Rm.K.Viswanatha Pillai & Sons, Tirunelveli V. DCIT, CHENNAI

MA 179/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4731 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 13-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHIVA SRINIVAS
• Assessee Lawyers: R VIJAYARAGHAVAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI ... , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.179/MDS/2016 (IN I.T.A. NO.1786/MDS/2014) ' (' / ASSESSMENT YEAR : 2008-09 M/S RM K. VISVANATHA PILLAI & SONS, 176F, TRIVANDRUM ROAD, TIRUNELVELI 627 003. PAN : AABFR 1307 C V. THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(1), CHENNAI - 600 034. (*+' /PETITIONER) (*,+-/ RESPONDENT) *+' / 0 /PETITIONER BY : SH. R. VIJAYARAGHAVAN, ADVOC ATE *,+- / 0 / RESPONDENT BY : SHRI SHIVA SRINIVAS, JCIT 1 / 2% / DATE OF HEARING : 09.09.2016 3'( / 2% / DATE OF PRONOUNCEMENT : 23.09.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS PETITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER O F THIS TRIBUNAL DATED 01.06.2016. 2. REFERRING TO THE ORDER OF THIS TRIBUNAL DATED 01 .06.2016, MORE PARTICULARLY, PARA 30 AT PAGE 18, THE LD.COUNS EL FOR THE 2 M.P. NO.179/MDS/16 ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER DISAL LOWED THE CLAIM OF EXPENDITURE TOWARDS REPAIRS TO THE EXTENT OF ` 65,71,729/-. DURING THE COURSE OF APPELLATE PROCEEDING, THE CIT(APPEALS ) CALLED FOR REMAND REPORT. THE ASSESSING OFFICER VERIFIED THE CLAIM OF THE ASSESSEE AND FOUND THAT TO THE EXTENT OF ` 64,58,309/- WAS CORRECT. IN FACT, THIS TRIBUNAL, WHILE RECORDING ITS FINDING AT PARA 32 AT PAGE 19 OF THE ORDER, FOUND THAT THE ASSESSING OFFICER A FTER VERIFYING THE MATERIAL FILED BY THE ASSESSEE, ACCEPTED THE CLAIM MADE BY THE ASSESSEE TO THE EXTENT OF ` 64,58,309/-. HOWEVER, WHILE RECORDING ITS FURTHER FINDING, THIS TRIBUNAL CONFIRMED THE OR DER OF THE ASSESSING OFFICER. THIS IS ONLY AN INADVERTENT ERROR IN THE ORDER OF THIS TRIBUNAL WHICH CREPT IN. WHEN THE ASSESSING OFFICER FOUND T HAT THE CLAIM OF THE ASSESSEE TOWARDS REPAIR TO THE EXTENT OF ` 64,58,309/- IS CORRECT. THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- HAS TO BE ALLOWED. THEREFORE, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 3. ON THE CONTRARY, SHRI SHIVA SRINIVAS, THE LD. DE PARTMENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSING OFFICE R IN THE REMAND REPORT CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- IS CORRECT, THEREFORE, TO THAT EXTENT, THERE IS A PRIMA FACIE ERROR IN THE ORDER OF THIS TRIBUNAL WHICH NEEDS TO BE RECTIFIED. 3 M.P. NO.179/MDS/16 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT THE CIT(APPEALS) CALLED FOR REMAND REPORT DURING THE COURSE OF FIRST APPELLATE PROCEEDING AND THE ASSESS ING OFFICER FOUND THAT THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- IS CORRECT. THEREFORE, OUT OF ` 65,71,729/-, THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- NEEDS TO BE ALLOWED. HOWEVER, THIS TRIBUNAL CONFIRMED THE ORDER OF THE ASSESSING OFFIC ER AND FOUND THAT THE CLAIM OF THE ASSESSEE WAS CORRECT. WHEN THE AS SESSING OFFICER WAS FOUND THAT THE CLAIM OF THE ASSESSEE WAS CORREC T, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CLAIM NEEDS T O BE ALLOWED. THEREFORE, BY INADVERTENT MISTAKE, THE CLAIM OF THE ASSESSEE WAS CONFIRMED BY THIS TRIBUNAL. THEREFORE, TO THAT EXT ENT, THERE IS AN ERROR WHICH NEEDS TO BE RECTIFIED UNDER SECTION 252 (2) OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). ACCORDI NGLY, THE ORDER OF THIS TRIBUNAL IN I.T.A. NO.786/MDS/2014 IS HEREBY R ECTIFIED AS FOLLOWS:- AT PAGE 19, PARA 32, THE FOLLOWING SHALL BE DELET ED:- 32. ..THE ASSESSING OFFICER, AFTER VERIFYING THE MATERIAL FILED BY THE ASSESSEE, FOUND THAT THE CLAI M MADE BY THE ASSESSEE IS CORRECT EXCEPT TO THE EXTENT OF ` 64,54,309/-. WHEN THE ASSESSING OFFICER FOUND THAT THE CLAIM MADE BY THE ASSESSEE IS CORRECT, THI S TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT( A) 4 M.P. NO.179/MDS/16 HAS RIGHTLY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. IN THE ABSENCE OF ANY OTHER MATERIAL AVAILABLE ON RECORD TO PROVE THE GENUINENESS OF THE CLAM TO THE EXTENT OF ` 64,54,309/-, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CIT(A) HAS RIGHT LY CONFIRMED THE ORDER OF THE ASSESSING OFFICER. THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDER OF THE CIT(A). ACCORDINGLY, THE SAME IS CONFIRMED. INSTEAD THE FOLLOWING SHALL BE INSERTED - 32. .THE ASSESSING OFFICER, AFTER VERIFYING THE MATERIAL FILED BY THE ASSESSEE, FOUND THAT THE CLAIM OF THE ASSESSEE WAS CORRECT TO THE EXTENT OF ` 64,58,309/-. IN FACT, THE ASSESSEE CLAIMED THE EXPENDITURE OF ` 65,71,729/-, OUT OF WHICH THE ASSESSEE FILED MATERIAL TO THE EXTENT OF ` 64,58,309/-, WHICH WAS FOUND TO BE CORRECT BY THE ASSESSING OFFICER HIMSELF. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THERE IS NO JUSTIFICATION IN MAKING DISALLOWANCE. THE DISALLOWANCE, AT THE BEST, CAN BE MADE ONLY TO THE EXTENT OF ` 1,13,420/-. THE ASSESSING OFFICER IN THE REMAND REPORT FOUND THAT THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- IS CORRECT. IN THE ABSENCE OF ANY FURTHER MATERIAL, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE CLAIM OF THE ASSESSEE TO THE EXTENT OF ` 64,58,309/- NEEDS TO BE ALLOWED. ACCORDINGLY, THE ORDERS OF THE AUTHORITIES BELOW ARE SET ASIDE AND THE ADDITION MADE BY THE ASSESSING OFFICER 5 M.P. NO.179/MDS/16 TO THE EXTENT OF ` 64,58,309/- IS DELETED. THE ASSESSING OFFICER HAS TO RESTRICT THE DISALLOWANCE ONLY TO ` 1,13,420/-. THE ORDER OF THIS TRIBUNAL DATED 01.06.2016 IS RECT IFIED ACCORDINGLY. THE OTHER PART OF THIS ORDER SHALL REMAIN WITHOUT A NY CHANGE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 23 RD SEPTEMBER, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( ... ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 23 RD SEPTEMBER, 2016. KRI. / *267 87(2 /COPY TO: 1. *+' / PETITIONER 2. *,+- /RESPONDENT 3. 1 92 () /CIT(A) 4. 1 92 /CIT 5. 7: *2 /DR 6. ;' < /GF.