Purushothamdas (HUF), Hyderabad V. ITO, Ward-8(2), Hyderabad, Hyderabad

ITA 98/HYD/2015

• Counselvise Citation: 9822514 RSA 2015
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 28-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITRA
• Assessee Lawyers: A V RAGHURAM
• Keywords: Business income
• Section: 154

Judgement Text

ITA NO.98 OF 2015 PURUSHOTHAMDAS HYDERABAD. PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NO. 98/HYD/2015 (ASSESSMENT YEAR: 2008-09) M/S. PURUSHOTHAMDAS (HUF) HYDERABAD PAN- AADHP 9652 G VS. INCOME TAX OFFICER WARD 8(2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI A.V. RAGHURAM, ADVOCATE FOR REVENUE : SHRI RAJAT MITRA, DR DATE OF HEARING : 09.03.2015 DATE OF PRONOUNCEMENT : 13 .03.201 5 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH EORDER OF THE CIT (A)-2 HYDERABAD DATED 15.12.2014 PASSED FOR A.Y 2008- 09 U/S 154 OF THE I.T.ACT, 1961. 2. BRIEFLY STATED, ASSESSEE IS AN INDIVIDUAL, FILED HIS RETURN OF INCOME THROUGH E-FILING ON 30.09.2008. THE RETURN W AS PROCESSED ON RETURN OF INCOME OF RS.14,78,490. FROM THE PERUSAL OF THE RETURN, THE TOTAL INCOME REFLECTED IS RS.37, 26,390 WHEREAS THE RETURN OF INCOME WHICH WAS UPLOADED WAS ON AN I NCOME OF RS.71,16,100. THE ASSESSEE FILED RECTIFICATION APPL ICATION U/S 154 STATING AS FOLLOWS. I AM IN RECEIPT OF ABOVE SAID NOTICE U/S 22(1) OF THE I.T. ACT, 1961 WHEREIN A REGULAR TAX DEMAND OF RS.14,78,490.00 IS SHOWING AS LONG OVERDUE. ITA NO.98 OF 2015 PURUSHOTHAMDAS HYDERABAD. PAGE 2 OF 4 UPON RECEIPT OF ABOVE SAID NOTICE, I MET WITH THE I TI AND CAME TO KNOW THAT THE DEMAND IS FOR A.Y 2008-09. I WOULD LIKE TO BRING TO YOUR KIND NOTICE THAT I HAVE NOT RECEIVED ANY ORDER OR INTIMATION FOR A.Y 2008-09. MY TOTAL INCOME FOR A.Y IS RS.37,26,390.00. COPY O F ITR V IS ATTACHED HEREWITH FOR YOUR READY REFERENCE. BASED ON THE COPY OF SCREEN SHOT OF PROCESSING DETA ILS PROVIDED TO ME TO DRAW THE CONCLUSION THAT MY CAPIT AL GAIN INCOME IS TAKEN TWICE ONCE AS CAPITAL GAIN AND AGAIN AS A BUSINESS INCOME, WHICH LEADS TO EXCESS INCOME AND TAX THEREON. REQUEST YOUR GOODSELF TO DELETE THE INCOME TAKEN UN DER BUSINESS HEAD AND RECOMPUTED THE TAX LIABILITY. I HUMBLY REQUEST YOUR GOODSELF TO PASS THE RECTIFIC ATION ORDER U/S 154 AND KEEP THE DEMAND IN ABEYANCE TILL THE DISPOSAL OF PETITION. 3. INCOME TAX OFFICER WARD 8 HYDERABAD STATED THAT THERE IS NO MISTAKE APPARENT FROM RECORD AND REJECTED PET ITION U/S 154 FILED BY THE ASSESSEE. 4. AGGRIEVED THE ASSESSEE PREFERRED APPEAL BEFORE T HE CIT (A). THE LD CIT (A) CONFIRMED THE ORDER OF THE AO W ITHOUT VERIFYING WHETHER THERE HAS BEEN AN ERROR IN THE SOFTWARE IN THE E-FILED RETURN. THE LD COUNSEL FOR THE ASSESSEE ON FURTHER APPEAL BEFORE US RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE ORDER OF THE LD CIT (A) IS PERVERSE, ILLEGAL AN D UNSUSTAINABLE IN LAW. 2. THE LD CIT (A) ERRED IN UPHOLDING THE ORDER OF T HE AO DECLINING TO RECTIFY THE ERROR THAT HAS CREPT IN THE E-RETURN ON ACCOUNT OF TECHNICAL ERROR WHICH IS NOT ATTRIBUTABLE TO THE APPELLANT. 3. THE LD CIT (A) FAILED TO APPRECIATE THAT DUE TO THE TECHNICAL ERROR IN THE SOFTWARE USED FOR UPLOADING THE E-RETURN THE SHORT TERM CAPITAL GAINS OFFERED BY TH E APPELLANT HAS BEEN TAKEN TWICE, ONCE AS INCOME FROM SHORT TERM CAPITAL GAINS AND THE SECOND TIME AS SHO RT ITA NO.98 OF 2015 PURUSHOTHAMDAS HYDERABAD. PAGE 3 OF 4 TERM CAPITAL GAINS FROM OTHERS. THE CIT (A) FAILED TO APPRECIATE THAT THIS RESULTED IN INCORRECT DETERMINATION OF INCOME AT RS.71,16,100 AS AGAINST THE INCOME ADMITTED BY THE APPELLANT ATRS.37,26,390. 4. THE ORDER OF THE LD CIT (A) IS PERFUNCTORY IN A S MUCH AS THE LD COMMISSIONER (APPEALS) DID NOT CONSIDER VARIOUS DOCUMENTS ENCLOSED TO THE APPEAL MEMO AND THE WRITTEN SUBMISSIONS FILED BY APPELLANT 5. THE LD COUNSEL FOR THE ASSESSEE POINTED OUT VARI OUS CONTRADICTIONS IN THE RETURN DOWNLOADED BY THE AO, PARTICULARLY COL.6 WHERE THE TOTAL HAS BEEN STATED AS RS.38,26,3 85 AND COL.4 WHERE THE SHORT TERM CAPITAL GAIN OFFERED BY THE AS SESSEE HAS BEEN TAKEN TWICE, ONCE AS INCOME FROM THE SHORT TER M CAPITAL GAIN AND THE SECOND TIME AS SHORT TERM CAPITAL GAIN FROM OTHERS. FURTHER, ASSESSEE ALSO POINTED OUT THAT THE AMOUNT PAYABLE HAS BEEN TAKEN AS NIL. THE ASSESSEE ALSO POINTED OUT AT PAGE 3 OF THE PAPER BOOK THAT THE PHYSICAL COPY OF THE RETURN FIL ED IN ITR-V WHERE THE AMOUNT HAS BEEN CORRECTLY STATED. RELIANC E WAS PLACED ON THE DECISION OF THE MUMBAI E BENCH IN THE CASE O F ACIT VS. SHRI SACHIV SUNIL MEHTA, WHEREIN IT HAS BEEN HELD A S FOLLOWS: 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IN A SIMILAR CASE, THE ITAT IN ITA NO. 4304 /MUM/2012 HAS OBSERVED THAT IN THE PRESENT SYSTEM OF E-FILING OF RETURN WHICH IS TOTALLY DEPENDED UPON SOFTWARE, IT IS POSSIBLE T HAT SOME CLERICAL ERRORS MAY OCCUR AT THE TIME OF ENTERING THE DATA I N ELECTRONIC FORM. THE RETURN IS PREPARED ELECTRONICALLY WHICH I S CONVERTED INTO AN XML FILE EITHER THROUGH THE FREE DOWNLOADED SOFTWARE PROVIDED BY THE CBDT OR BY THE SOFTWARES AVAILABLE IN THE MARKET. IN EITHER OF THE CASE, THERE IS EVERY POSSI BILITY OF ENTERING INCORRECT DATA WITHOUT HAVING THE EXPERT KNOWLEDGE OF PREPARING AN XML FILE SO CREATED IS UPLOADED TO THE OFFICIAL WEBSITE I.E. WWW.INCOMETAXINDIAEFILING.GOV.IN. ONCE THE RETURN I S UPLOADED ITR-V, WHICH IS THE ACKNOWLEDGMENT OF THE RETURN SO FILED, IS GENERATED BY THE SYSTEM ITSELF AND IF, THE RETURN I S NOT SIGNED DIGITALLY, THEN ITR-V SO GENERATED HAS TO BE SIGNED AND SENT TO CENTRAL PROCESSING CENTRE, BANGALURU WITHIN 120 DAY S. ITA NO.98 OF 2015 PURUSHOTHAMDAS HYDERABAD. PAGE 4 OF 4 6. FROM THE ABOVE CLARIFICATIONS MADE BY THE ASSESS EE, WE ARE OF THE OPINION THAT THE MISTAKE HAS CREPT IN THE E- RETURN ON ACCOUNT OF TECHNICAL ERRORS WHICH IS NOT A DELIBERA TE MISTAKE OF THE ASSESSEE AND HENCE THE MATTER HAD TO BE RECTIFI ED U/S 154 BY THE AO. WE DIRECT THE AO TO PASS RECTIFICATION U/S 154 ACCORDINGLY AND ALLOW THE ASSESSEES APPEAL. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MARCH, 2015. S D/ - S D / - (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 13 TH MARCH, 2015. VNODAN/SPS COPY TO: 1. SHRI K.VASANTHKUMAR, A.V.RAGHU RAM, ADVOCATES, 610 BABUKHAN ESTATE, BASHEERBAGH, HYDERABAD 1 2. INCOME TAX OFFICER WARD 8(2) 8THFLOOR, IT TOWERS, A C GUARDS, HYDERABAD 3. THE CIT(A)-2 HYDERABAD 4. THE CIT 2 HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER