PRECISION ELECTRONICS INSTUMENTS & COMPONENTS, MUMBAI V. ITO 14(3)(1), MUMBAI

ITA 4770/MUM/2011

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71891 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-12-2013
• Assessment Year: 2007-2008
• Appeal Filed On: 14-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E B ENCH, MUMBAI . . , , , ! ' BEFORE SHRI I.P. BANSAL, JM AND SHRI SANJAY AROR A, AM ./ I.T.A. NO. 4770/MUM/2011 ( # # # # $ $ $ $ / ASSESSMENT YEAR : 2007-08 M/S. PRECISION ELECTRONICS INSTRUMENTS & COMPONENTS, 17, RANVIR BLDG., 66/70 PRINCESS STREET, DAVA BAZAR, MUMBAI-400 002 THE ITO 14(3)(1), MUMBAI % ! ./ & ./PAN/GIR NO. : AAFFP 4006L ( %' /APPELLANT ) .. ( ()%' / RESPONDENT ) %' * / APPELLANT BY : ` SHRI DILIP THAKKAR & SHRI RAJESH SHAH ()%' + * /RESPONDENT BY : SHRI ASHOK SURI # + ,-! / DATE OF HEARING :10.12.2013 .$ + ,-! / DATE OF PRONOUNCEMENT :10.12.2013 / / O R D E R PER I.P. BANSAL, JM: THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AG AINST THE ORDER PASSED BY LD. CIT(A)-25, MUMBAI DT.25.4.2011FOR A .Y. 2007-08. 2. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE READ AS UNDER: ITA NO.4770/M/2011 2 1. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFORMING THE ACTION OF AO AND CONFORMING THAT THERE IS NO MISTAKE TO BE RE CTIFIED. 2. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT APP RECIATI NG THAT THIS YEAR WAS THE FIRST YEAR ON ONLINE FILING AND T HE MISTAKE HAD CREPT IN WHILE PUTTING THE FIGURES. 3. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) FURTHER ERRED IN NOT APP RECIATING THAT THERE WAS NO SPECIFIC COLUMN IN ITRS OF THAT R ESPECTIVE YEAR WHEREIN SUCH FIGURES CAN BE FILLED. 4. ON THE FACTS AND UNDER THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) FAILED TO APPRECIATE THA T THE PARTNERS HAVE PAID TAX ON THE REMUNERATION AND INTE REST AND THIS AMOUNTS TO DOUBLE TAXATION. 3. THE ASSESSEE FILED ELECTRONIC RETURN ON 31.10.20 07 IN WHICH IT RETURNED ITS INCOME AT RS. 13,32,670/-. LATER ON I T WAS FOUND THAT THE RETURNED FIGURE WAS NOT CORRECT AS REMUNERATION AND INTEREST PAYABLE TO PARTNERS TOTALING TO RS. 7,35,560/- WAS NOT DEDUCTE D WHILE COMPUTING THE ASSESSABLE INCOME OF THE ASSESSEE WHICH WAS ONLY T O THE TUNE OF RS. 5,97,112/-. THE ASSESSEE FILED AN APPLICATION OF R ECTIFICATION WITH THE ASSESSING OFFICER. THE AO REJECTED THE SAID APPLIC ATION OF RECTIFICATION ON THE GROUND THAT WHATEVER RETURN WAS FILED BY THE ASSESSEE, THE INCOME WAS PROCESSED ON THE SAME FIGURE THEREFORE, THERE W AS NO MISTAKE. 4. THE LD. CIT(A) HAS ALSO REJECTED THE APPEAL OF T HE ASSESSEE AND HAS UPHELD THE ACTION OF THE AO. 5. IT IS THE CASE OF THE ASSESSEE THAT IT WAS FIRST YEAR OF E-FILING OF RETURN AND ASSESSEE COULD NOT UNDERSTAND THE INTRIC ACIES, THEREFORE, THE RETURN WAS WRONGLY FILED, THE ASSESSABLE INCOME OF THE ASSESSEE IS ONLY AN AMOUNT OF RS. 5,97,112/- IF THE INTEREST AND REMUN ERATION ALLOWABLE TO ITA NO.4770/M/2011 3 THE PARTNERS IS DEDUCTED. IT IS ALSO THE CASE OF T HE ASSESSEE SUCH MISTAKE CAN BE RECTIFIED AS PER DECISION IN THE CASE OF S HRIKANT REAL ESTATES (P) LTD VS ITO 140 ITD 155 AND ALSO THE DECISION OF IT AT MUMBAI IN THE CASE OF SUMANCHANDRA G. MEHTA VS ITO 60 SOT 21. IN THE DECISION IN THE CASE OF SHRIKANT REAL ESTATES (P) LTD (SUPRA) IT HAS BEEN HELD AS UNDER: WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E ORDERS OF THE LOWER AUTHORITIES AND THE COPY OF THE REVISED E-RETURN FILED BY THE ASSESSEE. IN THE PRESENT SYSTEM OF E-F ILING OF RETURN WHICH IS TOTALLY DEPENDED UPON THE USAGE OF SOFTWAR E, IT IS POSSIBLE THAT SOME CLERICAL ERRORS MAY OCCUR AT THE TIME OF ENTERING THE DATA IN THE ELECTRONIC FORM. THE RETURN IS PREPARED ELEC TRONICALLY WHICH IS CONVERTED INTO AN XML FILE EITHER THROUGH THE FR EE DOWN LOADED SOFTWARE PROVIDED BY THE CBDT OR BY THE SOFTWARES A VAILABLE IN THE MARKET. IN EITHER OF THE CASE, THERE IS EVERY POSSI BILITY OF ENTERING INCORRECT DATA WITHOUT HAVING THE EXPERT KNOWLEDGE OF PREPARING AN XML FILE. XML FILE SO CREATED IS UPLOADED TO THE OFFICIAL WEBSITE I.E. WWW.INCOMETAXINDIAEFILING.GOV.IN. ONCE THE RET URN IS 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, BANGLURU WITHIN 120 DAYS . KEEPING IN MIND THIS SYSTEM OF E-FILING OF THE RET URNS, COMING BACK TO THE FACTS OF THE CASE, WE FIND THAT THE ASSESSEE HAS CLAIMED SHORT TERM CAPITAL GAINS AND HAS SHOWN IT I N THE REVISED E-RETURN BUT THE SAME FIGURE DID NOT APPEAR UNDER T HE ITEM WHERE THE SHORT TERM CAPITAL GAIN IS TO BE TAXED AT SPECI AL RATE U/S. 111A OF THE ACT I.E. INTERNAL PAGE-19 OF THE RETURN UNDE R SCHEDULE CG CAPITAL GAINS UNDER ITEM NO. 7. HOWEVER, AT THE SAM E TIME WE FIND THAT UNDER SCHEDULE SI-INCOME CHARGEABLE TO INCOME TAX AT SPECIAL RATES IB WHICH IS AT INTERNAL P-24 OF THE RETURN, T HE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAINS (IIIA) SPECIAL RATE 10% INCOME RS. 2,65,853 TAX THEREON RS. 26585/- WHICH CLEARLY ESTABLISHES THAT THE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAINS LIA BLE TO BE TAXED AT SPECIAL RATE OF 10%. ACCORDINGLY, REVERSIN G 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. ITA NO.4770/M/2011 4 IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. 6. WE HAVE HEARD BOTH THE PARTIES ON THIS ISSUE AND THEIR CONTENTION HAVE CAREFULLY BEEN CONSIDERED. IF ASSESSEE HAS CO MMITTED ANY MISTAKE IN FILING THE E-RETURN, WHICH WAS THE VERY FIRST YEAR OF FILING THE E-RETURN, IT IS OPEN TO THE ASSESSEE TO FILE RECTIFICATION APPLICAT ION. RECTIFICATION APPLICATION OF THE ASSESSEE IS REQUIRED TO BE CONSI DERED ON MERITS. THIS VIEW IS SUPPORTED BY THE AFOREMENTIONED DECISIONS O F ITAT. ACCORDINGLY, WE DIRECT THE AO TO CONSIDER THE RECTI FICATION APPLICATION FILED BY THE ASSESSEE ON MERIT AND ALLOW THE CLAIM OF THE ASSESSEE AFTER VERIFICATION. WE DIRECT ACCORDINGLY. 7. FOR STATISTICAL PURPOSE, THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON 10.12.2013 . / + $ ! 0 1#2 10.12.2013 + 3 SD/- SD/ (SANJAY ARORA) (I.P. BANSAL ) ! / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; 1# DATED 10/12/2013 . # . ./ RJ , SR. PS ITA NO.4770/M/2011 5 / / / / + ++ + (,4 (,4 (,4 (,4 5 4$, 5 4$, 5 4$, 5 4$, / COPY OF THE ORDER FORWARDED TO : 1. %' / THE APPELLANT 2. ()%' / THE RESPONDENT. 3. 6 ( ) / THE CIT(A)- 4. 6 / CIT 5. 473 (,# , , / DR, ITAT, MUMBAI 6. 38 9 / GUARD FILE. /# /# /# /# / BY ORDER, )4, (, //TRUE COPY// : :: : / ; ; ; ; (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI