D S K & ASSOCIATES, MUMBAI V. ITO 20(2)(1), MUMBAI

ITA 5763/MUM/2012

• Counselvise Citation: 576319914 RSA 2012
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 14-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Assessment record; Revised return
• Section: 154; 143(3); 139(5)

Judgement Text

D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI .., .. , BEFORE SHRI B.R. MITTAL, J.M. AND SHRI P.M. JAGTAP, AM ./ I.T.A. NO.5763 /MUM/2012 ( / ASSESSMENT YEAR : 2007-2008 M/S D.S.K. & ASSOCIATES, 19,ANDHERI UNIVERSAL INDUSTRIAL PREMISES, 57, JP ROAD, ANDHERI WEST, MUMBAI 400 058. / VS. INCOME TAX OFFICER 20(2)(1), PIRAMAL CHAMBERS, 7 TH FLOOR, LALBAUG, PAREL, MUMBAI 400 012. . / PAN : AACFD 5962 C ( ' / APPELLANT ) .. ( #' / RESPONDENT ) APPELLANT BY SHRI VISHWAS V. MEHENDALE RESPONDENT B Y : SHRI SANJEEV JAIN ( ) / DATE OF HEARING : 12-11-2013 ( ) / DATE OF PRONOUNCEMENT : 03-01-2014 [ / O R D E R PER P.M. JAGTAP, A.M . : .. , THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF LD. CIT(A) 31, MUMBAI DATED 11-07-2012 AND THE SOLITA RY GROUND RAISED THEREIN BY THE ASSESSEE READS AS UNDER:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) ERRED IN UPHOLDING THE ERRONEOUS TOTAL INCOME OF RS.9,92,880/- INSTEAD OF THE CORRECT TOTAL INCOME OF RS.508,490 /- 2. THE ASSESSEE IN THE PRESENT CASE IS A PARTNERSHI P FIRM OF PRACTICING CHARTERED ACCOUNTANTS. THE RETURN OF INCOME FOR TH E YEAR UNDER CONSIDERATION WAS FILED BY IT ON 31-10-2007 DECLARI NG TOTAL INCOME OF RS. 9,92,880/-. IN THE ASSESSMENT COMPLETED U/S 143(3) OF THE INCOME TAX ACT, ITA 5763/M/12 2 1961 VIDE AN ORDER DATED 8-12-2009, THE TOTAL INCOM E DECLARED BY THE ASSESSEE IN THE RETURN WAS ACCEPTED BY THE A.O. AFT ER SCRUTINY. THEREAFTER, AN APPLICATION U/S 154 OF THE ACT WAS FILED BY THE ASS ESSEE SEEKING RECTIFICATION OF THE SAID ORDER ON THE GROUND THAT ITS TOTAL INCO ME CHARGEABLE TO TAX IS ONLY RS. 5,08,490/- AND NOT RS. 9,92,880/-. THE COPY OF THE REVISED COMPUTATION OF INCOME SHOWING TOTAL INCOME OF RS. 5,08,490/- WA S ALSO FILED BY THE ASSESSEE ALONG WITH THE SAID APPLICATION. IT WAS, HOWEVER, NOTICED BY THE A.O. ON PERUSAL OF THE ASSESSMENT RECORDS THAT THE ASSES SEE HAD FILED A LETTER DATED 09-11-2009 DURING THE COURSE OF ASSESSMENT PR OCEEDINGS ALONG WITH COMPUTATION OF TOTAL INCOME SHOWING TOTAL INCOME OF RS. 9,92,880/-. HE ALSO NOTED THAT THIS ISSUE NOW RAISED BY WAY OF RECTIFIC ATION APPLICATION WAS NEVER RAISED BY THE ASSESSEE DURING THE COURSE OF ASSESSM ENT PROCEEDINGS. HE, THEREFORE, HELD THAT THERE WAS NO MISTAKE IN THE OR DER PASSED BY HIM U/S 143(3) OF THE ACT VIDE ORDER DATED 8-12-2009 COMPUT ING TOTAL INCOME AT RS. 9,92,880/- AND REJECTED THE APPLICATION FILED BY TH E ASSESSEE U/S 154 OF THE ACT BY AN ORDER DATED 5-2-2010. 3. AGAINST THE ORDER PASSED BY THE A.O. REJECTING T HE ASSESSEES APPLICATION FOR RECTIFICATION U/S 154 OF THE ACT, A PPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) AND SINCE THERE WAS NO COMPLIANCE TO THE NOTICES ISSUED BY HIM FIXING THE APPEAL OF THE ASSE SSEE FOR HEARING FROM TIME TO TIME, THE LD. CIT(A) PROCEEDED TO DISPOSE OF THE APPEAL OF THE ASSESSEE EX- PARTE ON MERIT AFTER TAKING INTO CONSIDERATION THE MATERIAL AVAILABLE ON RECORD. IN THIS REGARD, HE NOTED THAT IT WAS EXPLAINED BY T HE ASSESSEE IN THE STATEMENT OF FACTS FILED BEFORE HIM THAT THERE WAS AN ERROR I N THE RETURN OF INCOME FILED DUE TO ANOMALY IN THE SOFTWARE USED TO GENERATE THE FILE REQUIRED FOR DIGITAL FILING OF RETURN. THE LD. CIT(A) FOUND THAT NO SUCH POINT, HOWEVER, WAS RAISED BY THE ASSESSEE BEFORE THE A.O. DURING THE COURSE O F ASSESSMENT PROCEEDINGS TILL ITS FINALIZATION. HE ALSO NOTED THAT THERE WA S ALSO NO REVISED RETURN FILED BY THE ASSESSEE AS PERMISSIBLE U/S 139(5) OF THE AC T. HE FOUND THAT THE ITA 5763/M/12 3 ASSESSEE, ON THE OTHER HAND, HAD FILED A LETTER DAT ED 12-9-2009 DURING THE COURSE OF ASSESSMENT PROCEEDINGS ALONG WITH COMPUTA TION OF INCOME SHOWING TOTAL INCOME OF RS. 9,92,880/-. HE, THEREFORE, HEL D THAT THERE WAS NO MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE A.O . U/S 143(3) OF THE ACT ASSESSING TOTAL INCOME OF RS. 9,92,880/- AND UPHELD THE ORDER OF THE A.O. REJECTING THE APPLICATION FILED BY THE ASSESSEE FOR RECTIFICATION OF THE ORDER U/S 154 OF THE ACT. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE LD. COUN SEL FOR THE ASSESSEE HAS MAINLY REITERATED BEFORE US THE SUBMISSIONS MADE BE FORE THE AUTHORITIES BELOW THAT THE MISTAKE IN THE RETURN OF INCOME FILE D BY THE ASSESSEE SHOWING TOTAL INCOME OF RS. 9,92,880/- HAD CREPT IN AS A RE SULT OF ANOMALY IN THE SOFTWARE WHICH WAS USED TO GENERATE THE SAID RETURN . HE SUBMITTED THAT THE DEDUCTION ALLOWABLE TO THE ASSESSEE ON ACCOUNT OF I NTEREST AND REMUNERATION PAID TO PARTNERS WAS NOT REFLECTED IN THE SAID RETU RN WHICH RESULTED IN SHOWING THE TOTAL INCOME OF THE ASSESSEE AT RS. 9,9 2,880/-. HE INVITED OUR ATTENTION TO THE COPIES OF THE RELEVANT INCOME TAX RETURNS OF THE PARTNERS OF THE ASSESSEE FIRM PLACED IN ITS PAPER BOOK TO SHOW THAT THE INTEREST AND REMUNERATION RECEIVED BY THEM FROM THE ASSESSEE FIR M WERE DULY OFFERED TO TAX. HE ALSO INVITED OUR ATTENTION TO THE COPY OF COMPUTATION OF INCOME OF THE ASSESSEE FIRM PLACED AT PAGE 7 OF THE PAPER BOOK TO SHOW THAT THE TOTAL INCOME OF THE ASSESSEE FIRM AFTER ALLOWING DEDUCTIO N ON ACCOUNT OF INTEREST AND REMUNERATION TO PARTNERS WAS ACTUALLY RS. 5,08, 490/-. WHEN HIS ATTENTION WAS INVITED BY THE BENCH TO THE LETTER DA TED 09-11-2009 FILED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDING S AND RELIED UPON BY THE AUTHORITIES BELOW TO REJECT THE APPLICATION FILED B Y THE ASSESSEE U/S 154 OF THE ACT, HE HAS FILED A COPY OF THE SAID LETTER ALONG W ITH COPY OF RETURN OF INCOME AND COMPUTATION OF INCOME. A PERUSAL OF THESE DOCUM ENTS SHOWS THAT IN THE RETURN OF INCOME AS WELL AS IN THE COMPUTATION INCO ME, THE TOTAL INCOME WAS ITA 5763/M/12 4 DECLARED BY THE ASSESSEE AT RS. 9,92,800/- AND ON T HE BASIS OF THESE DOCUMENTS FILED BY THE ASSEESSEE, ASSESSMENT WAS CO MPLETED BY THE A.O. U/S 143(3) OF THE ACT ON A TOTAL INCOME OF RS. 9,92,880 /-. MOREOVER, THE SAID ASSESSMENT WAS COMPLETED BY THE A.O. U/S 143(3) OF THE ACT ON SCRUTINY OF THE RETURN OF INCOME FILED BY THE ASSESSEE AFTER GI VING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND THIS MISTAKE WAS NEVER BR OUGHT TO THE NOTICE OF THE A.O. BY THE ASSESSEE DURING THE COURSE OF ASSESSMEN T PROCEEDINGS TILL ITS FINALIZATION. HAVING REGARD TO ALL THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT THERE WAS NO MISTAKE APPARENT FROM RECORD IN T HE ORDER OF THE A.O. PASSED U/S 143(3) OF THE ACT AND THE APPLICATION FI LED BY THE ASSESSEE SEEKING RECTIFICATION OF THE SAID ORDER WAS RIGHTLY REJECTE D BY THE A.O. IN THAT VIEW OF THE MATTER, WE UPHOLD THE IMPUGNED ORDER OF THE LD. CIT(A) CONFIRMING THE ACTION OF THE A.O. IN REJECTING THE APPLICATION FIL ED BY THE ASSESSEE U/S 154 OF THE ACT AND DISMISS THIS APPEAL FILED BY THE ASSESS EE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 03-01-2014 . ( / 0 03-01-2014 ( SD/- S D/- (B.R. MITTAL) (P.M. JAGTAP ) JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; 0 DATED 03-01-2014 .../ RK , SR. PS ' #%& '& / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #' / THE RESPONDENT. 3. 2 ( ) / THE CIT(A)31, MUMBAI. 4. 2 / CIT 20I,, MUMBAI 5. 5 #7 , ) 7 , / DR, ITAT, MUMBAID BENCH 6. : / GUARD FILE. / BY ORDER, 5 # //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI