S.Thanneermalai, Salem V. ITO, Salem

ITSSA 1/CHNY/2015

• Counselvise Citation: [2015] 122 COUNSELVISE.COM (IT) 0722 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 20-05-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 01-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: G BASKAR
• Keywords: Block assessment
• Section: 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! # $ , % & BEFORE SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER IT(SS)A .NO. 1/MDS/2015 (BLOCK ASSESSMENT PERIOD FROM 01.04.1988 TO 3 0.07.1998) MR. S.THANNEERMALAI, 7B/3, YERCAUD MAIN ROAD, KONDAPPANAICKENPATTI, SALEM-636 008. VS INCOME TAX OFFICER, WARD-I(4), 3, GANDHI ROAD, SALEM-636 007. PAN: ABFBT8548L ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. G.BASKAR, ADVOCATE /RESPONDENT BY : MR.A.V.SREEKANTH, JCIT /DATE OF HEARING : 26 TH MARCH, 2015 /DATE OF PRONOUNCEMENT : 20 TH MAY, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE OR DER OF THE COMMISSIONER OF INCOME TAX (APPEALS), SALEM DAT ED 28.11.2014 FOR THE BLOCK ASSESSMENT PERIOD FROM 1.4 .1988 TO 30.07.1998. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IN ITS APPEAL IS THAT COMMISSIONER OF INCOME TAX (APPEALS) IS NOT JUSTIFI ED IN HOLDING THAT THERE WAS NO MISTAKE APPARENT FROM REC ORD IN THE ORDER PASSED UNDER SECTION 154 OF THE ACT. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE SEEN THAT INCREASE IN INCOME MADE BY THIS TRIBUNAL HAS WRONGLY 2 IT(SS)A NO.1/MDS/2015 BEEN ADDED TO UNDISCLOSED INCOME OF ` 4,55,000/- INSTEAD OF UNDISCLOSED INCOME OF ` 1,90,920/- COMPUTED BY ASSESSING OFFICERS PROCEEDINGS DATED 27.05.2003 GIVING EFFEC T TO THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). IN OTHER WORDS, THE ISSUE TO BE DECIDED IN THIS APPEAL IS WH ICH IS THE STARTING POINT OF UNDISCLOSED INCOME TO BE CONSIDE RED FOR THE PURPOSE OF GIVING EFFECT TO THE ORDER OF THE TRIBUN AL FOR THE BLOCK PERIOD. THE ASSESSING OFFICER PASSED ORDER U NDER SECTION 154 OF THE ACT DATED 24.09.2008 GIVING EFFE CT TO THE ORDER OF THE TRIBUNAL IN IT(SS)A NO.39 & 53/MDS/200 1 AND IT(SS)A NO.724/MDS/2003 DATED 27.06.2008 DETERMININ G THE REVISED UNDISCLOSED INCOME AT ` 7,31,560/-. WHILE ARRIVING AT THIS FIGURE, THE ASSESSING OFFICER ADOPTED STARTING UNDISCLOSED INCOME AT ` 4,55,000/- WHICH IS THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE AS AGAINST UNDISCLOSED IN COME ARRIVED AT BY THE ASSESSING OFFICER WHILE GIVING EF FECT TO THE COMMISSIONER OF INCOME TAX (APPEALS)S ORDER. 3. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ASSESS EE IN THE RETURN FILED FOR THE BLOCK PERIOD ADMITTED UNDI SCLOSED INCOME OF ` 4,55,000/-. REFERRING TO PAGE 1 TO 22 OF THE PAPER BOOK, COUNSEL SUBMITS THAT BLOCK ASSESSMENT WAS COM PLETED 3 IT(SS)A NO.1/MDS/2015 UNDER SECTION 158BC OF THE ACT DETERMINING UNDISCLO SED INCOME AT ` 16,38,770/-. COUNSEL FOR THE ASSESSEE REFERRING TO PAGES 20 TO 44 OF THE PAPER BOOK SUBMITS THAT ON FURTHER APPEAL COMMISSIONER OF INCOME TAX (APPEALS) GRANTED RELIEF OF ` 12,29,850/- BY ORDER DATED 23.02.2001. FURTHER REL IEF OF ` 2,18,000/- WAS ALSO GRANTED BY THE COMMISSIONER OF INCOME TAX (APPEALS) BY ORDER DATED 9.4.2003, WHICH IS PLA CED AT PAGE 47 OF THE PAPER BOOK. COUNSEL SUBMITS THAT GI VING EFFECT TO THE ORDERS OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 9.4.2003 WAS PASSED ON 27.05.2003 DETERMININ G THE REVISED UNDISCLOSED INCOME AT ` 1,90,920/-. COUNSEL FOR THE ASSESSEE SUBMITS THAT SINCE THE REVISED UNDISCLOSED INCOME AFTER GIVING EFFECT TO THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IS COMING BELOW THE RETURNED INCOME, BY ORDER DATED 10.03.2004 THE ASSESSING OFFICER CONSIDERED THE UNDISCLOSED INCOME AT ` 4,55,000/- WHICH WAS THE UNDISCLOSED INCOME RETURNED BY THE ASSESSEE. 4. AS THE THINGS STOOD THUS, THE TRIBUNAL PASSED OR DER DATED 26.07.2008 PARTLY WITHDRAWING THE RELIEF ALLO WED BY THE COMMISSIONER OF INCOME TAX (APPEALS) AND WHILE GIVI NG EFFECT TO THE ORDER OF THE TRIBUNAL, THE ASSESSING OFFICER 4 IT(SS)A NO.1/MDS/2015 CONSIDERED STARTING POINT OF UNDISCLOSED INCOME AT ` 4,55,000/- BEING RETURNED INCOME FOR COMPUTING THE REVISED UNDISCLOSED INCOME. COUNSEL FOR THE ASSESSEE SUBMIT S THAT ASSESSING OFFICER SHOULD HAVE CONSIDERED STARTING P OINT OF REVISED UNDISCLOSED INCOME AT ` 1,90,920/- AS WAS COMPUTED IN THE ORDER PASSED ON 27.5.2003 GIVING EFFECT TO T HE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS), BUT NOT T HE RETURNED UNDISCLOSED INCOME OF ` 4,55,000/- AS ADMITTED BY THE ASSESSEE. SINCE THE ASSESSING OFFICER ADOPTED ` 4,55,000/- AS STARTING POINT OF UNDISCLOSED INCOME IN THE GIVING EFFECT TO ITAT ORDER THE REVISED UNDISCLOSE D INCOME CAME TO ` 7,31,560/- INSTEAD OF 4,67,478/-. (1,90,920 + 55,50 0 + 2,21,056). THEREFORE, COUNSEL SUBMITS THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 2 4.9.2008 IN COMPUTING REVISED TOTAL UNDISCLOSED INCOME WHI LE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. THE COUNSEL S UBMITS THAT ASSESSEE FILED RECTIFICATION PETITION TO RECTIFY TH IS MISTAKE BUT THE PETITION WAS DISMISSED AND THEREFORE THE MATTER WAS CARRIED TO COMMISSIONER OF INCOME TAX (APPEALS) AN D EVEN THE COMMISSIONER OF INCOME TAX (APPEALS) DISMISSED THE APPEAL OF THE ASSESSEE. 5 IT(SS)A NO.1/MDS/2015 5. DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THERE I S NO MISTAKE APPARENT FROM RECORD AND SUPPORTS THE ORDER S OF LOWER AUTHORITIES. 6. ON HEARING BOTH THE PARTIES, WE FIND CONSIDERABL E FORCE IN THE SUBMISSIONS OF THE ASSESSEE THAT THE STARTIN G POINT OF UNDISCLOSED INCOME FOR THE PURPOSE OF ARRIVING AT R EVISED TOTAL UNDISCLOSED INCOME WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL SHOULD BE CONSIDERED AS ` 1,90,920/- INSTEAD OF ` 4,55,000/- ADOPTED BY THE ASSESSING OFFICER. THUS, THERE IS A MISTAKE APPARENT FROM RECORD IN PASSING CONSEQUENTI AL ORDER DATED 24.09.2008. WE DIRECT THE ASSESSING OFFICER T O START WITH UNDISCLOSED INCOME OF ` 1,90,920/- AND ARRIVE AT THE REVISED UNDISCLOSED INCOME BY WITHDRAWING THE PARTL Y RELIEF GIVEN BY THE TRIBUNAL AND ARRIVE AT THE TOTAL UNDIS CLOSED INCOME. THUS, THE ORDER PASSED BY THE ASSESSING OFF ICER UNDER SECTION 154 OF THE ACT DATED 24.9.2008 IS DIR ECTED TO BE MODIFIED ACCORDINGLY. 6 IT(SS)A NO.1/MDS/2015 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH DAY OF MAY, 2015 . SD/- SD/- ( . ) ( ) +, ) ( A.MOHAN ALANKAMONY ) ( CHALLA NAGENDRA PRASAD ) . / ACCOUNTANT MEMBER +/ . / JUDICIAL MEMBER + /CHENNAI, 1 /DATED 20 TH MAY, 2015 SOMU /45 65 / COPY TO: 1. APPELLANT 2. RESPONDENT 3. 7 () /CIT(A) 4. 7 /CIT 5. 5 //9 /DR 6. < /GF .