Sudha Gupta, New Delhi V. DCIT, New Delhi

ITA 5444/DEL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81627 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-08-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 12-06-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 26-10-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G S SEMA
• Keywords: Rectification of order; Revised return
• Section: 143(3); 154

Judgement Text

ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G NEW DELHI BEFORE SHRI R.S. SYAL, ACCOUNTANT MEMBER AND SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER I.T.A.NO.5444/DEL/2012 ASSESSMENT YEAR : 2008-09 SUDHA GUPTA, VS DY .COMMISSIONER OF INCOME TAX, A-172, CENTRAL CIRCLE-5, NEW DELHI. MEERA BAGH, NEW DELHI. (PAN: AAGPG8225R) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI CHANDRA SHEKHAR RESPONDENT BY : SHRI G.S. SEMA, SR. DR O R D E R PER CHANDRAMOHAN GARG, JUDICIAL MEMBER THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAI NST THE ORDER OF THE CIT(A)-XXXI, NEW DELHI DATED 29.08.2012 IN APPEAL N O. 713/09-10 FOR AY 2008-09 BY WHICH THE CIT(A) UPHELD THE ORDER OF ACIT, CENTRAL CIRCLE- 5, NEW DELHI DATED 03.03.2010 PASSED U/S 154 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT). THE ASSESSEE HAS RAISED FOLLOW ING GROUNDS IN THIS APPEAL:- 1. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED ASSESSING OFFICER AFTE R RECORDING THE SPECIFIC STATEMENT WITH REGARD TO SURRENDERED INCOME WHICH PERTAINS TO JEWELRY IN ASSESSMENT ORDER U/S 143(3) DID NOT AGREE WITH ASSE SSEE ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 2 THAT THE MISTAKE WAS APPARENT FROM THE RECORD. HENC E ORDER PASSED IS UNJUSTIFIED. 2. THAT ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LEARNED CIT(A) AND ASSESSING OFFICE R ERRED BY NOT ACCEPTING THE MISTAKE WHICH WAS APPARENT, OB VIOUS, PATENT, EVIDENT, VISIBLE, CLEAR MISUNDERSTANDING, MISCONCEPTION, UNDERSTAND WRONGLY AND NOT DEPENDENT ON ELABORATION OR ARGUMENT. HENCE ORDER PASSED IS UNJUSTIFIED. 3. THAT ON THE FACTS AND THE CIRCUMSTANCE OF THE CA SE AND IN LAW, THE HONEST MISTAKE OF THE APPELLANT IS COVERED U/S 154 AND THE ASSESSMENT ORDER IS LIABLE TO BE CORRECTED. 2. BRIEFLY STATED THE FACTS GIVING RISE TO THIS APP EAL ARE THAT THE AO COMPLETED ASSESSMENT U/S 143(3) OF THE ACT BY PASSI NG ORDER DATED 31.12.2009. SUBSEQUENTLY, THE ASSESSEE FILED APPLI CATION U/S 154 OF THE ACT BEFORE THE AO WHICH WAS REJECTED BY PASSING ORDER D ATED 03.03.2010. THE RELEVANT OBSERVATIONS AND CONCLUSION OF THIS ORDER PASSED U/S 154 OF THE ACT READ AS UNDER:- IN YOUR APPLICATION, YOU HAVE MENTIONED THAT IN TH E RETURN FILED FOR THE A. Y. 2008-09 AMOUNT OF RS.241 4144/- CORRESPONDS TO THE JEWELLERY FOUND DURING THE SEARC H AND WHICH HAD BEEN SHOWN UNDER THE HEAD OF INCOME- FROM OTHER SOURCES. BESIDES, YOU HAVE MENTIONED THAT DU E TO CERTAIN CONFUSION INSTEAD OF SHOWING RS.20,00,000/- AS AN ADDITIONAL INCOME &.24,14,1441- WAS WRONGLY TAKE N IN MY COMPUTATION OF INCOME. AS PER STATEMENT RECOR DED ON OATH ON 28TH SEPTEMBER, 2007 I HAVE DISCLOSED FI GURE OF RS.24,14,1441/- WHICH INCLUDE JEWELLERY PURCHASE OF RS.20.00 LACS AS ADDITIONAL INCOME AND RS.4,14,144/ - ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 3 JEWELLERY AS MY ISTRI DHAN WHICH I GOT AT THE TIME OF MY MARRIAGE. ' FURTHER, AS PER LETTER RECEIVED IN THIS OFFICE ON 26.02.2009 IN THIS CONNECTION YOU HAVE POINTED OUT THAT THE OATH STATEMENT WAS SPECIFICALLY MENTIONED FOR UNDISCLOSED INCOME IN THE ORDER U/S 143(3) OF THE I NCOME TAX ACT, 1961 DATED 31.12.2009 AND THAT THE OATH STATEMENT ALSO REVEALED THAT ASSESSEE HAD CATEGORIC ALLY ACCEPTED AMOUNT OF RS.20.00 LACS AS ADDITIONAL INCO ME FOR ABOVE SAID ASSESSMENT YEAR. AFTER, CONSIDERING THE SUBMISSIONS FILED BY YOU, IT IS INFORMED THAT THERE IS NO MISTAKE WHICH IS APPAR ENT FROM RECORDS IN THE ORDER PASSED U/S 143(3) ON 31.12.2009. THE SECTION 154 OF THE I.T.ACT, SPECIFI CALLY DEALS WITH THE MISTAKES WHICH ARE APPARENT FROM REC ORDS. IN THE RETURN OF INCOME FILED BY YOU FOR THE YEAR CONSIDERATION, YOU HAVE DECLARED INCOME FROM OTHER SOURCES AMOUNTING TO RS.24, 77, 798/- AND TILL THE ORDER ASSED U/S 143(3) ON 31.12.2009, NEITHER ANY REVISED RETURN NOR AN RECTIFICATION APPLICATION WAS FILE BY YOU. BESIDES, DURING THE COURSE OF ASSESSMENT PROCEEDING S WHEN YOU WERE ASKED TO EXPLAIN MISC. INCOME OF RS.24,14,144/-,YOUR AUTHORIZED REPRESENTATIVE INFOR MED THAT SUCH AMOUNT REPRESENT JEWELLERY, WHICH HAD BEE N SHOWN AS OTHER INCOME. IN THE LIGHT OF ABOVE FACTS, IT BECOMES CLEAR THAT SINCE THERE IS NO MISTAKE WHICH IS APPARENT FROM RE CORDS, THEREFORE NO ACTION U/S 154 IS WARRANTED. ACCORDING LY, YOUR APPLICATION FILED U/S 154 OF THE LT. ACT, 1961 IS HEREBY REJECTED. 3. NOW, THE AGGRIEVED ASSESSEE IS BEFORE THIS TRIBU NAL WITH THE GROUNDS AS REPRODUCED HEREINABOVE. ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 4 4. WE HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. LD. AR SUBMITT ED A WRITTEN SYNOPSIS/ARGUMENT AND CONTENDED THAT DURING THE COU RSE OF RECORDING OF STATEMENT OF ASSESSEE, IT WAS ADMITTED BY THE ASSES SEE THAT JEWELLERY WORTH RS.4,14,144/- WAS STRI DHAN AND AMOUNT OF RS.20 LAKH MAY BE TREATED AS ADDITIONAL INCOME OF THE ASSESSEE FOR THE YEAR UNDE R CONSIDERATION. DRAWING OUR ATTENTION TOWARDS PAGE NO. 11 AND 12 OF THE PAP ER BOOK, THE AR FURTHER SUBMITTED THAT DUE TO OVERSIGHT, THE ASSESSEE FILED RETURN OF INCOME SHOWING RS.24,14,144/- AS MISCELLANEOUS INCOME IN COMPUTATI ON OF INCOME IN PLACE OF RS.20 LAKH WHICH WAS ADMITTED AS ADDITIONAL INC OME. THE AR FURTHER CONTENDED THAT IN THE ORDER PASSED U/S 143(3) OF TH E ACT, IT IS APPARENT THAT THE ISSUE OF JEWELLERY WAS VERY WELL DISCUSSED ON T HE BASIS OF STATEMENT OF THE ASSESSEE RECORDED ON OATH ON THE DATE OF SEARCH I.E. 28.9.2007. THE AR FURTHER POINTED OUT THAT THE STATEMENT RECORDED ON OATH BECOMES THE RECORD WITHIN THE MEANING OF SECTION 154 OF THE ACT AND, T HEREFORE, THE AUTHORITIES BELOW WRONGLY HELD THAT THERE IS NO MISTAKE APPAREN T FROM THE RECORD AS THE RETURN FILED WITH COMPUTATION OF INCOME WAS NEVER R EVISED NOR ANY APPLICATION TO THIS EFFECT WAS FILED BEFORE THE COM PLETION OF RECORD. LD. AR PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MASTER CONSTRUCTION COMPANY (P) LTD. VS STATE OF OR ISSA (1966) 17 ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 5 STC 360 (SC) AND SUBMITTED THAT THE HONBLE APEX COURT HAS DILA TED ON THE TERM AN ERROR APPARENT FROM RECORD TO BE ONE WHIC H IS AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTION OF FACT OR LAW. THE AR ALSO PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS HERO CYCLES (P) LTD. (1997) 228 ITR 463(SC) AND SUBMITTED THAT A SIMILAR VIEW HAS BEEN EXPRESSED TH AT FOR INVOKING JURISDICTION U/S 154 OF THE ACT, FOR EXERCISING POW ER OF RECTIFICATION OF MISTAKE, IT IS A CONDITION PRECEDENT THAT THE MISTA KE MUST BE GLARING AND OBVIOUS. THE AR POINTED OUT THAT THE AO IGNORED S TATEMENT OF THE ASSESSEE RECORDED ON OATH ON THE DATE OF SEARCH SPECIALLY AN SWER TO QUESTION NO. 14 AND SUBMITTED THAT THE AO TOOK A WRONG FIGURE WHILE DECIDING THE ISSUE OF UNDISCLOSED INCOME AND THE AO SHOULD HAVE RECTIFIED THE SAME U/S 154 OF THE ACT AND THE AO WAS NOT JUSTIFIED IN REJECTING T HE APPLICATION OF THE ASSESSEE AND THE CIT(A) ALSO ERRED IN CONFIRMING TH E ORDER OF THE AO PASSED U/S 154 OF THE ACT DENYING RELIEF FOR THE ASSESSEE. 5. ON CAREFUL CONSIDERATION OF ABOVE SUBMISSIONS, A T THE OUTSET, WE OBSERVE THAT REPLYING TO QUESTION NO. 14 OF THE REV ENUE AUTHORITIES, THE ASSESSEE ANSWERED THAT JEWELLERY WORTH RS.4,14,144 IS HER STRI DHAN WHICH SHE GOT AT THE TIME OF HER MARRIAGE AND ON OTHER OC CASIONS. THE BALANCE JEWELLERY WORTH RS.20 LAKH WAS PURCHASED BY HER. W E FURTHER OBSERVE THAT ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 6 IN REPLY TO QUESTION NO. 15, THE ASSESSEE SUBMITTED THAT THE SOURCE OF ACQUISITION OF JEWELLERY IS NOT EXPLAINABLE BUT THE SAME MAY PLEASE BE TREATED AS HER ADDITIONAL INCOME FOR THE YEAR UNDER CONSIDERATION WHICH HAS BEEN SPENT ON THE PURCHASE OF JEWELLERY. IN THIS S ITUATION, WE OBSERVE THAT THE AO WRONGLY OBSERVED THAT THE ASSESSEE SURRENDER ED INCOME OF RS. 24,14,144/- ON ACCOUNT OF JEWELLERY AS UNDISCLOSED INCOME AND IT WAS A MISTAKE APPARENT FROM RECORD IN THE LIGHT OF STATEM ENT OF ASSESSEE RECORDED ON OATH DURING THE SEARCH PROCEEDINGS ON 28.9.2007. 6. IN VIEW OF ABOVE, WE COME TO A CONCLUSION THAT T HE AO AS WELL AS CIT(A) WERE WRONG IN HOLDING THAT THERE IS NO MISTA KE APPARENT FROM RECORD. PER CONTRA, WE ARE INCLINED TO HOLD THAT THERE WAS A GLARING MISTAKE ON THE FACE OF RECORD IN THE LIGHT OF STATEMENT OF THE ASS ESSEE RECORDED ON OATH WHICH COULD HAVE BEEN RECTIFIED BY THE AO BY ALLOWI NG APPLICATION OF THE ASSESSEE FILED U/S 154 OF THE ACT BUT THE AO AS WEL L AS CIT(A) FAILED TO GRANT JUSTIFIED AND LEGAL RELIEF FOR THE ASSESSEE. ACCOR DINGLY, ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND AO IS DIRECTED TO PASS APPROPRIATE ORDER ON THE APPLICATION OF THE ASSESSEE FILED U/S 154 OF THE ACT BY AFFORDING DUE OPPORTUNITY OF HEARING FOR THE ASSESSEE. THEREFORE , THE ISSUE IS RESTORED TO THE FILE OF AO WITH THE ABOVE DIRECTION AND APPEAL OF THE ASSESSEE IS DEEMED TO BE ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 5444/DEL/2012 ASSTT.YEAR: 2008-09 7 ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND AUGUST 2014. SD/- SD/- (R.S. SYAL) (CHANDRAMO HAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DT. 22 ND AUGUST 2014 GS COPY FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR BY ORDER ASSTT. REGISTRAR