDENT BY : SHRI SANJAY AGRAWAL , CIT/DR WITH SHRI SANJAY KUMAR, S R. D.R. ( )/ ORDER DATE OF HEARING : 01 -09-201 6 DATE OF PRONOUNCEMENT : 07 -09-2016 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: ITA NOS. 1660/A HD/06 & 2628/AHD/2009 . A.Y. 2002-03 2 1. ITA NOS. 1660/AHD/2006 & ITA NO. 2628/AHD/2009 ARE CROSS APPEALS BY THE REVENUE AND THE ASSESSEE DIRECTED AGAINST TH E VERY SAME ORDER OF THE LD. CIT(A)-IV, AHMEDABAD DATED 20.03.2006 & 29.01.2009 PERTAINING TO A.Y. 2002-03. 2. THE SUBSTANTIVE GRIEVANCE OF THE REVENUE READS AS U NDER:- 1. THE LD.CIT(A)-IV, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS. 9,12,000/- BEING ESTIMATION OF INCOME IN RES PECT OF TRANSPORTATION BUSINESS. 2. THE LD. CIT(A)-IV, AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DELETING ADDITION OF RS. 13,01,385/- BEING THE COMPUTATION OF PROFIT FRO M TRADING OF GOODS. 3. A PERUSAL OF THE AFOREMENTIONED GRIEVANCE OF THE RE VENUE SHOWS THAT THE QUANTUM INVOLVED IS RS. 22,13,385/- WHICH MEANS THAT THE TAX EFFECT IS LESS THAN RS. 10 LACS. THEREFORE, THIS AP PEAL BY THE REVENUE HAS TO BE DISMISSED IN THE LIGHT OF THE CBDT CIRCUL AR NO. 21 OF 2015 DATED 10.12.2015 BY WHICH THE CBDT HAS FIXED THE MO NETARY LIMIT FOR FILING THE APPEAL BEFORE THE APPELLATE TRIBUNAL HAV ING TAX EFFECT OF MORE THAN RS. 10 LACS. IN THE LIGHT OF THE AFOREMEN TIONED CBDT CIRCULAR, THIS APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 2628/AHD/2009 ASSESSEES APPEAL FOR A.Y. 20 02-03 4. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. IN CALCULATING RE VISED INCOME AT RS. 10,21,135/- AS AGAINST RETURNED INCOME OF RS. 45,39 0/- WHILE GIVING EFFECT TO CIT(A)S ORDER. 5. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE A SSESSMENT WAS MADE U/S. 143(3) OF THE ACT VIDE ORDER DATED 31.03.2005 AND THE TOTAL INCOME OF THE ASSESSEE WAS COMPUTED AS UNDER:- ITA NOS. 1660/A HD/06 & 2628/AHD/2009 . A.Y. 2002-03 3 THUS, THE TOTAL INCOME OF THE ASSESSEE IS COMPUTED AS UNDER: AS DISCUSSED IN PARA NO. 4 : RS. 9,12,000/- AS DISCUSSED IN PARA NO. 5 : RS. 13,01,385/- DIVIDEND INCME : RS. 15,000/- ADDITIONAL INCOME OFFERED BY THE ASSESSEE : RS. 10, 06,135/- ON ACCOUNT OF SUPPRESSION IN TRANSPORTATION INCOME IN THE NAME OF M/S. NEW INDIA TPT. CO. TOTAL INCOME : RS. 32,34,520/- 6. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT( A) AND AFTER CONSIDERING THE FACTS AND THE SUBMISSIONS, THE LD. CIT(A) DELETED THE ESTIMATED ADDITION OF RS. 9,12,000/-. THE LD. CIT(A ) FURTHER DELETED THE ADDITION OF RS. 13,01,385/-. ONLY ADDITION OF R S. 15,000/- WAS CONFIRMED. 7. WHILE GIVING EFFECT TO THE APPELLATE ORDER, THE A.O . COMPUTED THE INCOME OF THE ASSESSEE AS UNDER:- ORDER GIVING EFFECT TO THE APPELLATE ORDER OF CIT(A ) IN VIEW OF LD. CIT(A)-IV, AHMEDABADS APPELLATE ORD ER NO. CIT(A)-IV/28- B/CC.1/05-06 DATED 20.03.2006, THE INCOME OF THE AS SESSEE IS REVISED AS UNDER: INCOME AS PER ORDER U/S. 143(3) DTD. 31.03.2005 : RS. 32,34,520/- LESS: RELIEF ALLOWED BY THE CIT(A) (A) ADDITION ON ACCOUNT OF TRANSPORT BUSINESS DELETED : 9,12,000/- (B) ADDITION ON ACCOUNT OF INCOME FROM TRADING OF GOODS DELETED : 13,01,385/- (C) DIVIDEND INCOME OF RS. 15,000/- SINCE DIVIDEND INCOME ON TRANSFER OF CAPITAL ASSETS TAKING PLACE ON OR AFTER 01.04.2002 CAN BE CLAIMED ITA NOS. 1660/A HD/06 & 2628/AHD/2009 . A.Y. 2002-03 4 EXEMPT U/S. 10(33) W.E.F. 2003-04, THE SAME IS NOT APPLICABLE FOR A.Y. 2002-03 : NIL RS. 22,13,385/- REVISED INCOME : RS. 10,21,135/- 8. AGGRIEVED BY THIS REVISED COMPUTATION OF INCOME, TH E ASSESSEE CARRIED THE MATTER BEFORE THE LD. CIT(A) AND STRONGLY CONTE NDED THAT THE A.O. DID NOT ALLOW THE SET OFF OF LOSS OF RS. 9,60,741/- DECLARED IN THE ORIGINAL RETURN. THE LD. CIT(A) WAS OF THE OPINION THAT THE LD. CIT(A)-IV HAD NEVER ADJUDICATED UPON THE LOSS CLAIMED BY THE ASSESSEE ON THE BASIS OF BOOKS OF ACCOUNTS WHICH WERE ADMITTEDLY UN RELIABLE AND CONFIRMED BY THE LD. CIT(A)-IV IN HER ORDER AND ACC ORDINGLY CONFIRMED THE REVISED COMPUTATION OF ASSESSED INCOME MADE BY THE A.O VIDE ORDER GIVING EFFECT TO THE APPELLATE ORDER OF THE L D. CIT(A). 9. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE ASSESSEE HAD RETURNED A LOSS OF RS. 9,60,741/- IN I TS RETURN OF INCOME FILED ON 21.10.2002 WHICH WAS REVISED ON 31.03.2004 BY OFFERING AN ADDITIONAL INCOME OF RS. 10,06,135/-. THUS, THE REV ISED RETURN WAS FOR RS. 45,390/-. IT IS THE SAY OF THE LD. COUNSEL THAT WHILE FRAMING THE ORIGINAL ASSESSMENT ORDER, THE A.O. MADE ADDITIONS OF RS. 9,12,000/-, 13,01,385/-, 15,000 AND ADDITIONAL INCOME OFFERED B Y THE ASSESSEE AT RS. 10,06,135/-. THE FIRST TWO ADDITIONS WERE DELET ED BY THE LD. CIT(A) AND THE LAST ADDITION OF RS. 10,06,135/- WAS PART O F THE REVISED RETURNED INCOME OF RS. 45,390/-. THE LD. COUNSEL CO NTINUED BY STATING THAT BY NOT TAKING THE FIGURE OF THE REVISED INCOME AT RS. 45,390/-, THE A.O. HAS GROSSLY ERRED IN MAKING DOUBLE ADDITION OF RS. 10,06,135/-. IT IS THE SAY OF THE LD. COUNSEL THAT SINCE THE FIRST APPELLATE AUTHORITY HAS CONFIRMED THE ACTION OF THE A.O THEREBY MAKING HIS APPELLATE ORDER ITA NOS. 1660/A HD/06 & 2628/AHD/2009 . A.Y. 2002-03 5 ERRONEOUS. PER CONTRA, THE LD. D.R. COULD NOT REBUT THE FACTS AS MENTIONED HEREINABOVE. 10. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE FAC TUAL MATRIX AS MENTIONED HEREINABOVE. WE FIND FORCE IN THE CONT ENTION OF THE LD. COUNSEL. THE ORIGINAL RETURN WAS FILED AT A LOSS OF RS. 9,60,741/-. THEREAFTER, ADDITIONAL INCOME WAS OFFERED AT RS. 10 ,06,135/- THEREBY MAKING THE REVISED RETURN AT RS. 45,390/-. IN OUR C ONSIDERED OPINION, THE A.O. GROSSLY ERRED IN GIVING EFFECT TO THE APPE LLATE ORDER BY NOT PROCEEDING WITH THIS REVISED RETURN OF INCOME OF RS . 45,390/-. WE, THEREFORE, DIRECT THE A.O. TO RE-COMPUTE THE REVISE D ASSESSED INCOME AFTER GIVING EFFECT TO THE APPELLATE ORDER BY PROCE EDING WITH THE FIGURE OF RS. 45,390/-. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 07 - 09- 201 6. SD/- SD/- (RAJPAL YADAV) (N. K. BILLAIYA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD