THE ACIT, Circle-8,, Ahmedabad V. WINNERS BUSINESS LINK PVT.LTD., Ahmedabad

ITA 713/AHD/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 50606 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 05-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 04-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Section: 143(3); 154

Judgement Text

- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI D.K. TYAGI, JM AND R. C. SHARMA, A.M . ASSTT. CIT, CIR-8, AHMEDABAD. WINNERS BUSINESS LINK PRIVATE LTD., JEEVAN KAMAL, ABOVE, CANARA BANK, NR. NAVRANGPURA, AHMEDABAD. PAN AAACW1747P APPELLANT VS. RESPONDENT APPELLANT BY :- SHRI S. K. MEENA, SR.DR RESPONDENT BY:- NONE O R D E R DATE OF HEARING 05-08-2011 DATE OF PRONOUNCEMENT -16/9/2011. PER D.K. TYAGI, JUDICIAL MEMBER . THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DATED 05.12.2008 FOR THE ASST. YEAR 2003-04 IN THE MATTER OF ORDER PASSED U/S 154 OF THE INCOME-TAX ACT, 1961. 2. NOBODY APPEARED ON BEHALF OF THE ASSESSEE INSPIT E OF GIVING THE OPPORTUNITY. THE BENCH, THEREFORE, DECIDED TO DISPO SE OF THE APPEAL AFTER CONSIDERING THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS CONTENTION OF THE LD. SENIOR D.R. ITA NO.713/AHD/2009 ASST. YEAR 2003-04 ITA NO.713/AHD/2009 ASST. YEAR 2003-04 2 3. FROM THE RECORD, WE FOUND THAT IN THIS CASE, ORD ER U/S 143(3) R.W.S. 263 OF THE ACT WAS PASSED ON 28.12.2007 DETERMINING TOTAL INCOME AT RS.3,40,46,130/-. THE AO NOTICED THAT THERE WAS A M ISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 154/155 ON 7.8 .2008 TO RECTIFY THE ORDER. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE SUBMITTED THAT THERE WAS NO MISTAKE IN GRANTING THE SAID REFUND. HOWEVER, TH E AO DID NOT ACCEPT THE EXPLANATION OF THE ASSESSEE AND OBSERVED THAT T HE CREDIT OF RS.1,60,74,806/- WAS TO BE WITHDRAWN, AS THE CREDIT FOR R.O. ADJUSTMENT OF ASSESSMENT YEAR 1999-2000 WAS ALREADY GIVEN IN T HE ORDER U/S 250 DATED 5.4.2006 WHICH RESULTED IN REFUND OF THE SAID AMOUNT AND THE SAME WAS ADJUSTED AGAINST THE DEMAND FOR ASSESSMENT YEAR 2004-05. THE AO, THEREFORE, VIDE ORDER U/S 154 WITHDRAWN THE CREDIT OF RS.1,60,74,806/- WHICH HAVE ALREADY BEEN ALLOWED SEPARATELY VIDE ORD ER U/S 250 DATED 5.4.2006. 4. BY THE IMPUGNED ORDER, THE LD. CIT(A) ALLOWED AS SESSEES APPEAL AND DIRECTED THE AO TO ADOPT THE TOTAL INCOME AS DE TERMINED BY THE LD. CIT(A) AND TO CALCULATE THE TAX LIABILITY AND ISSUE THE REFUND. FOLLOWING WAS THE OBSERVATION AND CONCLUSION OF THE CIT(A):- 2.2 DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E AR OF THE APPELLANT FILED A COPY OF LETTER DATED 13.8.2008 SU BMITTED BEFORE THE AO IN REPLY TO NOTICE U/S 154 OF THE ACT, WHERE BY IT WAS STATED THAT THE ASSESSMENT FOR ASST. YEAR 2003-04 WAS FINA LIZED BY THE AO ON 30.12.2005 DETERMINING THE INCOME AT RS.3,40, 46,130/- AND IN APPEAL, THE CIT(A) ALLOWED THE APPEAL VIDE ORDER DATED 24.3.06 WHEREBY ADDITION OF RS.3,53,84,797/- WAS DELETED AN D THE INCOME WAS DETERMINED AT LOSS. THEREAFTER, THE CIT VIDE OR DER U/S 263 OF THE ACT DATED 24.11.2006 SET ASIDE THE ASSESSMENT O RDER. THE AO PASSED A FRESH ORDER U/S 143(3) R.W.S. 263 ON 28.12 .2007, WHEREBY HE HAD TAKEN THE TOTAL INCOME AT RS.3,40,46,130/- A S PER THE ORIGINAL ASSESSMENT. THE APPELLANT DID NOT FILE ANY APPEAL A GAINST THE ORDER U/S 143(3) R.W.S. 263 AS THE DEMAND WAS NIL. AS THE RE WAS NO ITA NO.713/AHD/2009 ASST. YEAR 2003-04 3 DISPUTE, THE INCOME DETERMINED BY THE CIT(A) WHICH WAS A LOSS, BECAME FINAL AND THERE WAS NO DEMAND. THE APPELLANT , THEREFORE, CONTENDED BEFORE THE AO THAT THERE WAS NO MISTAKE I N GRANTING REFUND AND REQUESTED TO ISSUE THE SAID REFUND. 2.3 I HAVE CONSIDERED THE FACTS OF THE CASE AND THE SUBMISSIONS AS ADVANCED BY THE AR OF THE APPELLANT. IN FACT, IN THE ORDER PASSED U/S 143(3) R.W.S. 263 OF THE INCOME-TAX ACT, 1961, THE TOTAL INCOME WOULD HAVE BEEN TAKEN BY THE AO AT LOSS, BECAUSE TH E CIT(A) ALLOWED THE APPEAL FILED BY THE ASSESSEE AND THE TO TAL INCOME WAS DETERMINED AT LOSS. CONSIDERING THE FACTS THAT THER E WAS NO DEMAND TO BE PAID AS PER THE ORDER U/S 143(3) R.W.S. 263 O F THE ACT, THE AO SHOULD HAVE TAKEN THE TOTAL INCOME AT LOSS, AS HAS BEEN DETERMINED BY THE LD. CIT(A) AND WHICH HAS BECOME THE FINAL FI GURE. I, THEREFORE, DIRECT THE AO TO ADOPT THE TOTAL INCOME AS HAS BEEN DETERMINED BY THE LD. CIT(A) WHILE PASSING THE RECT IFICATION ORDER AND CALCULATE THE TAX LIABILITY AND ISSUE THE REFUN D, IF ANY. 5. WE HAD GONE THROUGH THE ORDER OF THE LOWER AUTHO RITIES AND CONSIDERED THE CONTENTION OF THE LD. SENIOR D.R. FR OM THE RECORD, WE FOUND THAT THE CREDIT FOR R.O. ADJUSTMENT FOR ASSES SMENT YEAR 1999-2000 WAS GIVEN TO THE ASSESSEE VIDE ORDER U/S 250 DATED 5.4.2006, WHICH RESULTED IN REFUND OF SAID AMOUNT AND THE SAME WAS ADJUSTED AGAINST THE DEMAND FOR ASSESSMENT YEAR 2004-05. HOWEVER, WHILE PASSING THE ORDER U/S 143(3) READ WITH SECTION 263 DATED 28.12.2007, AGAIN CREDIT OF RS.1,60,74,806/- WAS GIVEN TO THE ASSESSEE. THUS, A GAIN GRANTING OF CREDIT OF RS.1,60,74,806/- AMOUNTS TO MISTAKE APPARENT FRO M RECORD, IN SO FAR AS THE SAME HAVE ALREADY BEEN ALLOWED VIDE ORDER U/S 2 50 DATED 5.4.2006. ACCORDINGLY, THE AO WAS JUSTIFIED IN RECTIFYING THE MISTAKE APPARENT FROM RECORD. HOWEVER, CIT(A) HAS CONSIDERED THE APPELLAT E ORDER PASSED BY THE LD. CIT(A) AGAINST THE ORDER OF AO U/S 143(3). ONCE THE ORDER PASSED BY THE AO U/S 143(3) HAS BEEN SET ASIDE U/S 263 AND CONSEQUENTLY ORDER HAS BEEN PASSED BY THE AO U/S 143(3)/263, THE SAME IS REQUIRED TO BE CONSIDERED. MERELY ON THE PLEA THAT THE LD. CIT(A) ALLOWED THE APPEAL ITA NO.713/AHD/2009 ASST. YEAR 2003-04 4 FILED AGAINST ORDER PASSED U/S 143(3) WILL NOT COME IN THE WAY WHILE CONSIDERING THE MISTAKE OCCURRED IN THE ORDER OF TH E AO PASSED U/S 143(3)/263. IT IS ALSO PERTINENT TO MENTION HERE TH AT NO WHERE THE CIT(A) IN THE IMPUGNED ORDER HAS GIVEN ANY FINDING THAT RE VENUE HAS NOT FILED ANY APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF CIT(A) DATED 24.3.2006, WHEREIN ADDITION OF RS.3,53,84,797/- WAS DELETED AND INCOME WAS DETERMINED AT A LOSS. 6. IN VIEW OF THE ABOVE, WE DO NOT FIND ANY MERIT I N THE ORDER OF THE LD. CIT(A) DIRECTING THE AO TO ADOPT THE TOTAL INCO ME AS HAS BEEN DETERMINED BY CIT(A). 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED. ORDER WAS PRONOUNCED IN OPEN COURT ON 16/9/2011. SD/- SD/- (R. C. SHARMA) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD, DATED : 16/9/2011. MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD ITA NO.713/AHD/2009 ASST. YEAR 2003-04 5 1.DATE OF DICTATION 23/8/11. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER /8/11. /OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..