Smt. Purnima Sahoo, Cuttack V. ITO, Angul Ward, Angul

MA 14/CTK/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0970 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 16-03-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N SAHU
• Keywords: Rule of consistency

Judgement Text

, . . , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CUTTACK , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 14 / CTK /20 1 8 ( ARISING OUT OF ITA NO. 219 /CTK/2017 ) ( / ASSESSMENT YEAR :20 1 3 - 201 4 ) SMT. PURNIMA SAHOO, PROP. - M/S. RADHIKA, BADA BAZAR, TALCHER, ODISHA VS. ITO, ANGUL WARD, ANGUL ./ ./ PAN/GIR NO. : A GLPS 3658 R ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI S.N. SAHU , AR /REVENUE BY : SHRI SUBHENDU DUTTA , D R / DATE OF HEARING : 26 / 0 3 /201 9 / DATE OF PRONOUNCEMENT 26 / 03 /201 9 / O R D E R TH IS MISCELLANEOUS APPLICATION U/S.254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) HAS BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION O F THE ORDER DATED 30.1 1.2017, P ASSED BY THE TRIBUNAL IN ITA NO.219/CTK/2017 FOR A.Y.201 3 - 201 4 IN THE CASE OF SMT. PURNIMA SAHOO VS. ITO . 2. I HAVE HEA RD ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF TRIBUNAL, INTER ALIA , RELEVANT APPE AL RECORD AND THE ORDER OF THE TRIBUNAL UNDER CHALLENGE . 3. LD. AUTHORISED REPR ESENTATIVE OF THE A SSESSEE (AR) SUBMITTED THAT IN THE ORDER OF THE TRIBUNAL AT PARA 5, IT HAS BEEN NOTED THAT THE ARGUMENTS OF THE ASSESSEE WERE NOTED BUT T HE SAME WERE NOT ACCEPTED WITHOUT ANY REASON AND THE TRIBUNAL HAS IGNO RED THE RULE OF CONSISTENCY WHICH HAS M.A. NO. 14 /CTK/201 8 2 ALSO BEEN IGNORED BY THE AUTHORITIES BELOW, TH EREFORE, P ART DISALLOWANCE UPHELD BY THE TRIBUNAL MAY KINDLY B E DE LETED. L D. AR SUBMITTED THAT THE DECISION OF THE COORDINATE BENCH WAS CITED BEFORE THE TRIBUNAL , HOWEVER, THE TRIBUNAL HAS NOT CONSIDERED IT BY MISTAKE , THEREFORE, THE TRIB UNAL HAS TO RECTIFY THE ORDER BY RECALLIN G THE SAME. LD. AR VEHEMENTLY POINTED OUT THAT THE MISTAKE APPARENT FROM THE FACT OF THE RECORD DESERVES TO BE RECTIFIED AND, T HEREFORE , THIS MISCELLANEOUS APPLICATION MAY KINDLY BE ALLOWED. 4. REPLYING TO THE ABOVE, LD. DEPARTMENTAL REPRESENTATIVE OF THE REVENUE (DR) SUBMITTED THAT THERE IS NO APPARENT MISTA KE ON THE FACE OF THE ORDER OF THE TRIBUNAL AND ASSESSEE WANTS TO REVIEW THE OR DER UNDE R THE GARB OF MISCELLANEOUS APPLICATION. LD. DR DREW THE ATTENTI ON OF THE BENCH TOWARDS RELEVANT OPERATIVE PARAS 5 TO 9 OF THE TRIBUNAL ORDER AND SUBMITTED THAT IN PARA 7, IT HAS CLEARLY BEEN NOTED BY THE TRIBUNAL THAT THE LD. F IRST APPELLATE AUTHORITY REQUIRED THE ASSESSEE TO FILE DETAILS ON DISCOUNT INVOICE - WISE BUT THE ASSESSEE EXPRESSED HER INABILITY TO FURNISH THE SAME, THEREFORE, THE AUTHORITIES BELOW WE RE RIGHT IN MAKI NG PART DISALLOWANCE UNDER THE HEAD DISCOUNT AND COMMISSION OF RS.15,40,933/ - . LD. D R STRENUOUSLY CONTENDED THAT THE TRIBUNAL BY TAKING THE BALAN CING APPROACH HAS GRANTED AND ALLOWED PART CLAIM OF THE ASSESSEE OF RS.6,94,944/ - AND NO FURTHER ALL OWANCE CAN BE GRANTED BY ALLOWING THIS M ISCELLANEOUS APPLICATION , THUS, THE SAME MAY K INDLY BE DISMISSED. M.A. NO. 14 /CTK/201 8 3 5. ON CAREFUL CONSIDERATION OF THE ABOVE RIVAL SUBMISSIONS, I FIND APPROPRIATE TO REPR ODUCE THE RELEVANT OPERATIVE PARAS OF THE TRIBUNAL ORDER D ATED 30.11.2017, WHICH READ AS UNDER : - 7. I HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE ORDER OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE CLAIMED R S. 3 7,39,496/ - IN THE PROFIT AND LOSS ACCOUNT UNDER THE HEAD DISCOUNT AND COMMISSION. THE AO OBSERVED THAT THE SAID AMOUNT WAS COMPRISED OF RS.21,98,563/ - CREDIT NOTES AND RS.15,40,933. 2 2 CASH DISCOUNT. THE AO OBSERVED FROM THE SALE BILL THAT THE ASSESSEE H AS ACCOUNTED FOR NET SALE I.E. SALES AFTER DISCOUNT ONLY AS IT SALES. THUS, THE DISCOUNT ALLOWED HAS ALREADY BEEN REDUCED FROM SALES. THE AO, THEREFORE, IN ABSENCE OF ANY EVIDENCE OF FURTHER CASH DISCOUNT GIVEN BY THE ASSESSEE DISALLOW ED THE CLAIM OF THE A SSESSEE OF RS.15,40,933.22. IN APPEAL BEFORE THE CIT(A), THE CIT(A) REQUIRED THE ASSESSEE TO FILE DETAILS ON DISCOUNT INVOICE - WISE AND BEFORE HIM THE ASSESSEE EXPRESSED ITS INABILITY TO FURNISH THE SAME. IN THESE CIRCUMSTANCES, THE CIT(A) CONFIRMED THE DI SALLOWANCE MADE BY THE AO. 8. BEFORE ME, LD. AR OF THE ASSESSEE FILED COPY OF PROFIT AND LOSS ACCOUNT OF THE PRECEDING ASSESSMENT YEAR 2012 - 2013 AND POINTED OUT THAT SIMILAR DISCOUNT AND COMMISSION CLAIMED AT RS.14,34,572/ - WAS ALLOWED IN THE ASSESSMENT OF THAT YEAR. I FIND THAT IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR 2012 - 2013 5% OF DISCOUNT AND COMMISSION WAS DISALLOWED BY THE AO WHICH WAS DELETED BY THE CIT(A) ON THE GROUND THAT THE DISALLOWANCE OF 5% WAS WITHOUT ANY MATERIAL OR BASIS. HOWEVER, I FI ND THAT IN THE YEAR UNDER CONSIDERATION THE DISALLOWANCE WAS NOT MADE ON ANY ESTIMATE BASIS BUT WAS MADE FOR ABSENCE OF EVIDENCE OR DETAILS. THEREFORE, THE FACTS OF THE INSTANT YEAR IS DISTINGUISHABLE FROM THE FACTS OF THE PRECEDING YEARS. THE ASSESSEE SUB MITTED BEFORE US THAT AFTER THE INVOICE IS RAISED FURTHER DISCOUNT IS ALLOWED TO BUYERS TO KEEP THEM IN GOOD HUMOUR AND SUCH FURTHER DISCOUNT ARE DEBITED IN THE PROFIT AND LOSS ACCOUNT. 9. I FIND FORCE IN THE ABOVE SUBMISSION OF LD. AR OF THE ASSESSEE. BUT IN ABSENCE OF FULL DETAILS THE ENTIRE PAYMENT OF CASH AND DISCOUNT CANNOT BE ACCEPTED. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF THE CASE, IN MY CONSIDERED VIEW, IT SHALL BE IN THE INTEREST OF JUSTICE TO ESTIMATE SUCH CASH DISCOUNT @1% OF THE SALE. T HE TOTAL SALE OF THE ASSESSEE DURING THE YEAR IS RS.6,94,94,474/ - , I THEREFORE, ALLOW DEDUCTION OF RS.6,94,944.74 AS CASH DISCOUNT AND CONFIRM THE BALANCE DISALLOWANCE OF RS.8,43,988.48. M.A. NO. 14 /CTK/201 8 4 FROM CAREFUL READING OF THE ABOVE ORDER OF THE TRIBUNAL, I CLEARLY FIND THAT THE TRIBUNAL HAS CONSIDERED THE CONTENTION S AND ARGUMENTS OF THE ASSESSEE AND HAS ALSO CONSIDERED THE NET PROFIT SHOWN BY THE ASSESSEE DURING PREC EDING AND IN THE YEAR UNDER CONSIDERATION. I ALSO OBSERVE THAT THE ASSESSEE, BEFORE LD. CIT(A) EXPRESSED HER INABILITY TO FURNISH THE DETAILS ON DISCOUNT INVOICE - WISE, WHI CH RESULTED INTO CONFIRMATION OF DISALLOWANCE BY THE FIRST APPELLATE AUTHORITY. FROM PARAS 8 & 9, I CLEARLY OBSERVE THAT THE TRIBUNAL HAS TAKEN A LENIENT VIEW AS THE PART AMOUNT OF CASH DISCOUNT @1% OF TOTAL TURNOVER HAS BEEN ALLOWED TO THE ASSESSEE AND BALANCE AMOUNT OF CLAIM OF CASH DISCOUNT OF RS.8,43,988.48 HAS BEEN CONFIRMED. I AM FULLY SATISFIED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 30.11.2017 WHICH REQUIRES ANY RECTIFICATION PERMISSIBLE U/S.254(2) OF THE ACT. IF FINDINGS ARRIVED BY THE TRIBUNAL A RE DISTURBED, THEN CERTAINLY IT WOULD AMOUNT TO REVIEW OF ORDE R UNDER THE GARB OF RECTIFICATION WHICH IS NOT PERMISSIBLE AS PER THE PROVISIONS OF THE ACT. THERE FORE, I AM INCLINED TO HOLD THAT THIS MISCELLANEOUS APPLICATION IS DEVOID OF MERITS AND WITHOUT ANY SUBSTANCE , THEREFORE, THE SAME IS DISMISSED. 6 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 26 / 03 / 201 9 . S D/ - ( CHANDRA MOHAN GARG ) / JUDICIAL MEMBER CUTTACK ; DATED 26 /03/2019 . . /PKM , S R.P.S. M.A. NO. 14 /CTK/201 8 5 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . SMT. PURNIMA SAHOO, PROP. - M/S. RADHIKA, BADA BAZAR, TALCHER, ODISHA 2. / THE RESPONDENT - ITO, ANGUL WARD, ANGUL 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//