Custard Apple Inv.Pvt.Ltd., Ahmedabad V. The Income tax Officer,Ward-1(3), Ahmedabad

ITA 2710/AHD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0482 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAYUR K SWADIA SHRI D K SINGH
• Keywords: Business income; Rectification of order

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER APPEAL(S) BY SL.NO(S) ITA NO(S) ASSESSMENT YEAR(S) APPELLANT(S) RESPONDENT (S) 1. 2710/AHD/2012 2007-08 CUSTARD APPLE INVESTMENTS PVT.LTD. CELLAR OPP.THE UNDERBRIDGE SHAHIBAUG AHMEDABAD-380 004 PAN:AAACC 7689J ITO WARD-1(3) AHMEDABAD 2. 2711/AHD/2012 2009-10 ASSESSEE REVENUE 3. 2712/AHD/2012 2010-11 ASSESSEE REVENUE ASSESSEE BY : SHRI MAYUR K.SWADIA REVENUE BY : SHRI D.K. SINGH, SR.D.R. / DATE OF HEARING : 04/03/2013 / DATE OF PRONOUNCEMENT : 8/3/13 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE THREE APPEALS HAVE BEEN FILED BY THE ASSESSE E ARISING FROM THE SEPARATE ORDERS OF LD.CIT(A)-XXI, AHMEDABAD ALL DATED 27.09.2012. FOR THESE YEARS, THE GROUNDS HAVE BEEN CONCISED AND IDENTICAL ISSUE WAS RAISED AS UNDER:- ITA NOS.2710, 2711 & 2712/AHD/2012 CUSTARD APPLE INVESTMENTS PVT.LTD. VS. ITO ASST.YEARS 2007-08,2009-10 & 2010-11 - 2 - 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ), HAS ERRED IN FACTS AND IN LAW IN CONFIRMING THE TOTAL INCOME OF RS.2,23,010/- (FOR A.Y. 2009-10 OF RS.2,60,690 AND FOR A.Y. 2010- 11 OF RS.2,29,660/-) INSTEAD OF RETURNED INCOME OF RS.1,0 7,810/- (FOR A.Y. 2009-10 OF RS.1,06,090/- AND FOR A.Y. 2010-11 OF RS.91,540/-). 2. AT THE OUTSET, WE HAVE BEEN INFORMED THAT AN ASS ESSMENT WAS MADE U/S.143(1) AND AN ADJUSTMENT IN THE RETURNED INCOME WAS MADE. BEING NOT SATISFIED, THE ASSESSEE HAS MOVED AN APPLICATIO N U/S.154 OF THE ACT AND THE CONTENTS OF THE SAID APPLICATION WAS AS UND ER: TO MARCH 13,2009 THE INCOME TAX OFFICER CO.WARD-1(3) JITENDRA CHAMBERS AHMEDABAD DEAR SIR, SUB : APPLICATION FOR RECTIFICATION U/S.154 OF I.T .ACT FOR THE ASST.YEAR:2007-08 REF : INTIMATION ORDER U/S.143(1)OF THE I.T.ACT,196 1 FOR THE ASST.YEAR 2007-08 WE REFER TO THE INTIMATION ORDER U/S.143(1) DT: 30- 1-2009, RECEIVED BY US ON 12-3-2009 FOR THE ASST.YEAR 2007-08 ALONG WITH CHAL LAN FOR I.T.DEMAND OF RS.38,065/-. ON GOING THROUGH THE SAME, WE HAVE NOTICED FOLLOWIN G ERROR IN YOUR ABOVE REFERRED ORDER. THE PARTICULARS ARE GIVEN HEREUNDE R: AS PER INTIMATION ORDER ASSESSED INCOME IS SHOWN RS .2,23,810/- WHILE RETURNED INCOME IS RS.1,07,810/- AS PER INCOME TAX RETURNED FILED BY US ON 23-10-2007. THE COMPUTATION OF INCOME AS SHOWN IN STATEMENT OF TOTAL INCOME (XEROX COPY ATTACHED) IS AS UNDER:- ITA NOS.2710, 2711 & 2712/AHD/2012 CUSTARD APPLE INVESTMENTS PVT.LTD. VS. ITO ASST.YEARS 2007-08,2009-10 & 2010-11 - 3 - INCOME FROM OTHER SOURCES: RS. RS. INTEREST INCOME LESS; EXPENSES CLAIMED 4516 12157 7641 110660 4795 107814 NET LOSS (-) INCOME FROM HOUSE PROPERTY CAPITAL GAIN : SHORT TERM CAPITAL ON REDEMPTION OF UNITS OF MUTUAL FUND TOTAL INCOME I.E. SAY RS. 107810 THE TOTAL INCOME ASSESSED BY YOU RS.2,23,010/- INST EAD OF RS.1,07,810/-. WE THEREFORE, REQUEST YOU TO PASS THE RECTIFICATION ORDER U/S.154 OF THE I.T.ACT, AND CANCEL THE ABOVE DEMAND. THE CHALLAN FOR THE P AYMENT OF TAX OF RS.38,065/- IS ALSO RETURNED HEREWITH. 2.1. THEREUPON, THE AO HAS PASSED THE IMPUGNED ORDE R U/S.154 DATED 22/06/2011, SUBJECT MATTER OF THIS APPEAL; REPRODUC ED BELOW: SIR, SUB : APPLICATION FOR RECTIFICATION U/S.154 OF TH E ACT A.Y. 2007-08 REGARDING REF : YOUR LETTER DATED 13.06.2011 FURNISHED ON 14 .06.2011 PLEASE REFER TO YOUR APPLICATION DATED 13.06.2011 V IDE WHICH YOU HAVE CLAIMED THAT WHILE PROCESSING THE RETURN OF INCOME U/S.143( 1) TOTAL INCOME WAS INCORRECTLY TAKEN AT RS.2,23,010/- INSTEAD OF RS.1, 07,810/- AS SHOWN IN THE RETURN OF INCOME-E-FILED BY YOU. 2. ON PERUSAL OF THE RETURN OF INCOME AND INCOME FR OM BUSINESS & PROFESSION IT IS SEEN THAT YOU HAVE SHOWN THE RETUR NED INCOME AT RS.2,23,010/- ITA NOS.2710, 2711 & 2712/AHD/2012 CUSTARD APPLE INVESTMENTS PVT.LTD. VS. ITO ASST.YEARS 2007-08,2009-10 & 2010-11 - 4 - (INCLUDING INCOME FROM BUSINESS & PROFESSION OF RS. 1,19,989/-). AS SUCH THERE APPEARS TO NO MISTAKE APPARENT FROM THE RECORDS. Y OUR APPLICATION DATED 13.06.2011 IS THEREFORE FILED. SD/- INCOME-TAX OFFICER WARD-1(3), AHMEDABAD 3. BEING AGGRIEVED, THE ASSESSEE HAS FILED AN APPEA L BEFORE THE CIT(A) WHO HAS DISMISSED THE SAME IN THE FOLLOWING MANNER: 4.3. I HAVE PERUSED THE SUBMISSION MADE AND THE CO PY OF E-RETURN FILED BY THE APPELLANT. IN THE E-RETURN FILED AT S R.NO.47, PROFIT AFTER TAX AMOUNTING TO RS.1,19,989/- IS MENTIONED. CONSIDERING THE FACT THAT SUCH AMOUNT IS WELL EVIDENCED FROM TH E E-RETURN FILED BY THE APPELLANT, THE CLAIM OF APPELLANT IS NOT FAC TUALLY CORRECT. TO ADD, THIS IS NOT A MISTAKE APPARENT FROM THE RECORD , RECORD HEREIN BEING THE E-RETURN FILED BY THE APPELLANT. THE AO WAS THUS RIGHT IN REJECTING THE CLAIM OF THE APPELLANT IN HI S ORDER U/S.154 OF THE ACT. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE CONSIDERED OPINION THAT BECAUSE OF THE DEVELOPMENT OF NEW TECHNOLOGIES AND CORRESPONDING ADOPTION OF COMPUTER-TECHNOLOGY B Y THE INCOME TAX DEPARTMENT, THESE TEETHING TROUBLES ARE GENERALLY B EING FACED BY THE TAX- PAYERS. IN THE PRESENT CASE, WE HAVE BEEN INFORMED THAT THE E-RETURN WAS FILED BY THE ASSESSEE, WHEREIN IT WAS INFORMED THAT THERE WAS NO BUSINESS INCOME. HOWEVER, DUE TO SOME MISUNDERSTANDING, THE IMPUGNED AMOUNT IN ALL THE THREE YEARS WAS CONSIDERED AS BUSINESS I NCOME AND ADDED IN THE TOTAL INCOME OF THE ASSESSEE. ITA NOS.2710, 2711 & 2712/AHD/2012 CUSTARD APPLE INVESTMENTS PVT.LTD. VS. ITO ASST.YEARS 2007-08,2009-10 & 2010-11 - 5 - 5. FROM THE SIDE OF THE ASSESSEE, LD.AR MR.MAYUR K. SWADIA HAS DRAWN OUR ATTENTION ON THE PROFIT & LOSS ACCOUNT OF THE ASSESSEE AND AS PER THE LEAD AY 2007-08 THE ACCOUNTS WERE CLOSED ON 31.3.2007. IN THE SAID PROFIT & LOSS ACCOUNT, THE ASSESSEE HAD DISCLO SED LICENCE FEES OF RS.1,62,000/-, INTEREST RECEIVED RS.4,516/-, EXCESS PROVISION OF INCOME- TAX OF RS.7,857/- AND PROFIT ON REDEMPTION OF MUTUA L FUND OF RS.4,9785/-, THUS TOTALLING TO RS.1,79,168/-. AFTER CLAIMING CE RTAIN EXPENSES, SUCH AS, OFFICE EXPENSES, AUDIT FEES, BANK CHARGES, ETC. THE ASSESSEE HAD COMPUTED NET PROFIT AT RS.1,19,989/-. THE LD.AR HAS CONTEST ED THAT THIS NET PROFIT WAS NOT AT ALL THE BUSINESS INCOME OF THE ASSESSEE AND THAT FACT WAS DISCLOSED AS PER THE E-RETURN. HOWEVER, FROM THE S IDE OF THE REVENUE, LD.SR.DR MR.D.K.SINGH HAS CONTESTED THAT THE SAID A MOUNT WAS DISCLOSED IN THE E-RETURN IN THE COLUMN PROFIT BEFORE TAXES , HENCE ON ACCOUNT OF THE ADMISSION OF THE ASSESSEE VIDE E-RETURN, THE AO HAD NO OPTION BUT TO TAX THE SAME IN THE HANDS OF THE ASSESSEE. 6. HAVING HEARD BOTH THE SIDES, WE HEREBY MAKE AN O BSERVATION THAT UNDER ANY CIRCUMSTANCE IT IS EXPECTED FROM THE AO T O COMPUTE A CORRECT TAXABLE INCOME. ONCE THE ADMITTED FACTUAL POSITION IS THAT ALONG WITH THE E-RETURN, THE ASSESSEE HAS ALSO FURNISHED ITS PROFI T & LOSS ACCOUNT AND THAT PROFIT & LOSS ACCOUNT DID NOT MENTION THE PRO FITS FROM BUSINESS, THEN THE AO WAS ACCEPTED TO FINALIZE THE ASSESSMENT ONLY ON THE BASIS OF THE FACTS AND FIGURES EMERGING FROM THE PROFIT & LO SS ACCOUNT AND OTHER ANNEXED ACCOUNTS OF THE ASSESSEE. WE THEREFORE HOL D THAT THE ISSUE IN HAND SIMPLY REQUIRES A VERIFICATION AT THE LEVEL OF THE AO. THE AO IS IN POSSESSION OF E-RETURN AS ALSO THE ACCOUNTS OF THE ASSESSEE, THEREFORE THERE ITA NOS.2710, 2711 & 2712/AHD/2012 CUSTARD APPLE INVESTMENTS PVT.LTD. VS. ITO ASST.YEARS 2007-08,2009-10 & 2010-11 - 6 - SHOULD NOT BE ANY DIFFICULTY IN COMPUTING THE CORRE CT TAXABLE INCOME OF THE ASSESSEE. FOR THIS LIMITED PURPOSE, WE ARE RES TORING THIS ISSUE AS RAISED IN THE GROUNDS OF APPEAL BACK TO THE STAGE O F THE AO TO COMPUTE THE CORRECT TAXABLE INCOME AS PER THE PROVISIONS OF LAW. WE ALSO DIRECT THE ASSESSEE TO BE PRESENT BEFORE THE AO; ALONG WIT H ITS ACCOUNTS TO DEMONSTRATE THE ALLEGED MISTAKE EARLIER COMMITTED A ND GET THAT MISTAKE RECTIFIED; WITHIN 20 DAYS ON RECEIPT OF THIS ORDER OF THE TRIBUNAL. WITH THESE DIRECTIONS, THE GROUNDS RAISED BY THE ASSESSE E ARE HEREBY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED BUT FOR STATISTICAL PURPOSES. SD/- SD/- ( .. ) ( ) ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 8 / 3 /2013 .., . ../ T.C. NAIR, SR. PS '& ' ()* +'*, / COPY OF THE ORDER FORWARDED TO : 1. '#$% / THE APPELLANT 2. &'$% / THE RESPONDENT. 3. ()(*+ , / CONCERNED CIT 4. , ('#) / THE CIT(A)-XXI, AHMEDABAD 5. /01 & *+, '# '*+, '2) / DR, ITAT, AHMEDABAD 6. 134 5 / GUARD FILE. '&- / BY ORDER, '/# & //TRUE COPY// ./ / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD