Mehta Tubes Ltd., Ahmedabad V. The Dy.CIT, (OSD)-1, Circle-4, Ahmedabad

ITA 234/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8058 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 9 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH
• Assessee Lawyers: P D SHAH
• Section: 143(3); 154; 2

Judgement Text

, *MH *MH*MH *MH* ** * IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD, JUDICIAL MEMBER I.T.A. NO.234/AHD/2015 ( / ASSESSMENT YEAR :2008-09) MEHTA TUBES LIMITED, MEHTA LODHA & CO. 105, SAKAR I, OPP. GANDHIGRAM RAILWAY STATION, ASHRAM ROAD, AHMEDABAD 380 009 VS. DY. CIT(OSD)-1, CIRCLE 4, 1 ST FLOOR, NAVJEEVAN POST OFFICE, OFF ASHRAM ROAD, AHMEDABAD. ! PAN/GIR NO. : AACCM 9337 R ( ' / APPELLANT ) .. ( #' RESPONDENT ) '$ APPELLANT BY : SHRI P. D. SHAH, A.R. #'%$ / RESPONDENT BY : SHRI V. K. SINGH, SR. D.R. & ' (%) * / DATE OF HEARING 13/11/2017 +,-. %) * / DATE OF PRONOUNCEMENT 27/11/2017 / O R D E R PER SHRI MAHAVIR PRASAD, JUDICIAL MEMBER : THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX(APPEALS)-2, AHMEDABAD, D ATED 28/11/2014 FOR THE ASSESSMENT YEAR (AY) 2008-09, ON THE FOLLOWING GROUNDS: I. THAT THE ORDER PASSED BY THE LD. CIT(A) AND AO IS W ITHOUT JURISDICTION AND THEREFORE THE ORDER PASSED BY THE LD.CIT(A) AND AO IS TO BE QUASHED AND DEMAND RAISED SHOULD BE DEL ETED. II. THAT THE LD. CIT(A) HAS ERRED IN LAW AND FACTS BY C ONFIRMING THE DEMAND OF RS.1,56,572/- RAISED BY THE LD. AO BY PAS SING ORDER ITA NO.234/AHD/ 2015 MEHTA TUBES LTD. V DCIT ASST.YEAR 2008-09 - 2 - UNDER SECTION 154 OF THE ACT BY THE LD. AO AND THER EFORE THE LD. AO SHOULD BE DIRECTED TO DELETE THE SAME. 2. THE RELEVANT FACTS AS CULLED OUT FROM THE MATERI ALS ON RECORD ARE AS UNDER:- IN THIS CASE, ASSESSEE COMPANY FILED ITS RETURN O F INCOME FOR ASST. YEAR 2008-09 ON 30.09.2010 DECLARING TOTAL INCOME O F RS.70,98,930/-. THE CASE WAS SELECTED FOR SCRUTINY THROUGH ISSUING NOTICE U/S.143(2) OF THE I.T. ACT. THE ASSESSMENT ORDER 143(3) WAS PASSE D ON 15.11.2010 AND RETURNED INCOME WAS ACCEPTED. 2.2 LATER ON, SCRUTINY OF RECORD REVEALED THAT THE ASSESSEE IN ITS RETURN OF INCOME BOOK PROFIT U/S.115JB IS SHOWN AT RS.2,07 ,96,060/- WHICH EXCEEDS RS.1 CRORE. AS PER THE PROVISION OF INCOME TAX, FROM THE A.Y. 2008-09 ON WARDS 10% SURCHARGE IS IMPOSED TO THOSE ASSESSEE WHOSE TAXABLE INCOME IS ABOVE RS.1 CRORE. IN THE INSTANT CASE WHILE PASSING THE ORDER U/S.143(3) OF THE I.T. ACT 1961 THE DECLARED INCOME OF RS.70,98,930/- WAS ACCEPTED AS ASSESSED INCOME AND TAX CALCULATION IS WORKED OUT AT RS.21,93,569/- ON NORMAL ASSESSED INC OME. SINCE THE TAX CALCULATION ON BOOK PROFIT OF RS.2,07,96,060/- IS C OMES TO RS.23,56,194/- WHICH IS HIGHER THAN THE NORMAL PROVISION OF TAX. A S SUCH THE TAX HAS WORKED OUT ON INCORRECT INCOME. THE ASSESSEE IS LIA BLE TO PAY TAX ON BOOK PROFIT U/S.115JB. 2.3 THE MISTAKE BEING APPARENT ON RECORD, THEREFORE , THE NOTICE U/S.154 OF THE INCOME TAX ACT WAS ISSUED BY THE LD.AO WHERE BY THE ASSESSEE ITA NO.234/AHD/ 2015 MEHTA TUBES LTD. V DCIT ASST.YEAR 2008-09 - 3 - WAS INFORMED ABOUT THE PROPOSED TAX CALCULATION ON BOOK PROFIT AND WAS REQUESTED TO FURNISH SUBMISSION. 2.4 IN RESPONSE TO THE NOTICE ISSUED U/S.154 OF THE I.T. ACT, THE ASSESSEE COMPANY HAS STATED THAT THE DECLARED INCOME UNDER T HE NORMAL TAX PROVISIONS IS NOT MORE THAN RS.1 CRORE AND THEREFOR E, THE ASSESSEE IS NOT LIABLE TO PAY SURCHARGE ON THE TAX DETERMINED, WHIC H IS LESS THAN THE TAX DETERMINED ON MAT. 2.5 THE REPLY OF THE ASSESSEE WAS CONSIDERED CAREFU LLY AND FOUND NOT ACCEPTABLE. 2.6 BOOK PROFIT U/S.115JB WAS MADE OF RS.2,07,96,06 0/-. 3. AGAINST THE SAID ORDER ASSESSEE PREFERRED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO PARTLY ALLOWED THE APPEAL . 4. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMP UGNED ORDER. THE COMPANY FILED RETURN FOR THE YEAR UNDER CONSIDE RATION DECLARING TOTAL INCOME OF RS.70,98,930/-. THE CASE WAS SELECTED FOR SCRUTINY U/S.143(2) OF THE I.T. ACT. THE ASSESSMENT ORDER U/S.143(2) WA S PASSED ON 15.11.2010 AND RETURN OF INCOME WAS ACCEPTED. THERE AFTER, THE LD. AO HAS PASSED AN ORDER U/S.154 STATING THAT ASSESSEE I S LIABLE TO PAY TAX ON BOOK PROFIT U/S.115JB OF THE ACT AND NOT ON ASSESSE D TOTAL INCOME. ASSESSEE ALSO STATED THAT PROCEEDING U/S.147 OF THE ACT WAS INITIATED FOR THE SAID ISSUE AND SAME WAS DROPPED, BEFORE THE ISS UE OF NOTICE U/S.154 OF ITA NO.234/AHD/ 2015 MEHTA TUBES LTD. V DCIT ASST.YEAR 2008-09 - 4 - THE ACT. AS IT HAS BEEN HELD BY THE APEX COURT IN T HE MATTER OF T.S. BALARAM, INCOME TAX OFFICER VS. VOLKART BROTHERS & ORS. 82 ITR 0050: MISTAKE APPARENT FROM THE RECORD IN SECTION 154 MU ST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE E STABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLE BE TWO OPINIONS. THE MISTAKE POINTED OUT IN THE PRESE NT CASE WAS CERTAINLY DEBATABLE AND CAPABLE OF TOW VIEWS BEING TAKEN. THA T TAKEN IT OUTSIDE THE AMBIT OF MISTAKE, EVEN IF ANY, WHICH CAN BE RECTIFI ED UNDER SECTION 154. 5. IN OUR CONSIDERED VIEW, MISTAKE MUST BE APPARENT FROM THE RECORD AND OBVIOUS ONLY THEN AN ORDER CAN BE PASSED U/S.15 4 OF THE INCOME TAX ACT. IN VIEW OF THE ABOVE DISCUSSION, WE ALLOW THE APPEAL OF THE ASSESSEE AND DIRECT THE AO TO DELETE THE DEMAND OF RS.156,57 2/-. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 27/11/2017 SD/- SD/- IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ IZEKSN DQEKJ EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN EGKOHJ IZLKN YKS[KK LN YKS[KK LN YKS[KK LN YKS[KK LNL; L; L; L; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; U;KF;D LNL; (PRAMOD KUMAR) ( MAHAVIR PRASAD ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 27/11/2017 PRITI YADAV, SR.PS ITA NO.234/AHD/ 2015 MEHTA TUBES LTD. V DCIT ASST.YEAR 2008-09 - 5 - !'# $#! COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 012) & 3) / CONCERNED CIT 4. & 3) 45 / THE CIT(A)-2, AHMEDABAD. 5. 67 8)'12 *12. 0 / DR, ITAT, AHMEDABAD 6. 8 9: ( GUARD FILE. % & / BY ORDER, # 6)) //TRUE COPY // '/& () ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD TRUE COPY 1. DATE OF DICTATION 13/11/2017 (DICTATION-PAD 4 PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14/11/2017 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER