ACIT, Circle-9, Pune V. Bhiva S. Rane, Pune

ITA 2059/PUN/2012

• Counselvise Citation: 205924514 RSA 2012
• Duration Of Justice: 11 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJIB JAIN
• Keywords: Assessment record
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES A, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NOS. 2058 & 2059/PN/2012 (ASSESSMENT YEARS : 2008-09 & 2009-10) ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE - 9, PUNE . APPELLANT VS. BHIVA S. RANE GAT NO. 52, DEHU ALANDI ROAD, TALAWADE, PUNE 412 114 PAN : AARPR6579A . RESPONDENT DEPARTMENT BY : MR. RAJIB JAIN ASSESSEE BY : MR. M. K. KULKARNI DATE OF HEARING : 19-09-2013 DATE OF PRONOUNCEMENT : 27-09-2013 ORDER PER G. S. PANNU, AM THE CAPTIONED TWO APPEALS HAVE BEEN PREFERRED BY T HE REVENUE WHICH ARE DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- V, PUNE DATED 20.07.2012 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 16.12.2011 PASSED BY THE ASSESSING OFFICER, UNDER S ECTION 143(3) READ WITH SECTION 147 OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT), PERTAINING TO THE ASSESSMENT YEAR 2008-09 & 2009-10 RESPECTIVELY. 2. IN BOTH THE APPEALS, SIMILAR GROUNDS OF APPEAL R AISED BY THE REVENUE READ AS UNDER :- 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN GRANTING RELIEF OF THE ASSESSEE IN RESPECT OF CLAIM WHICH NEITHER ORIGINATED FROM THE RETURN OF INCOME NOR FORM THE ASSESSMENT ORDER OF THE YEAR UNDER CONSIDERATION. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE CIT(A) WAS JUSTIFIED IN ARRIVING AT THE CORRECT NESS OF A CLAIM NOT EMANATING FROM THE ASSESSMENT RECORD OR ASSESSMENT ORDER WITH OUT GRANTING AN OPPORTUNITY TO THE ASSESSING OFFICER. ITA NOS. 2058 & 2059/PN/2012 A.YS. 2008-09 & 2 009-10 3. IN VIEW OF THE SIMILARITY OF FACTS AND THE DISPU TE IN BOTH THE APPEALS, APPEAL IN ITA NO.2058/PN/2012 IN THE CASE OF BHIVA S. RANE FOR ASSESSMENT YEAR 2008-09 IS BEING TAKEN AS A LEAD CASE. 4. IN BRIEF, THE BACKGROUND OF THE DISPUTE CAN BE S UMMARIZED AS FOLLOWS. THE ASSESSEE IS, AN INDIVIDUAL, ENGAGED IN THE BUSI NESS OF ENGINEERING WORKS. IN THE ASSESSMENT FINALIZED UNDER SECTION 143(3) RE AD WITH SECTION 147 OF THE ACT DATED 16.12.2011 THE TOTAL INCOME HAS BEEN DETE RMINED AT RS.1,20,02,498/- AS AGAINST THE TOTAL INCOME AS PER RETURN OF RS.60,54,000/-. AN ADDITION OF RS.59,48,498/- WAS MADE TO THE RETUR NED INCOME ON THE GROUND THAT THE INCOME WRITTEN-BACK DURING THE ASSESSMENT YEAR 2009-10 OF RS.59,48,498/- WAS PERTAINING TO ASSESSMENT YEAR 20 08-09 AND THEREFORE, THE SAME WAS ADDED TO THE RETURNED INCOME OF THE INSTAN T ASSESSMENT YEAR. 5. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A). BEFORE THE CIT(A), ASSESSEE RAISED AN ADDITIONAL GROUND, W HICH WAS NOT RAISED IN THE MEMO OF APPEAL FILED, TO THE EFFECT THAT THE INCOME FOR THE CURRENT ASSESSMENT YEAR SHOULD BE REDUCED BY A SUM OF RS.29,17,895/- R EPRESENTING WRITTEN-BACK AMOUNTS OFFERED BY THE ASSESSEE FOR TAXATION IN THE CURRENT YEAR, WHICH WERE INDEED TAXED BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2006-07. THE AFORESAID PLEA OF THE ASSESSEE HAS BEEN DEALT WITH AND ACCEPTED BY THE CIT(A) BY MAKING THE FOLLOWING DISCUSSION :- 5. ADDITIONAL GROUND : THIS GROUND PERTAINS TO THE REQUEST OF THE APPELLAN T TO REDUCE THE AMOUNT OF RS.29,17,895/- OUT OF THE WRITTEN-BAC K AMOUNTS OFFERED FOR TAXATION IN A.Y. 2008-09 WHICH WAS ADDED BY THE ASSESSING OFFICER IN A.Y. 2006-07. THE LEARNED COUNSEL OF THE APPELLA NT HAD SUBMITTED THAT WHILE THE AMOUNT OF RS.29,17,895/- WAS TAXED I N THE YEAR 2006-07, THE SAME WAS NOT REDUCED FROM THE INCOME OFFERED U/ S. 41(1) OF THE INCOME-TAX ACT IN 2008-09 AS THIS WAS PART OF THE S AME. THE CONTENTION OF THE APPELLANT AFTER VERIFICATION IS F OUND TO BE CORRECT AND ACCORDINGLY THE ASSESSING OFFICER IS DIRECTED TO RE DUCE RS.29,17,895/- TAXED IN A.Y. 2006-07 FROM THE TOTAL INCOME. ACCORD INGLY, THE ADDITIONAL GROUND IS ALLOWED. ITA NOS. 2058 & 2059/PN/2012 A.YS. 2008-09 & 2 009-10 6. AGAINST THE AFORESAID ACTION OF THE CIT(A), REVE NUE IS IN APPEAL BEFORE US ON THE AFORESTATED GROUNDS OF APPEAL. THE SUM AN D SUBSTANCE OF THE PLEA RAISED BY THE REVENUE IS THAT THE INCOME HAS BEEN R EDUCED BY THE CIT(A) TO THE EXTENT OF RS.29,17,895/- ON THE BASIS OF CLAIM WHICH WAS NEITHER MADE IN THE RETURN OF INCOME AND NOR IN THE COURSE OF ASSES SMENT PROCEEDINGS BEFORE THE ASSESSING OFFICER. IT HAS ALSO BEEN ASSERTED TH AT THE CIT(A) DID NOT ALLOW ANY OPPORTUNITY TO THE ASSESSING OFFICER TO EXAMINE THE CORRECTNESS OF THE CLAIM ALSO. 7. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE R ESPONDENT-ASSESSEE SUBMITTED THAT THE CLAIM WAS JUSTIFIABLY CONSIDERED BY THE CIT(A) AS IT WAS CONSEQUENTIAL TO THE ADDITION MADE BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2006-07 AND AS THE SAME AMOUNT WAS OFFERED FOR TAX BY THE ASSESSEE IN THE INSTANT ASSESSMENT YEAR, IT AMOUNTED TO DOUBLE ADDITION. THE LEARNED COUNSEL ALSO POINTED OUT THAT THE CIT(A) HAS AFTER DUE VERIFICATION ALLOWED THE CLAIM OF THE ASSESSEE AND THERE IS NO INFIRMITY IN THE SAME. 8. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS. FROM THE DISCUSSION MADE BY THE CIT(A) IN THE IMPUGNED ORDER IT IS QUITE EVIDENT THAT ASSESSEE RAISED THE AFORESAID PLEA TO REDUCE THE TO TAL INCOME BY AN AMOUNT OF RS.29,17,895/- ON THE GROUND THAT IT WAS DOUBLY TAX ED I.E. ONCE IN THE ASSESSMENT YEAR 2006-07 BY THE ASSESSING OFFICER WH ILE COMPLETING THE ASSESSMENT; AND, SECONDLY IN THE CURRENT ASSESSMENT YEAR OF 2008-09, WHEREIN SUCH INCOME WAS OFFERED BY THE ASSESSEE IN THE RETURN OF INCOME FILED. OSTENSIBLY, TAXING OF SAME INCOME TWICE IS U NTENABLE AND NEEDS TO BE CORRECTED. THEREFORE, THE ACTION OF THE CIT(A) IN-P RINCIPLE CANNOT BE FAULTED. THE PLEA OF THE REVENUE THAT SUCH A CLAIM COULD NOT BE ENTERTAINED BY THE CIT(A) BECAUSE IT WAS NOT ARISING FROM THE ASSESSME NT ORDER OR THE RETURN OF INCOME, CANNOT DISTRACT FROM THE FACT THAT NO INCOM E CAN BE TAXED TWICE. IN OUR CONSIDERED OPINION, THE CIRCUMSTANCES EXPLAINED BY THE CIT(A) FULLY JUSTIFY THE ITA NOS. 2058 & 2059/PN/2012 A.YS. 2008-09 & 2 009-10 ADMISSION OF SUCH CLAIM, AND MOREOVER THE CIT(A) HA S ALLOWED THE CLAIM AFTER VERIFICATION. THERE IS NO MATERIAL LED BY THE REVE NUE TO SHOW THAT SUCH A FINDING OF THE CIT(A) IS INCORRECT OR IS NOT BASED ON ANY MATERIAL. THEREFORE, WE DO NOT FIND ANY JUSTIFIABLE REASONS TO INTERFERE WI TH THE ORDER OF THE CIT(A), WHICH IS HEREBY AFFIRMED. 9. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO.2 058/PN/2012 IN THE CASE OF BHIVA S. RANE FOR ASSESSMENT YEAR 2008-09 I S DISMISSED. 10. NOW, WE MAY TAKE-UP ITA NO.2059/PN/2012 IN RELA TION TO THE ASSESSMENT YEAR 2009-10. IN THIS CASE ALSO THE DISP UTE RAISED BY THE REVENUE STANDS ON SIMILAR FOOTING AS DECIDED BY US FOR ASSE SSMENT YEAR 2008-09 IN THE EARLIER PARAGRAPHS. IN BRIEF, THE FACTS ARE THAT IN THE APPEAL FILED BEFORE THE CIT(A), ASSESSEE RAISED AN ADDITIONAL GROUND TO THE EFFECT THAT THE ASSESSED INCOME FOR THE YEAR UNDER CONSIDERATION BE REDUCED FURTHER BY A SUM OF RS.62,19,510/- ON THE GROUND THAT THE SAID SUM WAS ALREADY TAXED BY THE ASSESSING OFFICER IN ASSESSMENT YEAR 2007-08 BEING CREDIT WRITTEN-BACK OUT OF THE TOTAL CREDIT WRITTEN-BACK IN ASSESSMENT YEAR 20 09-10. THE CIT(A) NOTICED THAT WHILE COMPLETING THE ASSESSMENT FOR THE ASSESS MENT YEAR 2007-08, THE SAID AMOUNT WAS PART OF TOTAL ASSESSED INCOME. THE CIT(A) FOUND THE CONTENTION OF THE ASSESSEE TO BE CORRECT AND HE THE REFORE DIRECTED THE ASSESSING OFFICER TO REDUCE THE AMOUNT OF RS.62,19, 510/- WHICH WAS ASSESSED IN ASSESSMENT YEAR 2007-08, OUT OF THE TOT AL CREDIT WRITTEN-BACK IN THE CURRENT ASSESSMENT YEAR. 11. IN THE ABOVE BACKGROUND, THE PLEA OF THE REVENU E IS ON THE SAME BASIS, AS WE HAVE CONSIDERED IN THE ASSESSMENT YEAR 2008-09 IN THE EARLIER PARAGRAPHS. THEREFORE, FOLLOWING THE PARITY OF REAS ONING TAKEN FOR ASSESSMENT YEAR 2008-09 ON A SIMILAR ISSUE IN THIS YEAR ALSO, WE FIND NO SUBSTANTIVE MERIT IN THE APPEAL OF THE REVENUE. ITA NOS. 2058 & 2059/PN/2012 A.YS. 2008-09 & 2 009-10 12. IN THE RESULT, APPEAL OF THE REVENUE IN ITA NO. 2059/PN/2012 FOR ASSESSMENT YEAR 2009-10 IS ALSO DISMISSED 13. RESULTANTLY, BOTH THE CAPTIONED APPEALS OF THE REVENUE ARE DISMISSED, AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH SEPTEMBER, 2013. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 27 TH SEPTEMBER, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-V, PUNE; 4) THE CIT-V, PUNE; 5) THE DR, A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE