M/s A.K Electricals and Electronics, Kolkata V. I.T.O Wd - 34(2),kolkata, Kolkata

ITA 1778/KOL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100165 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 06-06-2013
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH: K OLKATA [BEFORE SHRI MAHAVIR SINGH, JM] I.T.A NO.1778/KOL/2013 ASSESSMENT YEAR: 2007-08 A.K. ELECTRICALS & ELECTRONICS VS. INCOME-TAX OFF ICER, WD-34(2), KOLKATA (PAN: AAGFA3218C) ( APPELLANT ) ( RESPONDENT ) DATE OF HEARING: 10.12.2015 DATE OF PRONOUNCEMENT: 16.12.2015 FOR THE APPELLANT: SHRI GAURAV MATHUR, ADVOCATE FOR THE RESPONDENT: SHRI TANUJ NIYOGI, JCIT, SR. DR ORDER THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XX, KOLKATA VIDE APPEAL NO. 180/CIT(A)-XX/WD-34(2)/09-10/KOL DATED 0 1.03.2013. ASSESSMENT WAS FRAMED BY ITO, WARD-34(2), KOLKATA U/S. 143(3) OF T HE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSME NT YEAR 2007-08 VIDE HIS ORDER DATED 17.11.2009. 2. THE FIRST ISSUE IN THIS APPEAL OF ASSESSEE IS AG AINST THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN NOT RECTIFYING THE MISTAKE IN T AKING THE WRONG INCOME DECLARED, WHILE FILING E-RETURN OF INCOME DESPITE THE FACT TH AT REVISED COMPUTATION WAS GIVEN DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 3. I HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. BRIEF FACTS ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ELECTRONICALLY IN ITR-V FOR THE RELEVANT AY 2007-08 (THIS WAS THE FIRST YEA R OF FILING OF RETURN THROUGH E-RETURN). IN THIS RETURN OF INCOME THE ASSESSEE DISCLOSED INC OME TO THE TUNE OF RS.6,32,970/-, WHICH WAS PROCESSED U/S. 143(1) OF THE ACT. THE AS SESSEE AGAINST THIS INTIMATION U/S. 154 OF THE ACT MOVED A RECTIFICATION APPLICATION ST ATING THAT ASSESSEES GROSS TOTAL INCOME IS AT RS.1,38,058/- AND DUE TO WRONG COMPUTA TION THE INCOME IS DECLARED AT RS.6,32,970/-. THE AO REJECTED THIS APPLICATION VI DE ITS ORDER NO. ITO, WD- 34(2)/CALCUTTA/08-09/12 DATED 30.04.2009. IN THE M EANTIME, THE CASE WAS SELECTED FOR SCRUTINY ASSESSMENT BY ISSUING NOTICE U/S. 143(2) O F THE ACT AND ASSESSMENT WAS FRAMED U/S/. 143(3) OF THE ACT BY THE AO VIDE ORDER DATED 17.11.2009 THEREBY TREATING THE INCOME AS PER E-FILING DATED 31.10.2007 AT RS.6,32, 970/- DESPITE THE FACT THAT ASSESSEE BEFORE HIM CONTESTED THAT HIS INCOME IS TO THE TUNE OF RS.1,38,058/-. THE CIT(A) AGREED TO THE MISTAKE APPARENT FROM RECORD BUT STATED THAT THIS SHOULD HAVE BEEN RECTIFIED BY THE ASSESSEE ITSELF BY FILING REVISED RETURN, WHICH IT HAS NOT DONE. ACCORDINGLY, HE HAS NOT ACCEPTED THE PLEA OF THE ASSESSEE. I FIND THAT THE ASSESSEE HAS FILED REVISED COMPUTATION 2 ITA NO.1778/K/2013 A.K. ELECTRICAL & ELECTRONICS AY 2007-08 WHICH IS ENCLOSED WITH THE APPLICATION FILED BEFORE THE AO AND THE SAME REPRODUCED AS UNDER: FRESH COMPUTATION OF INCOME ACCOUNTING YEAR: 2006-07 ASSESSMENT YEAR: 2007-08 NET PROFIT (AS PER AUDITED P/L A/C) 29,004.00 ADD: PROVISION FOR FRINGE BENEFIT TAX 57,974.00 ADD: PROVISION FOR INCOME TAX 49,080.00 136,058.00 TAX THEREON 40,817.00 ADD: SURCHARGES 4,082.00 ADD: EDUCATION CESS 898.00 45,797.00 LESS: TDS 182,702.00 REFUNDABLE 136,905.00 4. LD. COUNSEL FOR THE ASSESSEE BEFORE US STATED TH AT THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. (2006) 284 ITR 323 (SC) PROHIBITS THE AO FROM RECTIFYING THE MISTAKE IN THE RETURN OF INC OME FILED BY THE ASSESSEE BUT APPELLATE AUTHORITIES CAN RECTIFY THE SAME. I FIND FORCE IN THE ARGUMENT OF LD. COUNSEL FOR THE ASSESSEE THAT GOETZ (INDIA) PVT. LTD., SUPR A IS APPLICABLE TO THE AO AND NOT TO THE APPELLATE AUTHORITIES. ACCORDINGLY, I DIRECT THE A O TO TAKE THE CORRECT INCOME DECLARED BY THE ASSESSEE AS GROSS TOTAL INCOME I.E. RS.1,36, 058/- AND RECOMPUTED THE INCOME ACCORDINGLY. 5. THE NEXT ISSUE IN THIS APPEAL OF ASSESSEE IS AGA INST THE ORDER OF CIT(A) IN CONFIRMING THE ACTION OF AO IN DISALLOWING THE EXPE NSES. I FIND FROM THE FACTS OF THE CASE THAT THE AO HAS DISALLOWED THE EXPENSES CLAIME D BY THE ASSESSEE ON ESTIMATE/AD HOC BASIS. EVEN THE CIT(A) HAS CONFIRMED THESE EXP ENSES JUST ON CONJECTURE AND SURMISES AND WITHOUT ANY BASIS. I FIND NO REASON T O SUSTAIN THE SAME AND THE SAME IS HEREBY DELETED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT ON 16.12.2 015 SD/- (MAHAVIR SINGH) JUDICIAL MEMBER DATED : 16TH DECEMBER, 2015 JD.(SR.P.S.) 3 ITA NO.1778/K/2013 A.K. ELECTRICAL & ELECTRONICS AY 2007-08 COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT M/S. A. K. ELECTRICALS & ELECTRONICS, 215, OLD CHINA BAZAR STREET, KOLKATA-700 001 2 RESPONDENT ITO, WARD-34(2), KOLKATA. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .