ITO, Ward 1(1), Nashik V. Shri Prakash Nivruti Burhade, Nashik

ITA 976/PUN/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 85183 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 30-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P S NAIK
• Keywords: Business income; Revised return
• Section: 143(3); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.976/PN/2013 (ASSESSMENT YEAR : 2009-10) INCOME TAX OFFICER, WARD 1(1), NASHIK. . APPELLANT VS. SHRI PRAKASH NIVRUTI BURHADE, C 11 & 12, 1 ST FLOOR, CITY PLAZA, OLD AGRA ROAD, NEAR KALIKA MANDIR, NASHIK. PAN : AARPB2087R . RESPONDENT DEPARTMENT BY : SHRI P. S. NAIK ASSESSEE BY : SHRI NIKHIL PATHAK DATE OF HEARING : 30-10-2014 DATE OF PRONOUNCEMENT : 26-11-2014 ORDER PER G. S. PANNU, AM THE CAPTIONED APPEAL BY THE REVENUE IS DIRECTED AGA INST AN ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, NASHIK DATED 26.02.2013 WHICH, IN TURN, HAS ARISEN FROM AN ORDER DATED 30.12.2011 PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT) PERTAINING TO THE ASSESSMENT YEAR 2009-10. 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD.CIT(A)-I, NASHIK ERRED IN DIRECTING THE AO TO ACCEPT THE ACTU AL PROFIT WORKED OUT BY THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS AT RS.2, 51,611/- AS AGAINST SHOWN IN HIS RETURN FILED BY THE ASSESSEE AT RS.13. 43.611/- RELYING UPON CIT(A)S ORDER FOR A.Y. 2007-08 & 2008-09 AGAINST WH ICH APPEAL HAS BEEN FILED BY THE DEPARTMENT BEFORE HONBLE ITAT. 2. THE LD.CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER (INCOME TAX OFFICER, WARD- 1, NASHIK) U/S 143(3) OF THE INCOME TAX ACT, 1961 AS IT IS A SETTLED LAW AS HELD BY THE HONBLE SUPRE ME COURT IN THE CASE OF GOETAZ INDIA LTD. THAT, RELIEF TO THE ASSESSEE CAN BE ALLOWED ONLY AS PER REVISED RETURN OF INCOME FILED AND NO RELIEF CAN BE GRANTED ON THE BASIS OF ITA NO.976/PN/2013 CONTENTIONS IN WRITTEN SUBMISSION MADE BY THE ASSES SEE. THE HONBLE APEX COURT IN THE ABOVE MENTIONED DECISION HAS LAID DOWN THAT THE AO HAS NO POWER TO ALLOW ANY DEDUCTION OR RELIEF OTHER THAN T HAT CLAIMED IN THE RETURN OF INCOME. 3. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. CIT(A) BE VACATED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO ADD, AMEND AND ALT ER ANY GROUND(S) OF APPEAL. 3. A BRIEF BACKGROUND OF THE DISPUTE IS THAT ASSESS EE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF BUILDERS AND LAND DEVELO PERS. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION I.E. 2009-10 ASSESSEE FILE D A RETURN OF INCOME DECLARING TOTAL INCOME OF RS.4,34,610/-. THE ASSES SING OFFICER NOTED THAT RETURN OF INCOME FILED BY THE ASSESSEE WAS, INTER-A LIA, ACCOMPANIED BY A PROFIT & LOSS ACCOUNT WHEREIN NET PROFIT WAS SHOWN AT RS.1 3,94,611/-. IN THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE SUBMITTED BEFOR E THE ASSESSING OFFICER THAT THE NET PROFIT DECLARED IN THE PROFIT & LOSS A CCOUNT WAS LIABLE TO BE RE- WORKED ON THE BASIS OF THE INCOME COMPUTED FOR THE IMMEDIATELY TWO PRECEDING ASSESSMENT YEARS OF 2007-08 AND 2008-09 A ND ACCORDINGLY THE NET PROFIT FOR THE YEAR WAS TO BE COMPUTED AT RS.2,59,6 11/-. 4. THE ASSESSEE EXPLAINED BEFORE THE ASSESSING OFFI CER THAT WHILE ASSESSING INCOME FOR THE ASSESSMENT YEARS 2007-08 A ND 2008-09 CERTAIN ADJUSTMENTS WERE MADE AND IF THE SAME IMPACT WAS CO NSIDERED IN THE IMPUGNED ASSESSMENT YEAR THE NET PROFIT WAS LIABLE TO BE DETERMINED AT RS.2,59,611/-. IT WAS POINTED OUT THAT WHILE ASSES SING THE INCOME FOR ASSESSMENT YEARS 2007-08 AND 2008-09, THE THEN ASSE SSING AUTHORITY HAD DISALLOWED THE EXPENDITURE CLAIMED BY THE ASSESSEE ON ACCOUNT OF ADVANCES FOR PURCHASE OF FLATS/PLOTS DEBITED IN THE PROFIT & LOSS ACCOUNT. IN OTHER WORDS, THE ASSESSING AUTHORITY FOR ASSESSMENT YEARS 2007-0 8 AND 2008-09 DID NOT CONSIDER IT APPROPRIATE THAT ADVANCES PAID FOR PURC HASE OF PLOTS/LANDS COULD BE ALLOWED AS AN EXPENDITURE. THE ASSESSEE ACCEPTED T HE AFORESAID STAND OF THE ASSESSING AUTHORITY AND AS A COROLLARY ASSESSEE CLA IMED THAT THE ADVANCES ITA NO.976/PN/2013 RECEIVED FOR PROPOSED SALE OF PLOTS/FLATS WHICH HAV E BEEN CREDITED IN THE PROFIT & LOSS ACCOUNT SHOULD ALSO NOT BE CONSIDERED AS INC OME OF THE ASSESSEE. THE LATTER CONTENTION OF THE ASSESSEE WAS ACCEPTED BY THE CIT(A) IN THE APPELLATE PROCEEDINGS FOR ASSESSMENT YEARS 2007-08 AND 2008-09. THEREFORE, AFTER THE ORDER OF THE CIT(A) FOR ASSESS MENT YEARS 2007-08 AND 2008-09, THE POSITION WHICH RESULTED WAS THAT NEITH ER THE ADVANCES FOR PURCHASE OF FLATS/PLOTS DEBITED IN THE PROFIT & LOS S ACCOUNT WERE CONSIDERED AN ALLOWABLE EXPENDITURE AND NOR THE ADVANCES RECEI VED FOR PROPOSED SALE OF PLOT/FLATS CREDITED IN THE PROFIT & LOSS ACCOUNT WE RE TO BE CONSIDERED AS INCOME. BASED ON THE AFORESAID POSITION, THE ASSES SEE ASSERTED BEFORE THE ASSESSING OFFICER THAT THE PROFIT & LOSS ACCOUNT FO R THE INSTANT YEAR FILED ALONG WITH RETURN OF INCOME WAS REQUIRED TO BE RE-WORKED HAVING REGARD TO THE AFORESAID. 5. THE ASSESSING OFFICER DID NOT DISPUTE THE FACTUA L MATRIX BROUGHT OUT BY THE ASSESSEE, WHICH WAS BASED ON THE PRECEDING ASSE SSMENT YEARS OF 2007-08 AND 2008-09. HOWEVER, THE ASSESSING OFFICE R HELD THAT FOLLOWING THE JUDGEMENT OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT, 284 ITR 323 (SC), ASSESSEE CAN AVAIL THE SAID BENEFIT ONLY BY WAY OF FILING A REVISED RETURN OF INCOME AND NOT OTHERWISE . ACCORDINGLY, THE INCOME WAS ASSESSED AT THE REPORTED AMOUNT OF RS.4,34,610/ -. 6. ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A), WHO HAS SINCE ALLOWED THE PLEA OF THE ASSESSEE. ACCORDING TO THE CIT(A), THE CONTENTION OF THE ASSESSEE WAS SUPPORTED BY THE DECISION OF THE C IT(A) FOR THE EARLIER ASSESSMENT YEARS 2007-08 AND 2008-09. THE CIT(A) A LSO NOTED THAT THE RE- WORKING OF NET PROFIT OF CURRENT YEAR OF RS.2,59,61 1/- AS AGAINST THE RS.13,94,611/- MADE IN THE PROFIT & LOSS ACCOUNT AN NEXED TO THE RETURN OF INCOME WAS ALSO APPROPRIATE AND THAT SUCH RECONCILI ATION WAS ALSO NOT ITA NO.976/PN/2013 DISPUTED BY THE ASSESSING OFFICER. THE CIT(A) DID NOT FIND ANY WEIGHT IN THE STAND OF THE ASSESSING OFFICER BASED ON THE DECISIO N OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA). ACCORDING TO THE CIT(A), THE ASSESSING OFFICER WAS TO ASSESS CORRECT INCOME OF T HE ASSESSEE AND THAT THE SAME INCOME COULD NOT BE ASSESS TWICE I.E. ONCE IN THE EARLIER YEARS AND AGAIN IN THE CURRENT YEAR ALSO. IN COMING TO SUCH CONCLUSION, THE CIT(A) HAS RELIED ON VARIOUS DECISIONS AS NOTED BY HIM IN PARA 9 OF HIS ORDER. AGAINST SUCH A DECISION OF THE CIT(A), REVENUE IS IN APPEAL BEFORE US. 7. IN THE ABOVE BACKGROUND, IT WAS A COMMON POINT B ETWEEN THE PARTIES THAT SO FAR AS THE DECISION OF THE CIT(A) IN THE CA SE OF THE ASSESSEE FOR THE PRECEDING ASSESSMENT YEARS 2007-08 AND 2008-09 IS C ONCERNED, THE SAME HAS BEEN AFFIRMED BY THE TRIBUNAL VIDE ITS ORDER IN ITA NOS.1129/PN/2010 & 1566/PN/2011 DATED 15.07.2013, A COPY OF WHICH HAS BEEN PLACED ON RECORD. 8. IN VIEW OF THE AFORESAID FACTUAL MATRIX, OSTENSI BLY, NO ERROR CAN BE FOUND IN THE ORDER OF THE CIT(A) WHEREBY HE HAS REQUIRED THE ASSESSING OFFICER TO ASSESS THE INCOME OF THE ASSESSEE IN THE SAME METHO DOLOGY AS APPROVED IN THE EARLIER TWO ASSESSMENT YEARS 2007-08 AND 2008-0 9. APART THEREFROM, WE ALSO FIND THAT THE CIT(A) MADE NO MISTAKE IN DISREG ARDING THE PLEA OF THE ASSESSING OFFICER BASED ON THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA). QUITE CLEARLY , IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA), ISSUE INVOLVED WAS RELATING TO A FRES H CLAIM MADE BY THE ASSESSEE OTHERWISE THAN BY WAY OF A REVISED RETURN. HOWEVER, IN THE PRESENT CASE, THE CLAIM MADE BY THE ASSESSEE IN THE COURSE OF ASSESSMENT PROCEEDINGS IS BASED ON THE PAST ACTION OF THE INCO ME-TAX AUTHORITIES AND OBVIOUSLY AT THE TIME OF FILING OF THE RETURN OF IN COME, ASSESSEE WAS OBLIVIOUS OF THE SUBSEQUENT STAND OF ASSESSING OFFICER IN THE COURSE OF ASSESSMENT FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09. THEREFOR E, THE PRESENT CASE ITA NO.976/PN/2013 STANDS ON A DIFFERENT FOOTING THAN THE FACTS IN THE CASE OF GOETZE (INDIA) LTD. (SUPRA). MOREOVER, AS NOTED BY THE CIT(A) BY REFER RING TO THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAI PARABOLIC SPRINGS LTD., 306 ITR 42 (DELHI) AS WELL AS THE JUDGEMENT OF THE PUNJ AB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. RAMCO INTERNATIONAL, (2011) 332 ITR 306 (P&H) THAT THERE IS NO FETTERS ON THE POWER OF THE APPELLATE A UTHORITIES TO ADMIT FRESH CLAIMS, EVEN IF ONE IS TO UPHOLD THE ASSESSING OFFI CERS STAND OF REFUSING TO ACCEPT FRESH CLAIM OTHERWISE THAN BY WAY OF A REVIS ED RETURN. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES, WE ARE SATISFI ED THAT THE CIT(A) MADE NO MISTAKE IN DIRECTING THE ASSESSING OFFICER TO ASSES S THE BUSINESS INCOME OF THE ASSESSEE IN THE LIGHT OF THE DECISIONS IN THE I MMEDIATELY PRECEDING ASSESSMENT YEARS 2007-08 AND 2008-09, WHICH HAVE SI NCE BEEN APPROVED BY THE TRIBUNAL IN ITS ORDER DATED 15.07.2013 (SUPRA). 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH NOVEMBER, 2014. SD/- SD/- (SUSHMA CHOWLA) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED: 26 TH NOVEMBER, 2014. SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, NASHIK; 4) THE CIT-I, NASHIK; 5) THE DR B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// ASSISTANT REGISTRAR I.T.A.T., PUNE