Krishi Upaj Mandi Samiti, GOLUWALA V. ITO, HANUMANGARH

ITA 286/JODH/2010

• Counselvise Citation: 28623314 RSA 2010
• Duration Of Justice: 2 year(s) 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 29-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M N MAURYA
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Rectification of order; Revised return
• Section: 143(3); 12A; 12AA; 12; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI R.K.GUPTA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NOS.274 TO 276 /JU/2010 ASSESSMENT YEARS: 2003-04, 2004-05 AND 2006-07 KRISHI UPAJ MANDI SIMITI, VS. ITO, WARD-1, HANUMA NGARH RAWATSAR PAN NO. AABTK0472D ITA NO.284/JU/2010 ASSESSMENT YEAR: 2004-05 KRISHI UPAJ MANDI SIMITI, VS. ITO, SURATGARH SURATGARH PAN NO. AABTK0467A ITA NOS.285 & 286/JU/2010 ASSESSMENT YEARS: 2004-05 & 2006-07 KRISHI UPAJ MANDI SIMITI, VS. ITO, WARD-1, HANUMA NGARH GOLUWALA PAN NO. AABTK0465C ITA NOS.289 & 290/JU/2010 ASSESSMENT YEARS: 2003-04 & 2004-05 KRISHI UPAJ MANDI SIMITI, VS. ITO, SURATGARH JETSSAR PAN NO. AABTK0475E 2 ITA NO.291/JU/2010 ASSESSMENT YEAR: 2004-05 KRISHI UPAJ MANDI SIMITI, VS. ITO, SARUTGARH SRI BIJAYNAGAR PAN NO. AABTK0474F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH GUPTA RESPONDENT BY : SHRI M.N.MAURYA DATE OF HEARING : 16-7-2012 DATE OF PRONOUNCEMENT : 16-7-2012 ORDER PER N.K.SAINI, A.M. ALL THESE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE ORDERS OF CIT(A), BIKANER. IN ALL THESE APPEALS, COMMON GROU ND IS RAISED AND ISSUE INVOLVED IS IDENTICAL HAVING SIMILAR FACTS, SINCE T HE APPEALS WERE HEARD TOGETHER, SO THESE ARE BEING DISPOSED OF BY THIS CO MMON ORDER FOR THE SAKE OF CONVENIENCE. 2. FIRST WE WILL DEAL WITH ITA NO. 274/JU/2010. TH E ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER:- THE LD.CIT(A) ERRED IN SUSTAINING THE REJECTION OF RECTIFICATION OF ASSESSMENT ORDER U/S 154 OF THE IN COME TAX ACT, 1961. 3 3. THE FACTS OF THE CASE AS APPEARING FROM THE ORDE RS OF THE AUTHORITIES BELOW IN BRIEF ARE THAT THE LD. CIT(A) IN THE IMPUG NED ORDER NOTED THAT THE ASSESSEE FILED AN APPLICATION FOR RECTIFICATION U/S 154 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER REFERRED TO AS THE ACT IN SHORT] ON 26.8.2009 CLAIMING RECTIFICATION OF ORDER PASSED U/S 143(3) O N 30.8.2006 IN RESPECT OF NON ALLOWANCE OF SET OFF OF EXCESS OF EXPENDITUR E OVER INCOME OF THE PREVIOUS YEAR. THE CLAIM OF THE ASSESSEE WAS REJEC TED BY THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESSEE NEITHER CLA IMED SET OFF OF ACCUMULATED EXCESS OF EXPENDITURE OVER INCOME IN TH E ORIGINAL RETURN NOR FILED ANY REVISED RETURN TO CLAIM THE SAME. THE AS SESSING OFFICER WAS OF THE VIEW THAT THERE WAS NO MISTAKE APPARENT FROM TH E RECORD WHICH COULD HAVE BEEN RECTIFIED. ACCORDINGLY, THE ASSESSEES C LAIM FOR RECTIFICATION WAS REJECTED. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) AND SUBMITTED THAT THE ASSESSING OFFICER FINALIZED THE ASSESSMENT U/S 143(3) OF THE ACT ON 30.8.2006 WITHOUT GIVING SET O FF OF ACCUMULATED EXCESS OF EXPENDITURE OVER INCOME OF PREVIOUS YEARS . THEREFORE, THE ACTION OF THE ASSESSING OFFICER WAS NOT PROPER WHEN THE EXCESS OF INCOME OVER EXPENDITURE WAS DETERMINED IN THE CONCLUDING P ART OF THE ASSESSMENT ORDER EVEN THOUGH THE ASSESSEE HAD NOT SHOWN SURPLU S / LOSS IN THE INCOME TAX RETURN EITHER ORIGINAL OR REVISED. IT WAS SUBM ITTED THAT THE ASSESSEES CLAIM MAY BE ALLOWED. 4 5. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE OBSERVED THAT THE ASSESSEES CLAIM WAS NOT TENABLE BECAUSE UNDER THE PROVISIONS OF SECTION 154 OF THE ACT THERE HAS TO BE A MISTAKE APPARENT FROM RECORD AND IF A REFERENCE IS TO BE MADE TO THE DOCUMENTS OUTSIDE THE RECORDS, IT WOULD NOT BE A MISTAKE APPARENT FROM RE CORD. HE FURTHER OBSERVED THAT WHEN AN ISSUE CAN BE RESOLVED BY WAY OF COMPLICATED PROCESS OF INVESTIGATION RECOURSE, IT CANNOT BE TAK EN TO SECTION 154 OF THE ACT. ACCORDING TO HIM THE RECTIFICATION U/S 154 O F THE ACT WAS NOT OBLIGATORY ON PART OF THE ASSESSING OFFICER AS CLEA R DATA WAS NOT AVAILABLE. RELIANCE WAS PLACED ON THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF ANCHOR PRESSING (P) LTD. VS. C IT (161 ITR 159). THE LD CIT(A) ALSO REFERRED TO THE JUDGMENT OF THE HON 'BLE SUPREME COURT IN THE CASE ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE L TD. (305 ITR 227) AND CAME TO THE CONCLUSION THAT THE ASSESSEE HAD FI LED ITS RETURN OF INCOME DECLARING NIL INCOME BUT NO CLAIM FOR SET OFF OF AC CUMULATED EXCESS OF EXPENDITURE OVER INCOME OF THE PREVIOUS YEAR WAS FI LED WITH SUCH RETURN AND THAT NO SUCH CLAIM WAS FILED BY FILING ANY REVI SED RETURN AS WELL AND THAT THE CLAIM WAS PUT FORWARD ONLY BY WAY OF AN AP PLICATION OF RECTIFICATION U/S 154, WHICH WAS NOT PERMISSIBLE AN D WHAT THE ASSESSEE WANTED WAS NEVER CLAIMED IN A PERMISSIBLE MANNER. ACCORDING TO LD CIT(A), THE DEDUCTIONS OR REBATE, ALTHOUGH LEGALLY ALLOWABLE BUT NOT CLAIMED OR ALLOWED DID NOT CONSTITUTE A MISTAKE APP ARENT FROM RECORD AND THE ASSESSEE VIDE APPLICATION FOR RECTIFICATION SOU GHT A DECISION ON AN ISSUE WHICH WAS DEBATABLE AND WHERE TWO VIEWS WERE POSSIBLE. THEREFORE, 5 SUCH A CLAIM WAS NOT BY ANY STRETCH OF IMAGINATION, A MISTAKE APPARENT FROM RECORD. HE ACCORDINGLY CONFIRMED THE VIEW TAK EN BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL. 6. DURING THE COURSE OF HEARING, THE LD. DR AT THE VERY OUTSET STATED THAT THE ISSUE IS SQUARELY COVERED BY THE EARLIER D ECISION DATED 13.7.2012 OF THE ITAT, JODHPUR BENCH OF THE TRIBUNAL IN ITA N OS. 282 & 283/JU/2010 AND OTHERS IN THE CASE OF KRAISHI UPAJ MANDI SAMITI, SURATGARH AND OTHERS VS. ITO, THE COPY OF THE SAID ORDER WAS FURNISHED WHICH IS PLACED ON RECORD. IN HIS RIVAL SUBMISSION S, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CLAIM OF THE ASSESS EE SHOULD NOT HAVE BEEN REJECTED WHEN THE ASSESSING OFFICER TOOK THE FIGURE OF NET LOSS IN PLACE OF NIL INCOME DECLARED BY THE ASSESSEE WHICH WAS SHOWN BECAUSE THE ASSESSEE APPLIED FOR REGISTRATION U/S 12A OF THE AC T BEFORE THE COMMISSIONER TO MAKE A CLAIM OF DEDUCTION U/S 11, 1 2 AND 13 OF THE I.T. ACT. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. IT IS NOTICED THAT AN IDENTICAL ISSUE HAVING SIMILAR FACTS WAS INVOLVE D IN THE AFORESAID REFERRED TO CASE OF KRISHI UPAJ MANDI SAMITI, SURAT GARH & OTHERS VS. ITO IN ITA NO. 282 & 283/JU/2010 & OTHERS, WHEREIN THE APPEALS OF THE ASSESSEE WERE DISMISSED AND THE RELEVANT OBSERVATIO NS ARE MADE IN PARAS 7 TO 7.2 OF THE ORDER DATED 13.7.2012 WHICH READ AS U NDER:- 6 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND TH E MATERIAL ON RECORD AND THE FACTS NOTED ABOVE HAVE N OT BEEN DISPUTED BY THE LD. COUNSEL FOR THE ASSESSEE. THE I SSUE IS THE SAME IN ALL THE APPEALS ON IDENTICAL FACTS AS IS AD MITTED BY BOTH THE PARTIES EXCEPT THAT IN SOME CASES, THE AO IN THE COMPUTATION OF INCOME TOOK THE INCOME AS PER NET LO SS AS PER INCOME AND EXPENDITURE ACCOUNT AS EXPLAINED ABOVE. HOWEVER, THIS WOULD ALSO NOT MAKE ANY DIFFERENCE ON THE ISSU E. IT IS ADMITTED FACT THAT IN ALL THE CASES, THE ASSESSEE F ILED RETURN OF INCOME DECLARING NIL INCOME CLAIMING THAT THE ASSES SEE WOULD BE ENTITLED FOR EXEMPTION ON GRANT OF REGISTRATION U/S. 12AA OF THE ACT. COPY OF COMPUTATION OF INCOME IS ALSO FILE D WITH THE RETURN OF INCOME, IN WHICH THE ASSESSEE CLAIMED TAX ABLE INCOME AS NIL. IT IS, THEREFORE, ESTABLISHED ON RECORD THA T THE ASSESSEE NEITHER CLAIMED THE SET OFF OF ACCUMULATED EXCESS O F EXPENDITURE OVER INCOME IN THE ORIGINAL RETURN OF I NCOME NOR FILED ANY REVISED RETURN TO CLAIM THE SAME. THE AO IN THE RECTIFICATION ORDER SPECIFICALLY NOTED THAT THE ASS ESSEE HAS NOT MADE ANY CLAIM OF LOSS IN THE RETURN OF INCOME NOR IN THE COMPUTATION SHEET OF INCOME. THEREFORE, THE CLAIM O F SET OFF WAS MADE BY THE ASSESSEE FOR THE FIRST TIME IN THE APPLICATION U/S. 154 OF THE IT ACT. SECTION 154 OF THE IT ACT P ROVIDES THAT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM TH E RECORD, AN INCOME-TAX AUTHORITY REFERRED TO IN SECTION 116, MA Y AMEND ANY ORDER PASSED BY IT UNDER THE PROVISIONS OF THIS ACT AND AMEND ANY INTIMATION OR DEEMED INTIMATION U/S. 143( 1) OF THE IT ACT. THE HONBLE SUPREME COURT IN THE CASE OF T. S. BALRAM, ITO VS. VOKART BROTHERS AND OTHERS, 82 ITR 50 HELD A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIO NS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MIS TAKE APPARENT FROM THE RECORD. IN THIS CASE, IT WAS ALSO HELD THAT IT WAS NOT OPEN TO THE ITO TO GO INTO THE TRUE SCOPE OF THE PROVISIONS OF THE ACT IN A RECTIFICATION PROCEEDINGS U/S. 154 OF THE ACT. 7.1 HONBLE CALCUTTA HIGH COURT IN THE CASE OF HIND USTAN LEVER LTD. VS. JCIT, 284 ITR 42 HELD SUB-SECTION (1) OF SECTION 154 OF THE INCOME-TAX ACT, 1961, CLEARLY STATES THE CIRCUMSTANCES UNDER W HICH RECTIFICATION CAN BE MADE. A MISTAKE MUST BE APPARE NT FROM THE RECORDS, MEANING THEREBY NO EXTERNAL HELP 7 EITHER ON ACT OR IN LAW IS REQUIRED TO DETECT SUCH MISTAKE. THE MISTAKE MUST BE SO OBVIOUS THAT IT CAN EASILY B E CORRECTED, TO WIT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION, ETC. THE QUESTION WHETHER INTERPRETATION OF A PROVISION OF LAW IS RIGHT OR WR ONG IS PER SE A DEBATABLE ISSUE. THIS ISSUE CANNOT BE RESO LVED BY THE OFFICIAL HAVING CO-ORDINATE JURISDICTION UND ER SECTION 154 OF THE ACT AS IT COULD NOT BE TERMED TO BE APPARENT FROM THE RECORD. 7.2 IN THE INSTANT CASE, IT WAS FOUND THAT THE ASSE SSEE FILED RETURN OF INCOME DECLARING NIL INCOME AND NO CLAIM OF SET OFF OF ACCUMULATED EXCESS OF EXPENDITURE OVER INCOME WAS F ILED WITH THE RETURN OF INCOME. NO SUCH CLAIM WAS ALSO MADE I N THE REVISED RETURN. THE ASSESSEE IS TRYING TO TAKE BENE FIT OF THE COMPUTATION OF INCOME TAKEN BY THE AO IN SOME CASES AS PER INCOME AND EXPENDITURE ACCOUNT, WHICH WAS NOT PERMI SSIBLE. THE ASSESSEE IN THE COMPUTATION OF INCOME DECLARED NIL INCOME AND ALSO FILED THE RETURN OF INCOME AT NIL INCOME. THE AO IN THE ORDER U/S. 154 OF THE IT ACT SPECIFICALLY MENTI ONED THAT ON GOING THROUGH THE RECORD, THE ASSESSEE DID NOT CLAI M ANY LOSS IN THE RETURN OF INCOME OR IN THE COMPUTATION OF IN COME. THEREFORE, THERE WAS NO POWER WITH THE ASSESSING OF FICER TO ENTERTAIN SUCH CLAIM MADE OTHERWISE THAN BY WAY OF REVISED RETURN. WE ARE FORTIFIED IN OUR VIEW BY THE JUDGMEN T OF HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. (S UPRA), IN WHICH IT WAS HELD THE SUPREME COURT DISMISSED THE APPEAL, MAKING IT CLEAR THAT THE DECISION WAS RESTRICTED TO THE POWER OF THE ASSESSING AUTHORITY TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN, AND D ID NOT IMPINGE ON THE POWER OF THE APPELLATE TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961. IT IS ALSO CLEAR FROM THE FACTS NOTED BY THE AUTHOR ITIES BELOW THAT THE ASSESSEE MADE CLAIM OF SET OFF FOR THE FIR ST TIME IN THE RECTIFICATION APPLICATION U/S. 154 OF THE ACT, BUT THE AO CANNOT ENTERTAIN CLAIM OF SET OFF AT THE ASSESSMENT STAGE. HOW IT CAN BE ENTERTAINED BY THE AO U/S. 154 OF THE IT ACT IS NOT EXPLAINED BY THE LD. COUNSEL FOR THE ASSESSEE. FURTHER, THE M ISTAKE APPARENT ON RECORD OF INCOME-TAX AUTHORITY CAN BE R ECTIFIED U/S. 154 OF THE ACT, BUT WHEN THERE WAS NO CLAIM MA DE AT THE ASSESSMENT STAGE OR IN THE RETURN OF INCOME AT THE TIME OF ASSESSMENT PROCEEDINGS, THERE WAS NO SUCH CLAIM AVA ILABLE ON 8 RECORD OF THE AO. THEREFORE, THE CLAIM MADE SUBSEQU ENTLY IN THE PROCEEDINGS U/S. 154 OF THE ACT WOULD NOT CONST ITUTE THAT THE SAME IS ARISING OUT OF THE RECORD OF THE INCOME -TAX AUTHORITY. SINCE, THERE WAS NO CLAIM ON THE RECORD OF THE AO AT THE ASSESSMENT STAGE, THERE COULD NOT HAVE BEEN ANY MISTAKE ON RECORD OF INCOME-TAX AUTHORITY. CONSIDERING THE ABO VE DISCUSSION IN THE LIGHT OF DECISIONS CITED ABOVE, W E DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE LD. CIT(A) IN UP HOLDING THE REJECTION OF APPLICATION U/S. 154 OF THE ACT. WE, T HEREFORE, DO NOT FIND ANY MERIT IN ALL THE APPEALS OF THE ASSESS EE AS MENTIONED ABOVE AND ACCORDINGLY, ALL THE APPEALS OF THE ASSESSEES ARE DISMISSED. 8. SO RESPECTFULLY FOLLOWING THE AFORESAID REFERRED TO ORDER DATED 13.7.2012 OF KISAN UPAJ MANDI SAMITI, SURATGARH & O THERS V ITO, WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE ASSESSEE. 9. IN ALL OTHER APPEALS, THE FACTS ARE IDENTICAL AN D EVEN THE RIVAL CONTENTIONS WERE SIMILAR, THEREFORE, OUR FINDINGS G IVEN IN FORMER PART OF THIS ORDER IN RESPECT OF KISAN UPAJ MANDI SIMITI, R AWATSAR VS. ITO IN ITA NO. 274/JU/2010 FOR ASSESSMENT YEAR 2003-04 (SU PRA) SHALL APPLY MUTATIS-MUTANDIS. 10. IN THE RESULT, ALL THE APPEALS ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 16-07-2012) SD/- SD/- (R.K.GUPTA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : JULY, 2012 RKK 9 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR