R.K. KHANNA & ASSOCIATES, V. ITO 11(3)(2),

MA 169/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3828 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 17-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAJA V SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI D. MANMOHAN, VP & SHRI R.K.PANDA, AM M.A. NO. 169/MUM/2010 ARISING OUT OF I.T.A. NO. 4768/MUM/2008 (ASSESSMENT YEAR 2004-05) M/S. R.K. KHANNA & ASSOCIATES, 402, REGENT CHAMBERS, NARIMAN POINT, MUMBAI-400 021 PAN: AADFR9496A VS. THE INCOME-TAX OFFICER 11(3)(2) AAYAKAR BHAVAN, MUMBAI 400 020 APPELLANT RESPONDENT APPELLANT BY : SHRI RAJA V. SINGH RESPONDENT BY : SHRI SANJEEV JAIN ORDER DATE OF HEARING: 04.06.2010 DATE OF ORDER: 11.06.2010 PER R.K.PANDA, AM , THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO AMEND/RECTIFY PARAGRAPH 21 OF THE ORDER AND THEREBY ALLOWING GROUNDS OF APPEAL NO. 8 BY THE ASSESSEE. 2. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING TO T HE MA SUBMITTED THAT THE TRIBUNAL AFTER REPRODUCING TH E PROVISIONS OF EXPLANATION 3 TO SECTION 40(B)(V) HAS HELD THAT BOOK PROFIT DOES NOT INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS ON ACCOUNT OF DISALLOWANCE OF EXPENSES. HOWEVER, THE WORDING SHOULD HAVE BEEN BOOK PROFIT DOES INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON ACCO UNT OF DISALLOWANCE OF EXPENSES. THEREFORE, THE WORD NOT SHOULD BE DELETED FROM THE FIRST SENTENCE OF PARAGR APH 21 MA NO. 169/MUM/2010 M/S. R.K. KHANNA & ASSOCIATES ========================== 2 AND ACCORDINGLY THE GROUNDS OF APPEAL NO. 8 BY THE ASSESSEE SHOULD BE ALLOWED. HE SUBMITTED THAT BOOK PROFIT AS PER EXPLANATION 3 TO SECTION 40(B)(V) IS THE INCOME COMPUTED BY THE ASSESSING OFFICER AFTER MAKI NG THE ADDITION DURING THE COURSE OF ASSESSMENT PROCEE DINGS ON ACCOUNT OF DISALLOWANCE OF EXPENSES. SINCE THE TRIBUNAL HAS HELD THAT BOOK PROFIT DOES NOT INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF DISALLOWANC E OF EXPENSES, THEREFORE, BY INCLUDING THE WORD NOT, A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH NEEDS RECTIFICATION/AMENDMENT U/S. 254(2) OF THE I.T. ACT , 1961. 3. THE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT THE TRIBUNAL HAS CONSCIOUSLY TAKEN THE DECISION. THEREFORE, IT CANNOT BE SAID THAT A MISTAKE HAS CRE PT IN THE ORDER OF THE TRIBUNAL. HE ACCORDINGLY OPPOSED THE MA FILED BY THE ASSESSEE. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. WE FIND THE TRIBUNAL AFTER CONSIDE RING THE EXPLANATION 3 TO SECTION 40(B)(V) HAS HELD THAT BO OK PROFIT DOES NOT INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF DISALLOWANCE OF EXPENSES. THE ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT BOOK PROFIT DOES INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSES SMENT PROCEEDINGS IS HIS OWN LINE OF ARGUMENT. THE EXPLA NATION NOWHERE STATES THAT BOOK PROFIT DOES INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF DISALLOWANCE O F EXPENSES. EVEN THE WORD COMPUTED IN A MANNER LAID DOWN IN CHAPTER XVD DOES NOT SAY THAT AS COMPUTED BY MA NO. 169/MUM/2010 M/S. R.K. KHANNA & ASSOCIATES ========================== 3 THE ASSESSING OFFICER. WE, THEREFORE, DO NOT FIND ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL HAS CONSCIOUSLY TAKEN THE VIEW THAT THE BOOK PROFIT DOES NOT INCLUDE ANY ADDITION MADE BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON ACCOUNT OF DISALLOWANCE OF EXPENSES. THE LEARNED COUNSEL FOR THE ASSESSEE COULD NOT POINT OU T ANY OTHER MISTAKE APPARENT IN THE ORDER PASSED BY THE TRIBUNAL. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE MA FILED BY THE ASSESSEE AND THE SAME IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED ON 11 TH JUNE, 2010 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 11 TH JUNE, 2010 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A), CENTRAL-VII, THANE 4. THE CIT-XI, THANE 5. THE DR D BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES, MUMBAI TPRAO