Col(Retd) G.N. Bajpai, New Delhi V. CIT, New Delhi

ITA 894/DEL/2011

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4242 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-04-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 15-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K RAVI RAM CHANDRAN
• Assessee Lawyers: COL RETD G N BAJPAI
• Keywords: Salary income
• Section: 143(3); 80G; 12AA; 147; 54; 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI DELHI DELHI DELHI, BENCH , BENCH , BENCH , BENCH C CC C , , , , NEW DELHI NEW DELHI NEW DELHI NEW DELHI BEFORE SHRI C. L. SETHI, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUNTANT MEMBER ITA NO. 894/DEL/2011 (ASSESSMENT YEAR 2006-07) COL. (RETD.) G N BAJPAI, VS. CIT, DELHI-XIV, N-7C, SAKET, NEW DELHI NEW DELHI-110 017 (APPELLANT) (RESPONDENT) PAN AAAPB0556G APPELLANT BY: COL. (RETD.) G N BAJPAI, ASSESSEE RESPONDENT BY: SHRI K. RAVI RAM CHANDRAN, SR. DR ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT Y EAR 2006-07 ARISES OUT OF THE ORDER OF LD. CIT, DELHI XIV, NE W DELHI. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPROD UCED AS UNDER: 1) THE LD. CIT DELHI XIV, NEW DELHI VIDE ORDER U/S 154 DT. 23.11.2010 HAS ERRED IN NOT PROPERLY APPRECIATING T HE RATIO LAID DOWN BY THE SUPREME COURT IN ACIT VS. SAURASHT RA KUTCH STOCK EXCHANGE LTD. CIVIL APPEAL NO.1171 OF 2004, S EPTEMBER 15, 2008. 2) THE LD. CIT DELHI XIV HAS ERRED IN CONSIDERING THAT THE ERROR COMMITTED BY THE ASSESSEE IN THEIR COMPUTATIO N OF INCOME COULD BE CONCEIVABLY TWO OPINIONS. 3) THE LD. CIT DELHI XIV HAS ERRED IN NOT APPRECIA TING AND ACCEPTING THE MISTAKE IN COMPUTATION OF INCOME IN T HE STATEMENT OF INCOME WHICH DOES NOT DRAW ONE LONG PR OCESS OF REASONING IN ACCEPTING IT. 4) THE LD. CIT DELHI XIV HAS TOTALLY MISDIRECTED H IMSELF IN CORRECTLY APPRECIATING THE SAID JUDGEMENT OF THE S UPREME COURT OF INDIA WHICH IS RATHER TOTALLY IN FAVOUR O F THE ASSESSEE. I.T.A.NO. 894/DEL/2011 2 5) THE DELAY, IF ANY IN FILLING THE APPEAL MAY KIN DLY BE WAIVED. 6) ANY OTHER GROUND MAY KINDLY BE ALLOWED TO BE AD DED SUBSEQUENTLY. 2. THE ONLY ISSUE FOR CONSIDERATION RELATES TO REJE CTION OF RECTIFICATION APPLICATION FILED U/S 154 OF THE ACT. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT THE ASSESSEE FILED RE TURN OF INCOME ADMITTING INCOME OF ` 27,85,554/-, WHICH INCLUDED I NCOME FROM SALARY INCOME, HOUSE PROPERTY, SHORT TERM CAPITAL G AIN AND INCOME FROM OTHER SOURCES. THE ASSESSEE IN THE RETURN OF INCOME ADMITTED SHORT TERM CAPITAL GAIN OF ` 30,54,107/-. THE ASSE SSING OFFICER AFTER MAKING RECTIFICATION ON ACCOUNT OF ARITHMETIC ERROR ASSESSED THE INCOME AT ` 31,73,870/- WHICH INCLUDED SHORT TERM C APITAL GAIN OF ` 30,54,107/-. 3. THE ASSESSEE FILED REVISION PETITION U/S 264 OF THE ACT STATING THAT BY OVERSIGHT THE FEE OF ` 4,79,380/- PAID TO P N VIJAY FINANCIAL SERVICES PVT. LTD. WAS OMITTED TO BE DEDUCTED FROM SHORT TERM CAPITAL GAIN OF ` 30,54,107/-. THE SAID FEE WAS ST ATED TO HAVE BEEN PAID TO PORTFOLIO MANAGER. THEREFORE, IT WAS PLEAD ED THAT THE INCOME FROM SHORT TERM CAPITAL GAIN WAS TO BE ASSES SED AT ` 25,74,727/- (30,54,107 4,79,380). THE REVISION P ETITION FILED BY THE ASSESSEE WAS REJECTED BY CIT XIV VIDE ORDER DAT ED 15.03.2010. THEREAFTER, THE ASSESSEE MOVED RECTIFICATION APPLIC ATION U/S 154(1) REQUESTING THE COMMISSIONER TO AMEND THE ORDER U/S 264. THE RECTIFICATION APPLICATION FILED U/S 154 WAS REJECTE D BY CIT VIDE ORDER DATED 23.11.2010 ON THE GROUND THAT THERE WAS NO MI STAKE APPARENT FROM RECORD WHICH COULD BE RECTIFIED U/S 1 54 OF THE ACT. THE CIT FURTHER NOTED THAT THE ASSESSEE IN HIS CONT ENTION HAD STATED THAT HE HAD FAILED, THOUGH INADVERTENTLY, IN FILING THE CLAIM OF EXPENDITURE BEFORE THE ASSESSMENT ORDER WAS PASSED. THEREFORE, I.T.A.NO. 894/DEL/2011 3 THE MISTAKE WAS CLEARLY ONE WHICH WAS NOT APPARENT FROM RECORD IN TERMS OF SECTION 154 OF THE ACT. THE LD. COMMISSIO NER RELYING ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F ACIT VS SAURASHSTRA KUTCH STOCK EXCHANGE LTD., REJECTED THE APPLICATION FILED BY THE ASSESSEE. 4. AGGRIEVED BY THE ORDER OF CIT, THE ASSESSEE HAD PREFERRED APPEAL BEFORE THIS TRIBUNAL. 5. WE HAVE HEARD BOTH THE PARTIES. IN THIS CASE, T HE ASSESSEE IN THE RETURN OF INCOME HAD NOT CLAIMED ANY EXPENDITUR E ON ACCOUNT OF FEE PAID TO PORTFOLIO MANAGER IN COMPUTATION OF INC OME. THE ASSESSING OFFICER HAD ASSESSED THE SHORT TERM CAPIT AL GAIN OF ` 30,54,107/- AS ADMITTED IN THE RETURN OF INCOME. T HE REVISION PETITION FILED BY THE ASSESSEE HAS BEEN DISMISSED B Y CIT. UNDER SECTION 253, ANY ASSESSEE AGGRIEVED BY THE ORDER, M AY FILE THE APPEAL TO THE APPELLATE TRIBUNAL. CLAUSE (A) OF SE CTION 253(1) SPECIFIES THE APPEALS TO BE FILED AGAINST THE ORDER S OF CIT(A) PASSED U/S 154, 250, 271, 271A AND 272A. CLAUSE (B) AND ( BA) OF SECTION 253(1) SPECIFIES THE APPEAL ARISING FORM THE ORDERS OF THE ASSESSING OFFICER. CLAUSE (C) OF SECTION 253(1) SPECIFIES TH E APPEAL AGAINST THE ORDER PASSED BY COMMISSIONER OF INCOME TAX. UNDER CLAUSE (D) OF SECTION 253(1) OF THE ACT APPEALS ARE FILED AGAINST AN ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OR SECTION 147 IN PURSUANCE TO DIRECTIONS OF DISPUTE RESOLUTION PANEL (DRP) OR AN ORDER PASSED U/S 154 IN RESPECT OF SUCH ORDER. 6. UNDER SECTION 253(1) ANY ASSESSEE AGGRIEVED BY A NY ORDER MAY APPEAL TO THE APPELLATE TRIBUNAL AGAINST SUCH O RDER. CLAUSE (A) OF SECTION 253(1) READS AS UNDER: (C) AN ORDER PASSED BY A COMMISSIONER UNDER SECTI ON 12AA OR UNDER CLAUSE (VI) OR SUB-SECTION (5) OF SECTION 80G OR UNDER I.T.A.NO. 894/DEL/2011 4 SECTION 263 OR UNDER SECTION 271 OR UNDER SECTION 2 72A OR AN ORDER PASSED BY HIM UNDER SECTION 154 AMENDING HIS ORDER UNDER SECTION 263 OR AN ORDER PASSED BY A CHIEF COMMISSIONER OR A DIRECTOR GENERAL OR A DIRECTOR UN DER SECTION 272A. FROM A PLAIN READING OF CLAUSE (C) OF SECTION 253( 1), IT IS CLEAR THAT NO APPEAL AGAINST THE ORDER U/S 264 HAS BEEN P RESCRIBED TO BE FILED BEFORE THE TRIBUNAL. SINCE THE APPEAL AGAIN ST THE ORDER U/S264 OR U/S 154 AMENDING HIS ORDER U/S 264, IS NOT AUTHO RIZED BY SECTION 253 OF THE ACT, THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE. THEREFORE, THE APPEAL FILED BY THE ASSESSEE HAS TO BE DISMISSED. WE ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST APR., 2011. SD./- SD./- (C. L. SETHI) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 21 ST APR., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI