ASST CIT CIR 6(1), MUMBAI V. VIMALADEVI MOHATTA, MUMBAI

ITA 6158/MUM/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2721 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 21-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI B.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER I.T.A NO.6158/MUM/2013 (AY 2010-11) ACIT CIRCLE 6(1), R.NO. 506, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 VS. MRS. VIMALADEVI MOHATTA, 31, LOTUS COURT, J. TATA ROAD, CHURCHGATE, MUMBAI-400020 PAN: AAHPM4463C (APPELLANT) (RESPONDENT) REVENUE BY : SHRI PRAMOD NIKALJ E (DR) ASSESSEE BY : SHRI MAHESH SABOO DATE OF HEARING : 03.11.2015 DATE OF PRONOUNCEMENT : 06.11.2015 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT APPEAL FILED BY THE REVENUE AGAINST TH E ORDER DATED 05.08.2013 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS)- 14, MUMBAI (CIT(A) FOR SHORT) IN RESPECT OF ASSESSMENT YEAR S 2010-11 ON THE FOLLOWING GROUNDS OF APPEAL: 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD CIT(A) ERRED IN DIRECTING THE AO TO VERIFY THE P ETITION U/S 154 DATED 02.08.2011 FILED BY THE ASSESSEE 'AND. ALLOW THE RELIEF ACCORDINGLY WHEN AN ORDER REJECTING THE PETITION/S 154 HAS ALREADY BEEN PASSED, SUCH DIRECTION OF THE CIT(A) AMOUNTS T O REVISITING THE ORDER ALREADY PASSED BY THE AO OR AT BEST WOULD AMO UNT TO SETTING ASIDE THE ISSUE TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION OF THE ASSESSING OFFICER, WHICH POWER IS NOT VESTED WITH T HE CIT(A) AS PER THE ACT. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE IMPUGNED ORDER OF THE LD CIT(A) IS A LEGALLY VALID ORDER AS THE CIT(A) HAS ISSUED A DIRECTION IN EXERCISE OF A POWE R WHICH IS NOT VESTED WITH HIM UNDER THE INCOME TAX ACT 1961. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE LD CIT (A) ON THE ABOVE GROUNDS BE SET ASIDE TO THE FILE OF THE AO OR CONFI RM THE ORDER OF THE AO. 2 ITA NO.6158/MUM/2013- MRS. VIMALADEVI MOHATTA. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE F ILED RETURN OF INCOME ON 31.07.2010 THROUGH CENTRAL PROCESSING CEN TRE (CPC) IN RESPECT OF ASSESSMENT YEAR(AY)-2010-11, DECLARIN G TOTAL INCOME OF RS. 3,78,17,060/-, WHICH INCLUDED A LTGS OF RS. 3,61,50,000/-,AND STGS OF RS. 1,95,705/-. THE RETUR N OF INCOME WAS PROCESSED BY CPC VIDE ITS ORDER DATED 02.08.201 1 ASSESSING THE TOTAL INCOME AT RS.3,80,26,790/-. 3. THE ASSESSEE MOVED AN APPLICATION U/S 154 OF THE AC T BEFORE CPC, POINTING OUT THAT WHILE CALCULATING THE TAX AT SPECIAL RATE, TAX PAYABLE WAS SHOWN AT RS. 72,59,356/- INSTEAD OF RS. 36,44,56/-. THE CPC REJECTED THE PETITION DATED 17. 11.2011 AGAINST WHICH AN APPEAL WAS FILED BEFORE THE CIT(A) , THE CIT(A) WHILE DISPOSING OF THE APPEAL OF THE ASSESSE E AND IMPUGNED ORDER DATED 05.08.2013 HELD AS UNDER: I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, THE SUBMISSIONS OF THE APPELLANT, ORDER U/S. 154 OF THE CPC. PRIMA FACIE THE CONTENTION OF THE APPELLANT IS FOUN D TO BE IN ORDER. THE A.O. IS DIRECTED TO VERIFY THE AFORESAID MENTIONED SUBMISSIONS OF THE APPELLANT AND GIVE RELIEF ACCORD INGLY. FOR STATISTICAL PURPOSE, GROUND IS TREATED TO BE ALLOWE D. 4. AGGRIEVED, BY THE ORDER THE REVENUE HAS FILED THIS APPEAL BEFORE US. THE LD. DR FOR REVENUE HAS ARGUED BEFORE US THAT U/S 251(1 A) OF THE ACT, THE LD. CIT(A) HAS ONLY POWER EITHER TO CONFIRM, REDUCE, EN HANCE OR ANNUL THE ASSESSMENT AND HAS NO POWER TO REMAND THE CASE AND AS SUCH THE ORDER IS ILLEGAL. 5. THE LD. AR OF THE ASSESSEE HAS ARGUED BEFORE US THA T THE ASSESSEE HAS AGAIN MOVED AN APPLICATION U/S 154 OF THE ACT FOR RECTIFI CATION OF THE ORDER AND THE SAME HAS BEEN RECTIFIED, VIDE ORDER DATED 05.06 .2012 AND THAT THE ASSESSEE LEFT WITH NO GRIEVANCE AND, THUS THE APPEA L OF THE REVENUE HAS BECOME INFRUCTUOUS. THE AR OF THE ASSESSEE HAS PLAC ED ON RECORD THE COPY OF RECTIFICATION ORDER DATED 05.06.2012. 3 ITA NO.6158/MUM/2013- MRS. VIMALADEVI MOHATTA. 6. THE LD. AR OF THE REVENUE DID NOT CONTROVERT THIS F ACTUAL POSITION. SINCE THE MISTAKE HAS BEEN RECTIFIED IN PURSUANCE OF ANOTHER PETITION OF THE ASSESSEE, THE DIRECTION GIVEN BY THE CIT(A) HAS BECOME INFRUC TUOUSAND DOES NOT REQUIRE ANY ADJUDICATION. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/1 1/ 2015 SD/- SD/- (B. R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED : 06.11.2015 SK PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT- CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE //TRUE COPY// BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI