R.S.Suriya, CHENNAI V. ACIT, CHENNAI

MA 163/CHNY/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5700 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 20-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SURPIYO PAL
• Assessee Lawyers: JHARNA B HARIHAL
• Keywords: Rectification of order

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , B BENCH, CHENNAI . , ' # ' $%&,( ) BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER AND SHRI DUVVURU R.L. REDDY, JUDICIAL MEMBER MISCELLANEOUS PETITION NOS.163/MDS/2017 IN I.T.A.NO.1242/MDS/2013 ( / ASSESSMENT YEAR :2010-11) SHRI R.S. SURIYA, 15/17, KRISHNA STREET, T. NAGAR, CHENNAI 600 017. VS THE ACIT, CENTRAL CIRCLE II(5), CHENNAI PAN: ALRPS0353G (PETITIONER) ( / RESPONDENT) APPLICANT BY : SHRI JHARNA B. HARIHAL, FCA /RESPONDENT BY : SHRI SURPIYO PAL, JCIT /DATE OF HEARING : 28.07.2017 /DATE OF PRONOUNCEMENT : 31 .07.2017 / O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER: THE MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE PRAYING FOR RECTIFICATION OF MISTAKE APPARENT ON RECORD BY RECALLING THE ORDER OF THE TRIBUNAL PASSED IN I.T.A. NO.1242/MDS/ 2013 DATED 08.04.2015. 2. AT THE OUTSET, THE LD.AR SUBMITTED THAT THE ADVA NCE AMOUNT RECEIVED FROM M/S. RED GIANT FOR RS.1,50,00,000/- H AS BEEN 2 MP NO.163/MDS/2017 ASSESSED AS THE INCOME OF THE ASSESSEE FOR THE ASSE SSMENT YEAR 2009-10, WHICH WAS ACCEPTED BY THE ASSESSEE. HOWEV ER, THE TRIBUNAL IN ITS COMBINED ORDER DATED 08.04.2015 FOR THE ASSESSMENT YEAR 2009-10 AND 2010-11 HAD ERRONEOUSLY RECORDED IN PAGE 14, PARA 6.1 THAT THE ASSESSEE HAD EXPLAINED THAT THE AMOUNT RECEIVED BY THE ASSESSEE WAS AN ADVANCE AND THE SAME WAS OFFERED TO INCOME OF THE ASSESSEE DURING THE SU BSEQUENT ASSESSMENT YEAR 2011-12, HOWEVER THE LD.CIT(A) DIRE CTED THE LD.AO TO TREAT THE ABOVE SAID AMOUNT AS INCOME OF T HE ASSESSEE DURING THE RELEVANT ASSESSMENT YEAR(ASSESSMENT YEAR 2010-11) AND THEREBY ENHANCED THE INCOME. THEREAFTER THE TRIBUNAL HAD DECIDED TO REMIT BACK THE MATTER TO THE FILE OF LD. AO WITH THE FOLLOWING OBSERVATION: 6.3 AFTER HEARING BOTH SIDES, WE HEREBY REMIT THE MATTER BACK TO THE FILE OF THE LD. ASSESSING OFFICER TO EX AMINE THE AGREEMENT EXECUTED BY THE ASSESSEE WITH M/S. RED GI ANT AND PASS APPROPRIATE ORDER AS PER LAW AND MERITS AND IN THE LIGHT OF THE DECISION RENDERED BY US WITH RESPECT TO THE ADVANCE RECEIVED BY THE ASSESSEE FOR RS.2.5 CRORES FROM UTV MOTION PICTURES (MAURITIUS) LTD., FOR THE EARLIER ASSESSME NT YEAR FOLLOWING THE DECISION OF THE EARLIER ORDERS OF THE TRIBUNAL. WE HAVE TAKEN THIS DECISION BECAUSE THE AGREEMENT B ETWEEN THE ASSESSEE AND M/S.RED GIANT IS NOT BEFORE US FOR CONSIDERATION. 2.1 NOW BEFORE US THE LD.AR/ASSESSEE HAS COME OUT W ITH A PRAYER THAT SINCE THE ASSESSEE HAD AGREED FOR THE A DDITION IN THE 3 MP NO.163/MDS/2017 ASSESSMENT YEAR 2009-10 AND ACCORDINGLY ASSESSED BY THE LD.AO, THE ORDER OF THE LD.AO MAY BE SUSTAINED AND THE SUBSEQUENT ORDER OF THE LD.CIT(A) FOR ASSESSING THE SAME AMOUNT ONCE AGAIN AS THE INCOME OF THE ASSESSEE IN THE ASS ESSMENT YEAR 2010-11 MAY BE DELETED, BECAUSE IT WOULD AMOUNT TO DOUBLE TAXATION. THE LD.DR COULD NOT CONTROVERT TO THE SU BMISSION OF THE LD.AR. 3. AFTER CONSIDERING THE RIVAL SUBMISSION, WE ARE O F THE VIEW THAT IF THE ADDITION IS MADE FOR THE SAME AMOUNT IN THE ASSESSMENT YEARS 2009-10 AND 2010-11, IT WOULD AMOUNT TO DOUBL E TAXATION. THEREFORE WE HEREBY DIRECT THE LD.AO TO VERIFY WHET HER THE ADDITION FOR THE ADVANCE AMOUNT OF RS.1,50,00,000/- RECEIVED BY THE ASSESSEE HAS BEEN ASSESSED TO TAX IN THE ASSESS MENT YEAR 2009-10 AND IF ACCEPTED BY THE ASSESSEE, THEN, DELE TE THE ADDITION MADE IN THE ASSESSMENT YEAR 2010-11, BECAUSE IT WOU LD AMOUNT TO DOUBLE TAXATION AND FURTHER THE ASSESSEE HAS ACC EPTED THE ADDITION IN THE ASSESSMENT YEAR 2009-10. HOWEVER, I F FOUND OTHERWISE THE ORDERS AS STATED IN PARA 6.3 OF THE T RIBUNAL DATED 08.04.2015 SHALL STAND REINSTATED. ACCORDINGLY THE ORDER OF THE TRIBUNAL DATED 08.04.2005 IN PARA NO.6.3 FOR THE AS SESSMENT YEAR 2009-10 AND 2010-11 STANDS MODIFIED. 4 MP NO.163/MDS/2017 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED AS INDICATED HEREIN ABOVE. ORDER PRONOUNCED IN THE COURT ON 31 ST JULY 2017, AT CHENNAI SD/- SD/- ( ' # ' $ %& ) (DUVVURU R.L REDDY) ( /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) /ACCOUNTANT MEMBER /CHENNAI, ! /DATED 31 ST JULY, 2017 JR. $%&' ()& /COPY TO: 1. APPLICANT 2. RESPONDENT 3. * ( ('% )/CIT(A) 4. * /CIT 5. &,- . /DR 6. -/ % /GF.