Adattil Mohammed, Kottakkal V. DCIT, Calicut

MA 103/COCH/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9777 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA

Judgement Text

1 ITA NO.103/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.103/COCH/2012 (ARISING OUT OF I.T.A NO. 135/COCH/2011) (ASSESSMENT YEAR 2007-08) ADATTIL MOHAMMED VS THE DY.C.I.T., CENT. CIR.2 HILL VIEW, CHANKUVETTI KOZHIKODE MAIN ROAD, KOTTAKKAL PAN : ADQPM9819E (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ANIL D NAIR RESPONDENT BY : SMT. S VIJAYAPRABHA DATE OF HEARING : 21-12-2012 DATE OF PRONOUNCEMENT : 11-01-2013 O R D E R PER N.R.S. GANESAN (JM) THE TAXPAYER HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 21-10-2011. 2. SHRI ANIL D NAIR, THE LD.COUNSEL FOR THE TAXPAYE R SUBMITTED THAT AT PARAGRAPH 6 OF THE TRIBUNALS ORDER, THE ORIGINAL C LAIM WAS RS.30 LAKHS. 2 ITA NO.103/COCH/2012 HOWEVER, THERE IS A TYPOGRAPHICAL ERROR IN THE ORDE R AS THE TRIBUNAL HAS MENTIONED IT AS RS.30,000 IN COMPUTATION OF LONG TE RM CAPITAL GAIN. REFERRING TO THE ASSESSMENT ORDER AND THE GROUNDS O F APPEAL, THE LD.COUNSEL FOR THE TAXPAYER SUBMITTED THAT THE ASSE SSING OFFICER AS WELL AS THE COMMISSIONER OF INCOME-TAX(A) HAS ALLOWED ONLY THE CLAIM OF RS.11,25,000 AS PER THE AGREEMENT; HOWEVER, DISALLO WED THE CLAIM OF THE TAXPAYER OF RS. 30 LAKHS. THE TAXPAYER HAS CHALLEN GED THE DISALLOWANCE OF RS.30 LAKHS WHICH ISSUE WAS REMITTED BACK TO THE FI LE OF THE COMMISSIONER OF INCOME-TAX(A) ADJUDICATION. THE LD.COUNSEL FURTH ER SUBMITTED THAT THIS GROUND WAS NOT ADJUDICATED BY THE COMMISSIONER OF I NCOME-TAX(A) EVEN THOUGH A SPECIFIC GROUND WAS TAKEN AS GROUND NO.6 B EFORE HIM. ACCORDINGLY THIS TRIBUNAL DIRECTED THE COMMISSIONER OF INCOME-TAX(A) TO ADJUDICATE THE ISSUE IN ACCORDANCE WITH LAW. THE TY POGRAPHICAL ERROR INASMUCH AS THE AMOUNT OF RS.30 LAKHS HAS BEEN MENT IONED AS RS.30,000 NEEDS TO BE RECTIFIED. 3. ON THE CONTRARY, SMT. VIJAYAPRABHA, THE LD.DR SUB MITTED THAT THERE WAS NO ERROR AT ALL. THE TRIBUNAL CATEGORICALLY FO UND THAT THE TAXPAYER CLAIMED FOR BENEFIT OF ANOTHER RS.30,000 ON THE GRO UND THAT IT WAS PAID 3 ITA NO.103/COCH/2012 OVER AND ABOVE THE DOCUMENTED CONSIDERATION. THERE FORE, IT IS NOT AN ERROR AND IT WAS A CONSCIENTIOUS DECISION OF THE TRIBUNAL . 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE ASSESSMENT ORDER AS WELL AS THE GROUNDS OF APPEAL RAISED BEFORE THE COM MISSIONER OF INCOME- TAX(A) AS ALSO FROM THE ORDER OF THIS TRIBUNAL, IT IS OBVIOUS THAT THE TAXPAYER HAS CHALLENGED THE DISALLOWANCE OF RS.30 LAKHS IN C OMPUTATION OF LONG TERM CAPITAL GAIN. THIS GROUND WAS NOT ADJUDICATED BY TH E COMMISSIONER OF INCOME-TAX(A), THOUGH THE TAXPAYER HAD RAISED A SPE CIFIC GROUND. THEREFORE, THIS TRIBUNAL FOUND THAT THE COMMISSIONE R OF INCOME-TAX(A) HAS TO DISPOSE OF THE GROUND WHICH WAS RAISED BY THE TA XPAYER. HOWEVER, INSTEAD OF RS.30 LAKHS, THIS TRIBUNAL HAS MENTIONED THE SAME AS RS.30,000. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT IT IS ONLY A TYPOGRAPHICAL ERROR. THE RECORDS ARE VERY CLEAR THAT THE DISALLO WANCE WAS RS.30 LAKHS WHICH WAS BEING CHALLENGED BY THE TAXPAYER. THEREF ORE, IT IS NOT CORRECT TO SAY THAT THE TAXPAYER CLAIMED ONLY RS.30,000. IN F ACT, THE TAXPAYER CLAIMED RS.30 LAKHS AS IT IS APPARENT FROM THE RECORDS. TH EREFORE, THIS TRIBUNAL IS OF 4 ITA NO.103/COCH/2012 THE CONSIDERED OPINION THAT THERE IS AN ERROR WITHI N THE MEANING OF SECTION 254(2) OF THE ACT. ACCORDINGLY THE SAME IS RECTIFI ED AS FOLLOWS: 4.1 ON PAGE 7 AT PARAGRAPH 6 OF THE ORDER OF THIS T RIBUNAL DATED 21-10- 2011, FROM THE FOURTH LINE FROM THE TOP, THE FOLLOW ING SHALL BE DELETED: RS.30,000/- INSTEAD , THE FOLLOWING SHALL BE INSERTED RS.30 LAKHS 4.2 AFTER RECTIFICATION, THE FOURTH LINE FROM THE T YPE OF PARAGRAPH 6 ON PAGE 7 SHALL READ AS FOLLOWS: THE ASSESSEE CLAIMS FOR BENEFIT OF ANOTHER RS.30 LA KHS, 4.3 THE ORDER OF THE TRIBUNAL IS RECTIFIED ACCORDIN GLY. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE TAXPAYER IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH JANUARY, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 11 TH JANUARY, 2013 PK/- 5 ITA NO.103/COCH/2012 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH