M/S.GEETA GARDEN CONSTULTANTS PRIVATE LIMITED, MUMBAI V. INCOME TAX OFFICER 9(3)(3), MUMBAI

ITA 6700/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8326 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VINOD KUMAR
• Keywords: Rectification of order; Earning of tax free income; Period of limitation; Revised return
• Section: 115JB; 139(5); 143(1); 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G, MUMBAI BEFORE SHRI PAWAN SINGH (JM) & SHRI S. RIFAUR RAHM AN (A.M.) ITA NO. 6700/MUM/2018(ASSESSMENT YEAR : 2010-11) M/S GEETA GARDEN CONSULTANTS PVT LTD, TENAMENT NO.19/002, GROUND FLOOR, LINK ROAD, MSB COLONY, CTS NO.1, OSHIWARA, JOGESHWARI (W), MUMBAI 400 101 PAN :AAACG1755D VS ITO-9(3)(3), MUMBAI APPELLANT RESPONDEDNT APPELLANT BY SHRI RUSHABH MEHTA AR RESPONDENT BY SHRI V. VINODKUMAR SR DR DATE OF HEARING 15-01-2020 DATE OF PRONOUNCEMENT 15-01-2020 O R D E R PER PAWAN SINGH, JM : 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) [ LD.CIT(A)]- 16, MUMBAI DATED 28-09-2018, AFFIRMING THE ORDER OF ASSESSING OFFICER PASSED UNDER SECTION (U/S) 154 OF INCOME TAX ACT (ACT) FOR ASSES SMENT YEAR 2010-11. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- 1 (A) THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) ERRED IN FACTS AND LAW IN CONFIRMING THE ACTION OF THE ID. ASSESSI NG OFFICER IN REJECTING THE RECTIFICATION PETITION FILED BY THE ASSESSEE U/S. 1 54 OF THE ACT WITHOUT APPRECIATING THAT THERE WAS A MISTAKE APPARENT FROM RECORD IN THE RETURN OF INCOME FILED BY THE ASSESSEE AND CONSEQUENTLY IN TH E INTIMATION PROCESSED U/S. 143(1) OF THE ACT. ITA 6700/MUM/2018 2 (B)THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN FACTS AND LAW IN NOT RECTIFYING THE MISTAKE APPARENT FROM RECORD BY ALLEGEDLY TREATING THE RECTIFICATION SOUGHT AS AN ADDITIONAL CLAIM AND THE REBY NOT RE-COMPUTING THE BOOK PROFITS U/S. 115JB OF THE ACT AND RESTATING IT AT RS.(-) 24,648A. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RECTIFICATION APPLICATION BEFORE THE AO ON 04-05-2016 STATING THA T THE TOTAL INCOME DECLARED BY THE ASSESSEE COMPRISED OF PROFIT ON SAL E OF AGRICULTURAL LAND. SINCE THE PROFIT ON SALE OF AGRICULTURAL LAN D IS EXEMPT, IT WAS EXCLUDED FROM THE TOTAL INCOME WHILE COMPUTING THE TAX LIABILITY AS PER NORMAL PROVISIONS OF THE INCOME-TAX ACT, 1961 AND T HAT INADVERTENTLY, WHILE COMPUTING THE TAX LIABILITY U/S 115JB, THE SA ME WAS NOT EXCLUDED AND ACCORDINGLY, ADVANCE-TAX OF RS.4,85,000/- AND S ELF ASSESSMENT TAX OF RS.29,220/- WAS PAID ON THE VERY SAME EXEMPT INC OME. THE ASSESSEE, THEREFORE, REQUESTED FOR REFUND OF THE PR EPAID TAXES ALONG WITH INTEREST U/S 244A. 3. THE ASSESSING OFFICER REJECTED THE RECTIFICATION AP PLICATION ON THE GROUND THAT THE ASSESSEE ITSELF SHOWN BOOK PROFIT O F RS. 31,92,935/- U/S 115JB AND PAID TAX, RETURN WAS PROCESSED U/S 143(1) AND AS PER SECTION 143(1), IT WAS MANDATORY FOR THE AO TO ACCEPT THE R ETURN OF INCOME ON THE INCOME RETURNED BY THE ASSESSEE. THE ONLY REMED Y WITH THE ITA 6700/MUM/2018 3 ASSESSEE WAS TO FILE REVISE RETURN U/S 13(5), WHICH THE ASSESSEE FAILED TO DO WITHIN PRESCRIBED PERIOD OF TIME LIMIT. 4. ON APPEAL BEFORE LD. CIT(A) THE ACTION OF AO WAS CO NFIRM. THE LD CIT(A) FURTHER CONCLUDED THAT RECTIFICATION COULD BE SEEK, ONLY BY FILING A REVISED RETURN U/S 139(5) OF THE ACT. AND THAT THERE WAS NO MISTAKE APPARENT ON RECORD, AS THE RETURN OF INCOME OF THE ASSESSEE WAS ACCEPTED. FURTHER AGGRIEVED, THE ASSESSEE HAS FILE D THIS APPEAL BEFORE THE TRIBUNAL. 5. WE HAVE CONSIDERED THE ARGUMENTS OF THE LD.AR FOR T HE ASSESSEE AND LD. DR OF THE REVENUE AND PERUSED THE MATERIAL AVAI LABLE ON RECORD. THE LD. AR FOR THE ASSESSEE SUBMITS THAT WHILE FIL ING RETURN OF INCOME THE ASSESSEE HAS DULY MENTIONED THE PROFIT ON SALE OF ASSET. THE SAID AMOUNT WAS REDUCED FROM COMPUTATION OF BUSINESS INC OME IN SCHEDULE BP, AS ANY OTHER EXEMPT INCOME. THE EXEMPT INCOME I S DULY REFLECTED IN RAW NO. 6 OF SCHEDULE EI OF INCOME TAX RETURN FO RM. THE AMOUNT OF GAIN WAS EARNED ON SALE OF AGRICULTURE LAND HELD BY THE ASSESSEE. HOWEVER THE SAME AMOUNT INADVERTENTLY REMAINED TO B E REDUCED FROM COMPUTATION OF MINIMUM ALTERNATIVE TAX (MAT). THE I NCOME EARNED ON DALE OF AGRICULTURE ASSET IS EXEMPT. THE SAID MI STAKE WAS NOTICED MUCH LATER AND ACCORDINGLY THE ASSESSEE MADE AN APP LICATION FOR ITA 6700/MUM/2018 4 RECTIFICATION OF MISTAKE, BEFORE ASSESSING OFFICER. THE ASSESSING OFFICER REJECTED THE APPLICATION FOR RECTIFICATION OF MISTA KE ON THE GROUND THAT THE REMEDY AVAILABLE TO THE ASSESSEE IS TO FILE REV ISED RETURN UNDER SECTION 139(5) WITH IN PERIOD OF LIMITATION. THE LD. AR FOR THE ASSESSEE PRAYED THAT THE THERE WAS MISTAKE APPARENT WHILE PASSING THE ORDER UNDER SECTION 143(1) AND THE APPLICATION OF T HE ASSESSEE WAS WRONGLY REJECTED. 6. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF THE LOWER AUTHORITY. THE LD. DR FOR THE REVENUE SUB MITS THAT THE REMEDY AVAILABLE TO THE ASSESSEE WAS TO FILE REVISE D RETURN UNDER SECTION 139(5) WITH IN PERIOD OF LIMITATION AND TO SEEK THE ALLEGED RELIEF OF EXEMPTION OF CAPITAL GAIN. 7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIES A ND HAVE GONE THROUGH THE ORDERS OF THE LOWER AUTHORITIES. THE SH ORT POINT FOR OUR CONSIDERATION IS THAT ONCE THE ASSESSEE DUE TO MIST AKE EITHER BY INADVERTENT OR ERRONEOUSLY DECLARED A BOOK PROFIT, WHICH IS NOT IN ACCORDANCE WITH LAW CAN IT BE COLLECTED FROM THE AS SESSEE. IN OUR CONSIDERED VIEW THE ACQUIESCENCE CANNOT TAKE AWAY FROM A PARTY, THE RELIEF, WHICH HE IS ENTITLED TO WHERE THE TAX IS LE VIED OR COLLECTED WITHOUT AUTHORITY OF LAW AS HELD BY HONBLE BOMBAY HIGH COU RT IN NIRMALA L MEHTA [269 ITR 1 (BOM)] AND BALMUKAND ACHARYA [310 ITR 310 ITA 6700/MUM/2018 5 (BOM)]. THEREFORE, CONSIDERING THE RATIO OF DECISIO N OF HONBLE JURISDICTIONAL HIGH COURT WE RESTORE THE ISSUE BACK TO THE FILE OF ASSESSING OFFICER, WITH THE DIRECTION TO EXAMINE THE FACTS AN D DECIDE THE ISSUE AFRESH AND PASS THE ORDER IN ACCORDANCE WITH LAW. THE ASSE SSEE IS ALSO DIRECTED TO FILE ALL NECESSARY INFORMATION AND EVIDENCE IN SUPP ORT OF HIS CLAIM. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 9. ORDER PRONOUNCED IN THE OPEN COURT ON 15-01-2020. SD/- SD/- (S. RIFAUR RAHMAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 15 TH JANUARY, 2020 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI