SHRIKANT REAL ESTATES P.LTD, MUMBAI V. ITO 4(3)(4), MUMBAI

ITA 4304/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8603 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 21-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K G KUTTY
• Keywords: Revised return
• Section: 154; 11; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI H.L. KARWA, PRESIDENT AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 4304/MUM/2012 ASSESSMENT YEAR-2008-09 M/S. SHRIKANT REAL ESTATES PVT. LTD., F-11, MANEK MAHAL, 3 RD FLOOR, 90, VEER NARIMAN ROAD, MUMBAI-400 020 PAN-AAACS 5270R VS. THE ITO 4(3)(4), AAYAKAR BHAVAN, MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI J.P. BAIRAGRA RESPONDENT BY: SHRI K.G. KUTTY DATE OF HEARING : 16.10.2012 DATE OF PRONOUNCEMENT:19.10.2012 O R D E R PER N.K. BILLAIYA, AM: WITH THIS APPEAL THE ASSESSEE HAS CHALLENGED THE C ORRECTNESS OF THE ORDER OF THE LD. CIT(A)-8, MUMBAI DT.2.5.2012 PERT AINING TO ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS QUESTIONED THE CORRECTNESS BY R AISING THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION O F THE AO IN REJECTING THE APPLICATION FOR RECTIFICATION U/S. 15 4 OF THE I.T. ACT, 1961 MADE BY THE APPELLANT COMPANY. 2. THE LD. CIT(A) FURTHER ERRED IN CONFIRMING THE ACTION OF THE AO IN COMPUTING THE INCOME TAX PAYABLE ON SHORT TERM CAPITAL OF RS. 2,65,853/- AT THE NORMAL RATE O F 30% AS AGAINST TAX PAYABLE @ 10% AS PROVIDED IN SEC. 11 1A OF THE I.T. ACT, 1961. ITA NO. 4304/M/2012 2 3. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT FO R THE YEAR UNDER CONSIDERATION, THE ASSESSEE FILED E-RETURN WHICH WA S REVISED BY FILING ANOTHER E-RETURN ON 5.1.2009. THE ASSESSEE RECEIVED INTIMATION U/S. 143(1) OF THE ACT AND FOUND THAT THE INCOME ASSESSE D AND THE RATE OF TAX IS DIFFERENT FROM THE INCOME RETURNED AND THE TAXES PA ID BY HIM. THE ASSESSEE IMMEDIATELY MOVED AN APPLICATION U/S. 154 OF THE AC T BEFORE THE AO STATING THAT AS PER INTIMATION U/S. 143(1), THE TAXABLE INC OME IS SHOWN AT RS. 4,80,610/- AGAINST THE RETURNED INCOME AT RS. 4,47, 454/-. IT WAS FURTHER POINTED OUT THAT THE TAX HAS BEEN CALCULATED AT NOR MAL RATE ON ENTIRE INCOME IGNORING THE FACT THAT THE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN AT RS. 2,65,853/- WHICH SHOULD HAVE BEEN TAXED AT SPECIAL RATE AS APPLICABLE ON SHORT TERM CAPITAL GAIN. THE AO REJECTED THE APPLI CATION U/S. 154 OF THE ACT HOLDING THAT THE ASSESSEE HAS NOT SHOWN SHORT TERM CAPITAL GAIN U/S. 111A AT S. NO. A7 OF SCHEDULE CG APPEARING ON PAGE 19 OF TH E E-RETURN. THE AO FURTHER OBSERVED THAT THE SAME MISTAKE HAS BEEN OCC URRED IN THE ORIGINAL AS WELL AS IN THE REVISED RETURN OF INCOME FILED BY TH E ASSESSEE. ACCORDING TO THE AO, THE PROPER REMEDY WAS BY FILING A REVISED RETUR N OF INCOME INSTEAD OF MOVING AN APPLICATION U/S. 154 OF THE ACT. THE AO ACCORDINGLY REJECTED THE APPLICATION U/S. 154 OF THE ACT. 4. AGGRIEVED, THE ASSESSEE TOOK THE MATTER BEFORE T HE LD. CIT(A) BUT WITHOUT ANY SUCCESS. 5. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENT ION TO PAGE 19, 27 AND 32 OF THE PAPER BOOK WHICH ARE PART OF THE E-RE TURN FILED FOR THE YEAR UNDER CONSIDERATION. DRAWING OUR ATTENTION TO INTE RNAL PAGE-11 OF THE REVISED E-RETURN, THE LD. COUNSEL POINTED OUT THAT AT ITEM NO. 3 A(I) INADVERTENTLY AND DUE TO CLERICAL ERROR IN THE AMOUNT COLUMN, IT HAS BEEN MENTIONED AS NIL. HOWEVER, AT THE SAME TIME UNDER ITEM NO. (3AII) AND (3AIII) SHORT TERM CAPITAL GAIN HAD BEEN SHOWN AT RS. 2,65,853/-. FUR THER DRAWING OUR ATTENTION TO INTERNAL PAGE P-19 OF THE REVISED E-RETURN UNDER SCHEDULE CG-CAPITAL GAIN, ALTHOUGH AT ITEM NO. 6, THE ASSESSEE HAS SHOWN TOTAL SHORT TERM CAPITAL GAIN ITA NO. 4304/M/2012 3 AT RS. 2,65,853/- BUT AGAIN DUE TO INADVERTENCE AND CLERICAL ERROR AT ITEM NO. 7 SHORT TERM CAPITAL GAIN U/S. 111A INCLUDED IN 6 SHOWN AS NIL. THE LD. COUNSEL ARGUED THAT DUE TO THESE CLERICAL ERRORS, T HE MISTAKE OCCURRED WHICH DESERVES TO BE RECTIFIED. 6. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE SUPPO RTED THE FINDINGS OF THE LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE COPY OF THE REVISED E-RET URN FILED BY THE ASSESSEE. IN THE PRESENT SYSTEM OF E-FILING OF RETURN WHICH IS TOTALLY DEPENDED UPON THE USAGE OF SOFTWARE, IT IS POSSIBLE THAT SOME CLERICA L ERRORS MAY OCCUR AT THE TIME OF ENTERING THE DATA IN THE ELECTRONIC FORM. THE RETURN IS PREPARED ELECTRONICALLY WHICH IS CONVERTED INTO AN XML FILE EITHER THROUGH THE FREE DOWN LOADED SOFTWARE PROVIDED BY THE CBDT OR BY THE SOFT WARES AVAILABLE IN THE MARKET. IN EITHER OF THE CASE, THERE IS EVERY POSSI BILITY OF ENTERING INCORRECT DATA WITHOUT HAVING THE EXPERT KNOWLEDGE OF PREPARI NG AN XML FILE. XML FILE SO CREATED IS UPLOADED TO THE OFFICIAL WEBSITE I.E. WWW.INCOMETAXINDIAEFILING.GOV.IN. ONCE THE RETURN I S UPLOADED ITR-V , WHICH IS THE ACKNOWLEDGEMENT OF THE RETURN SO FILED , IS GENERATED BY THE SYSTEM ITSELF AND IF , THE RETURN IS NOT SIGNED DIGITALLY, THEN ITR-V SO GENERATED HAS TO BE SIGNED AND SENT TO CENTRAL PROCESSING CENTRE, BA NGLURU WITHIN 120 DAYS. 8. KEEPING IN MIND THIS SYSTEM OF E=FILING OF THE R ETURNS , COMING BACK TO THE FACTS OF THE CASE, WE FIND THAT THE ASSESSEE H AS CLAIMED SHORT TERM CAPITAL GAINS AND HAS SHOWN IT IN THE REVISED E-RET URN BUT THE SAME FIGURE DID NOT APPEAR UNDER THE ITEM WHERE THE SHORT TERM CAPI TAL GAIN IS TO BE TAXED AT SPECIAL RATE U/S. 111A OF THE ACT I.E. INTERNAL PAG E-19 OF THE RETURN UNDER SCHEDULE CG CAPITAL GAINS UNDER ITEM NO. 7. HOWE VER, AT THE SAME TIME WE FIND THAT UNDER SCHEDULE SI-INCOME CHARGEABLE TO IN COME TAX AT SPECIAL RATES IB WHICH IS AT INTERNAL P-24 OF THE RETURN, THE ASSE SSEE HAS SHOWN SHORT TERM CAPITAL GAINS (IIIA) SPECIAL RATE 10% INCOME RS. 2, 65,853 TAX THEREON RS. 26585/- WHICH CLEARLY ESTABLISHES THAT THE ASSESSE E HAS SHOWN SHORT TERM ITA NO. 4304/M/2012 4 CAPITAL GAINS LIABLE TO BE TAXED AT SPECIAL RATE OF 10%. ACCORDINGLY, REVERSING THE FINDING OF THE LD. CIT(A), WE DIRECT THE AO TO ALLOW CREDIT OF THE SHORT TERM CAPITAL GAINS SUBJECT TO SPECIAL RATE OF TAX AS PER PROVISIONS OF SEC. 111A OF THE ACT AND RECTIFY THE INTIMATION U/S. 143 (1) ACCORDINGLY. 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED ON THIS 19 TH DAY OF OCTOBER, 2012 SD/- SD/- (H.L. KARWA) (N.K. BILLAIYA ) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED 19 TH OCTOBER, 2012 RJ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR SMC BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI