Shri Rahul Das, Meerut V. CIT, Meerut

ITA 88/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 58848 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 14-03-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 06-01-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: O P SAPRA
• Section: 143(3); 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI T.S. KAPOOR ITA NO. 88/DEL/2012 ASSESSMENT YEAR: 2006-07 SHRI RAHUL DAS, VS. LEARNED COMMISSIONER OF I.T. , S/O SHRI S.K. DAS, MEERUT. PROP. M/S. DAS MOTORS, ABU LANE, MEERUT. (PAN: ABJPD4374N) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI OP SAPRA, ADV. RESPONDENT BY: SHRI PRADEEP KUMA R, CIT(DR) DATE OF HEARING : 14.03.2012 DATE OF PRONOUNCEMENT : 14.03.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED COMMISSIONER DATED 24.10.2011 PASSED UNDER SECTION 154 READ WITH SECTION 263 OF THE INCOME-TAX ACT, 1961. THE GRIEVANCE OF T HE ASSESSEE IS THAT LEARNED COMMISSIONER HAS ERRED IN NOT RECTIFYING HE R ORDER PASSED UNDER SECTION 263 OF THE INCOME-TAX ACT, 1961. 2. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS RUNNING A PROPRIETARYSHIP CONCERN, NAMELY, M/S. DAS MOTORS. A BU LANE, MEERUT. HE HAS FILED HIS RETURN OF INCOME FOR ASSESSMENT YEAR 2006-07 ON 30 TH OCTOBER, 2 2006 DECLARING TOTAL INCOME AT RS.3,08,225. AN ASSE SSMENT UNDER SEC. 143(3) OF THE ACT WAS FRAMED ON 3 RD OF APRIL, 2008. ASSESSING OFFICER DETERMINED THE TAXABLE INCOME OF THE ASSESSEE AT RS.4,13,033. LEARNED COMMISSIONER ON AN ANALYSIS OF THE RECORD FORMED AN OPINION THAT AS SESSEE IS HAVING 34.78% SHAREHOLDING IN DAS GARAGE PVT. LTD. HE HAD RECEIVE D ADVANCES OF RS.12,06,717. ASSESSING OFFICER FAILED TO INQUIRE A PPLICABILITY OF SECTION 2(22)(E) ON THIS AMOUNT. IN HIS OPINION, IT IS A DE EMED DIVIDEND AND IT OUGHT TO BE ASSESSED AS INCOME IN THE HANDS OF THE ASSESS EE. LEARNED COMMISSIONER IN THIS WAY, PASSED AN ORDER UNDER SEC . 263 OF THE INCOME-TAX ACT, 1961 ON 28.3.2011. 3. DISSATISFIED WITH THE ACTION OF THE LEARNED CIT, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE ITAT IN ITA NO.2346/DEL /2011. THE ITAT HAS DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DAT ED 12.8.2011. 4. THE ASSESSEE MOVED AN APPLICATION BEFORE THE LEA RNED CIT ON 5.4.2011 UNDER SECTION 154 OF THE ACT AND CONTENDED THAT M/S. DAS GARAGE PVT. LTD. HAD ADVANCED DIFFERENT AMOUNTS TO SHRI S. K. DAS, THE THEN PROPRIETOR OF M/S. DAS MOTORS WHO IS A SHAREHOLDER AND THE BENEFICIAL OWNER OF SHARES. THESE AMOUNTS WERE ADVANCED IN FINANCIAL YEARS 2001-02 TO 2004- 05. ACCORDING TO THE ASSESSEE, IF THESE AMOUNTS ARE DEDUCTED OUT OF THE 3 ACCUMULATED PROFITS OF RS.8,86,976 THEN THERE WAS N IL BALANCE AS ON 1.4.2005 FOR ACCUMULATED PROFITS AND NO ADDITION WOULD BE CA LLED UPON UNDER SEC. 2(22)(E) IN THE HANDS OF THE ASSESSEE IN FINANCIAL YEAR 2005-06 RELEVANT TO ASSESSMENT YEAR 2006-07. LEARNED COMMISSIONER REJEC TED THIS APPLICATION OF THE ASSESSEE ON THE GROUND THAT NEITHER IN THE ASSE SSMENT PROCEEDINGS NOR IN THE 263 PROCEEDINGS, SUCH AN ASPECT WAS BROUGHT TO THE NOTICE. LEARNED COMMISSIONER FURTHER OBSERVED THAT FROM RECORD, IT NOWHERE REVEALED THAT ASSESSEE OFFERED THE SAME FOR TAXATION AS DEEMED DI VIDEND. 5. SHRI OP SAPRA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN THE APPLICATION UNDER SEC. 154, THE ASSESSEE HAS PLACED ALL THE DETAILS ON RECORD. LEARNED COMMISSIONER OUGHT TO HAVE RECTIFIED THE OR DER. HE PLACED ON RECORD COPY OF THE ITATS ORDER PASSED IN ITA NO. 2 346/DEL/2011 WHEREBY ORDER OF THE LEARNED COMMISSIONER WAS UPHELD. ON TH E OTHER HAND, LEARNED DR RELIED UPON THE ORDER OF THE LEARNED COMMISSIONE R. 6. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORD CAREFULLY. THE POWERS OF RECTIFICATION UNDER SECTION 154 OF THE ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOU GHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A 4 MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY C ONCEIVEABLY BE TWO OPINIONS. WE HAVE PERUSED THE ORDER OF THE ITAT PAS SED ON THE APPEAL OF THE ASSESSEE ON 12.8.2011. IN PARAGRAPH 9, ITAT HAS REP RODUCED THE DETAILS OF ACCUMULATED PROFIT WHICH WAS PLACED ON RECORD BY TH E ASSESSEE. IN THIS CHART, ITAT HAS NOTICED THE AMOUNT OF ACCUMULATED PROFIT S TARTING FROM 31.3.2002 UP TO 31.3.2006. THE ASSESSEE NOWHERE RAISED SUCH P LEA EVEN DURING THE APPEAL. WE DO NOT FIND ANY MERIT IN THIS APPLICATIO N FOR TWO REASONS, FIRSTLY, NO SUCH ISSUE WAS AGITATED BY THE ASSESSEE BEFORE T HE LEARNED COMMISSIONER IN THE ORIGINAL PROCEEDINGS. SECONDLY, THE ORDER OF THE LEARNED COMMISSIONER HAS BEEN MERGED WITH THE ORDER OF THE ITAT AND LEARNED COMMISSIONER CANNOT RECTIFY HIS ORDER. THE ASSESSEE HAS NEVER RAISED SIMILAR PLEA EVEN IN THE APPELLATE PROCEEDINGS BEFORE THE I TAT. THERE IS NO APPARENT ERROR IN THE ORDER OF THE LEARNED COMMISSIONER AND, THEREFORE, LEARNED COMMISSIONER HAS RIGHTLY REJECTED THE APPLICATION O F THE ASSESSEE. WE DO NOT FIND ANY MERIT IN THIS APPEAL. IT IS DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 14.03.201 2 SD/- SD/- ( T.S. KAPOOR ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 14/03/2012 MOHAN LAL 5 COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR