M/s Balaka Cold storage Pvt. Ltd., Hooghly V. ACIT, Circle-1, Kolkata, Kolkata

ITA 190/KOL/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4089 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 20-02-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: M C GOPE
• Keywords: Rectification of order; Revised return
• Section: 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 190 / KOL / 2015 ASSESSMENT YEAR :2008-09 M/S BALAKA COLD STORAGE PVT. LTD., SARADAPALLY, P.O. TARAKESWAR, DIST. HOOGHLY-712 410 [ PAN NO.AABCB 3532 C ] V/S . ACIT, CIRCLE-1 HOOGHLY /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI M.C. GOPE, ADVOCATE /BY RESPONDENT NONE /DATE OF HEARING 09-12-2016 /DATE OF PRONOUNCEMENT 21-12-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS AGAINST THE ORDER O F COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA DATED 27.10.201 4 AND ASSESSMENT FOR THE YEAR 2008-09 U/S 154/143(3) OF THE INCOME TAX A CT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. AT THE OUTSET, LD. AR FOR THE ASSESSEE HAS DRAWN OUR ATTENTION SAYING THAT THE APPEAL IS BARRED BY LIMITATION BY JUST 4 D AYS. THE REASON FOR THE DELAY WAS EXPLAINED ON THE GROUND OF ILLNESS OF ASSESSEE S COUNSEL WHO COULD NOT FILE APPEAL IN DUE TIME. THE ASSESSEE FILED CONDONA TION OF DELAY WITH ORIGINAL ITA NO.190/KOL/2015 A.Y. 2008-09 M/S BALAKA COLD STORAGE PVT. LTD. VS. ACIT CIR- 1 HGY. PAGE 2 MEDICAL CERTIFICATE DUE TO NON-COMPLIANCE ON THE PA RT OF ASSESSEES COUNSEL. WE CONDONE THE DELAY AND TO PROCEED HEARING OF THE APPEAL. 3. IT WAS ALSO NOTICED THAT THE INSTANT CASE HAS BE EN LISTED 20 TIMES SO FAR AND REVENUE HAS MOVED ADJOURNMENT PETITION IN THIS CASE ALMOST 14 TIMES. THE REVENUE AGAIN FILED ADJOURNMENT APPLICATIONS IN 14 CASES OUT OF TOTAL 19 CASES LISTED FOR HEARING TODAY INCLUDING THE PRESEN T CASE. THIS EN BLOCK ADJOURNMENT IS NOT POSSIBLE AND HENCE WE HAVE TAKEN UP FOR HEARING AND DECIDED THE ISSUE BY REJECTING THE ADJOURNMENT PETI TIONS IN THIS CASE. WE HAVE REJECTED THE ADJOURNMENT PETITION AFTER HEARING SHR I M.C. GOPE, LD. AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF THE ASSESSEE. 4. SOLITARY ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER U/S 15 4 OF THE ACT BY HOLDING THAT THERE WAS NO APPARENT MISTAKE ON RECORD. 5. BRIEFLY, THE FACTS ARE THAT ASSESSEE IN THE PRES ENT CASE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN COLD STORAGE BUSINES S. FOR THE YEAR UNDER CONSIDERATION, ASSESSEE HAS FILED ONLINE RETURN DEC LARING A PROFIT OF RS.16,47,663/- WHICH WAS PROCESSED U/S. 143(1) OF T HE ACT AND DEMAND OF RS.3,67,270/- WAS RAISED IN THE SAID INTIMATION. AS SESSEE FILED RECTIFICATION APPLICATION U/S 154 OF THE ACT BY SUBMITTING THAT T HE ACTUAL PROFIT EARNED FOR THE CURRENT YEAR OF RS.4,50,953/- ONLY. BUT WHILE FILIN G IT RETURN BROUGHT FORWARD PROFIT OF RS.13,49,987.99 WAS ALSO ADDED IN CURRENT YEARS INCOME INADVERTENTLY. FURTHER, ASSESSEE SUBMITTED THAT IT WAS THE FIRST ASSESSMENT YEAR WHEN IT WAS MADE MANDATORY FOR CORPORATE ASSES SEES TO FILE RETURN ELECTRONICALLY. AS SUCH, SOME MISTAKE WAS CREPT IN FILING THE RETURN OF ASSESSEE. HOWEVER, AO DISREGARDED THE CLAIM OF ASSE SSEE BY HOLDING THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD. THE A SSESSEE SHOULD HAVE FILED REVISED RETURN OF INCOME TO AMEND THE TOTAL INCOME AS DECLARED BY ASSESSEE. 6. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT WHO UPHELD THE ORDER OF AO BY OBSERVING AS UNDER:- 6.3 FROM THE ABOVE IT CAN BE SEEN THAT THE SCOPE O F THE AO IS LIMITED U/S. 143(1) OF THE IT ACT AND IS RESTRICTED TO THE RETURN OF INCOME FILED. IN THIS CASE THE RETURN WAS PROCESSED AS PER THE RETUR N OF INCOME FILED. AS ITA NO.190/KOL/2015 A.Y. 2008-09 M/S BALAKA COLD STORAGE PVT. LTD. VS. ACIT CIR- 1 HGY. PAGE 3 THERE WAS NO MISTAKE IN PROCESSING OF RETURN, NO RE CTIFICATION COULD HAVE BEEN DONE. IF THERE WAS ANY MISTAKE IN THE ORIGINAL RETURN FILED, THE ASSESSEE OUGHT TO HAVE FILED A REVISED RETURN. TAKI NG ALL THESE FACT INTO CONSIDERATION, APPELLANTS APPEAL FOR CONSIDERATION OF RECTIFICATION PETITION, IS NOT ACCEPTED. BEING AGGRIEVED BY THIS, ASSESSEE HAS COME UP AN AP PEAL BEFORE US. 7. HAVING HEARD THE REITERATED SUBMISSION AS MADE B EFORE THE LD. AUTHORITIES BELOW BY LD. AR FOR THE ASSESSEE AND PE RUSED THE MATERIALS AVAILABLE ON RECORD. HE STATED THAT THE ISSUE MAY B E DECIDED ON MERIT. 8. WE HAVE HEARD THE LEARNED AR AND PERUSED THE MAT ERIALS AVAILABLE ON RECORD. FROM THE FOREGOING DISCUSSION WE FIND THAT THE ASSESSEE WHILE FILING THE INCOME TAX RETURN ONLINE HAS INADVERTENTLY SHOW N TOTAL INCOME FOR RS. 16,47,660.00 WHICH IS INCLUSIVE OF THE INCOME PERTA INING TO THE EARLIER YEARS. AS PER THE ASSESSEE THE ACTUAL AMOUNT OF TOTAL INCO ME PERTAINING TO THE YEAR UNDER CONSIDERATION IS OF RS. 4,50,953.00 BEFORE TA X AND AFTER TAX IT IS RS. 2,97,675/-. ACCORDINGLY THE INCOME TAX RETURN SHOWI NG PROFIT OF RS. 16,47,660/- WAS PROCESSED UNDER SECTION 143(1) OF THE ACT AND T HEREFORE THE DEMAND WAS RAISED ON THE ASSESSEE. SUBSEQUENTLY THE ASSESSEE F ILED RECTIFICATION PETITION U/S 154 OF THE ACT WHICH WAS DENIED BY THE AO BY HO LDING THAT THE ASSESSEE WAS TO FILE OUR REVISED RETURN OF INCOME. THE VIEW OF THE AO WAS ALSO CONFIRMED BY THE LEARNED CIT(A). NOW THE ISSUE BEFO RE US ARISES SO AS TO WHETHER THE MISTAKE AS DISCUSSED ABOVE IS RECTIFIAB LE UNDER SECTION 154 OF THE ACT IN THE AFORESAID FACTS AND CIRCUMSTANCES. AT TH IS JUNCTURE, WE WOULD LIKE TO REPRODUCE THE PROVISIONS OF SECTION 154 OF THE ACT AS UNDER:- RECTIFICATION OF MISTAKE . 154 . [(1) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARE NT FROM THE RECORDS AN INCOME-TAX AUTHORITY REFERRED TO IN SECTION 116 MAY,- (A) AMEND ANY ORDER PASSED BY IT UNDER THE PROVISI ONS OF THIS ACT; [(B) AMEND ANY INTIMATION OR DEEMED INTIMATION UNDE R SUB-SECTION (1) OF SECTION 143;]] [ AMEND ANY INTIMATION UNDER SUB-SECTION (1) OF SE CTION 200A;] [(D) AMEND ANY INTIMATION UNDER SUB-SECTION (1) OF SECTION 206CB.] ITA NO.190/KOL/2015 A.Y. 2008-09 M/S BALAKA COLD STORAGE PVT. LTD. VS. ACIT CIR- 1 HGY. PAGE 4 FROM A PLAIN READING OF SECTION 154 WHICH PROVIDES FOR RECTIFICATION OF MISTAKE APPARENT FROM THE RECORDS, WE FIND THAT AS PER THE SAID SECTION, MISTAKE IS NOT CONFINED TO MERE CLERICAL OR ARITHMETICAL MISTAKE. THE ONLY POINT IS THAT THE MISTAKE MUST BE OBVIOUS AND PATENT AND NOT INVOLVIN G A DEBATABLE POINT. IN THE PRESENT CASE, ON PERUSAL OF THE FACTS AVAILABLE ON RECORD, IT IS FOUND INCOME TAX RETURN WAS FILED ON-LINE BY THE ASSESSEE , SHOWING THE CURRENT YEAR PROFIT FOR RS. 4,50,953/- AS PER SERIAL NUMBER 43 OF THE ON-LINE RETURN FILED WHICH IS PLACED ON RECORD. IN THE SAME RETURN THE B ROUGHT FORWARD PROFIT WAS ALSO SHOWN IN THE SERIAL NUMBER 48 FOR RS.13,49,988 /- WHICH WAS ADDED IN THE CURRENT YEARS INCOME AFTER TAX I.E. RS. 2,97,6 75/- (4,50,953.00 -1,53,278/- ). BUT THE AO WITHOUT APPRECIATING THE FACTS REJEC TED THE APPEAL FILED BY THE ASSESSEE AND SUBSEQUENTLY THE SAME WAS CONFIRMED BY THE LD. CIT(A). ON PERUSAL OF THE AFORESAID DOCUMENTS, WE FIND THAT IT WAS A CLERICAL MISTAKE COMMITTED BY THE ASSESSEE AT THE TIME OF FILING ITS RETURN ON-LINE. THE SAME MISTAKE CAN BE RECTIFIED U/S 154 OF THE ACT. IN THI S CONNECTION, WE RELY IN THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF T.S. BALRAM, ITO VS. VOLKART BROTHERS AND OTHERS REPORTED IN 82 ITR 50 (SC) WHERE IT WAS HELD AS UN DER: A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOU S AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVABLY BE TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THE POWER OF THE OFFICERS MENTIONED IN S. 154 OF THE IT ACT, 1961 TO CORRECT 'ANY MISTAKE APPAREN T FROM THE RECORD' IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN 'ERROR APPARENT ON THE FACE OF THE RECORD.' IN THIS CASE IT IS NOT NECESSARY TO SPELL OUT THE DIST INCTION BETWEEN THE EXPRESSIONS 'ERROR APPARENT ON THE FACE OF THE RECO RD' AND 'MISTAKE APPARENT FROM THE RECORD'. BUT SUFFICE IT TO SAY TH AT THE ITO WAS WHOLLY WRONG IN HOLDING THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD OF THE ASSESSMENTS OF THE FIRST RESPONDENT. IN VIEW OF ABOVE, WE FIND THAT THE MISTAKE IN THE I NSTANT CASE IS APPARENT ON RECORD WHICH CAN BE RECTIFIED U/S 154 OF THE ACT. T HE LOWER AUTHORITIES HAVE NOT BROUGHT ANY DEFECT IN THE RETURN FILED BY THE A SSESSEE BUT KEPT HARPING ITA NO.190/KOL/2015 A.Y. 2008-09 M/S BALAKA COLD STORAGE PVT. LTD. VS. ACIT CIR- 1 HGY. PAGE 5 ISSUE THAT THE ASSESSEE WAS TO FILE REVISED RETURN OF INCOME. IN OUR CONSIDERED VIEW, THE MISTAKE IN THE INSTANT CASE IS APPARENT W HICH CAN BE RECTIFIED U/S 154 OF THE ACT. THEREFORE, WE HAVE NO HESITATION IN REV ERSING THE ORDER OF LOWER AUTHORITIES. HENCE THIS GROUND OF APPEAL OF THE ASS ESSEE IS ALLOWED. 9. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT 21/ 12/2016 SD/- SD/- ( !') ( !') (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 21 / 12 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S BLAKA COLD STORAGE PVT. LTD., SARADA PALLY, P.O. TARAKESWR DIST. HOOGHLY- 712 410 2. /RESPONDENT-ACIT, CIRCLE-1, HOOGHLY 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,