ITO, WD12(1), kolkata, Kolkata V. M/s Avian Overseas Pvt. Ltd., Kolkata

MA 194/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7106 (ITAT-KOLKATA)
• Duration Of Justice: 10 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 12-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Keywords: Assessment record
• Section: 143(3); 154

Judgement Text

M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 1 IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B, KOLKATA (BEFORE SHRI A.T.VARKEY, J.M. &DR.A.L.SAINI, A.M.) M.A.NO.194/KOL/2017 A/O ITA NO. 1323/KOL/2014 : ASSTT. YEAR : 2006-07 ITO, WARD-12(1) AAYAKAR BHAVAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. VS M/S AVIAN OVERSEAS PVT. LTD. P-129, BLOCK-G, NEW ALIPORE KOLKTA-700053. PAN: AADCA 9364 K (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI A.BHATTACHARJEE, ADDL. CIT RESPONDENT BY: SHRI RAVI TULSIYAN, FCA DATE OF HEARING : 08.06.2018 DATE OF PRONOUNCEMENT :- 24.08.2018 ORDER PER DR. A.L.SAINI, A.M .: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT ) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 05.05.2017. 2. THE CASE OF THE REVENUE IN THIS MISCELLANEOUS APPLICATION IS THAT THE THERE IS A DIFFERENCE BETWEEN THE TDS CERTIFICATES VIS--VIS RECEIPTS NOT RECORDED IN THE BOOKS OF ACCOUNT. THE DEPARTMENT IN THIS MISCELLANEOUS APPLICATION WORKED OUT THE DIFFERENCE TO THE TUNE OF RS.56,91,041/- WHICH IS NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESSEE. THE DIFFERENCE WORKED OUT BY THE DEPARTMENT IS GIVEN BELOW :- M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 2 PARTY FROM WHERE PAYMENT RECEIVED NATURE OF INCOME/RECEIPT AS PER TDS CERTIFICATES AS PER BOOKS OF ACCOUNT (P/L A/C) RECEIPT NOT RECORDED IN BOOKS HINDALCO INDUSTRIES LTD. COAL TRANSPORTATION, ESCALATION & MINING CHARGES & HIRING CHARGES 20,14,88,090/- LESS:-STATED BY ASSESSEE AS HAVING BEEN SHOWN AS SALES IN A.Y.2005 - 06 62,14,539/ - 19,52,73,551/- LESS:-STATED BY ASSESSEE AS HAVING BEEN SHOWN AS ADVANCE FOR SUBSEQUENT YEARS 10,00,000/- NET RECEIPT FOR THE A.Y.2006- 07 19,42,73,551/- 18,85,82,510/- 56,91,041/- TATA STEEL LTD. (TISCO) JODA COST ESCALATION & MINING CHARGES 1,01,40,742/- 66,82,249/- LESS:- STATED BY ASSESSE AS HAVING BEEN SHOWN AS SALES IN A.Y.2005-06 36,70,533/- ------ NET RECEIPT FOR THE A.Y.2006- 07 64,70,209/- TATA STEEL LTD MINING CHARGES 1,57,05,606/- LESS:-STATED BY ASSESSEE AS HAVING BEEN 14,22,834/- M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 3 (TISCO) SUKINDA SHOWN AS SALES IN A.Y.2005 - 06 1,53,69,070/- NET RECEIPT FOR THE A.Y.2006- 07 1,42,82,772/- MISC.PARTIES-HIRING CHARGES -------- 18,82,480/- -------- INTEREST & OTHERS 2,77,706/- 2,91,955/- ---------- DIFFERENCE BEING RECEIPT NOT RECORDED IN BOOKS OF ACCOUNT 56,91,041/- 3. THE LD. DR FOR THE REVENUE POINTED OUT THAT IN THE CHART ABOVE EVEN IF ADJUSTMENTS IN CREDITED AMOUNT IS ACCEPTED THEN ALSO THE AMOUNT CREDITED IN BOOKS OF ACCOUNTS FALLS SHORT OF AMOUNT OF CREDIT REFLECTED IN TDS CERTIFICATES, IN CASE OF HINDALCO INDUSTRIES LTD., TO THE TUNE OF RS. 56,91,041/-. THE LD. DR ALSO POINTED OUT THAT AFTER THE ORIGINAL ASSESSMENT DATED 30.12.2008, THE ASSESSEE HAD FILED A RECTIFICATION PETITION U/S 154 ON 09.01.2009, WHEREIN A RECONCILIATION OF TOTAL TURNOVER AS PER TDS-CERTIFICATE AND TURNOVER AS PER THEIR LETTER DATED 26.11.2008 WAS ALSO FILED. IN THIS RECONCILIATION THE ASSESSEE HAS STATED THAT CERTAIN AMOUNTS ON WHICH TDS WAS MADE WERE BOOKED IN TURNOVER OF PRECEDING/SUCCEEDING YEAR. IN THIS RECONCILIATION THE ASSESSEE HAS ALSO ACCEPTED THAT CREDIT AMOUNT OF RS. 12,45,974/- CANNOT BE RECONCILED. THEREFORE THE RECTIFICATION PETITION WAS REJECTED BY THE THEN AO VIDE HIS LETTER DATED 31.07.2009. THEREFORE THE LD. DR FOR THE REVENUE POINTED OUT THAT SHORT-CREDIT AS POINTED OUT IN THE ABOVE CHART TOGETHER WITH THE AMOUNT OF CREDIT OF RS. 12,45,974/- WHICH THE ASSESSEE ITSELF HAS ACCEPTED AS NOT RECONCILED, I.E. RS.69,37,015/- (RS.56,91,041 + RS.12,45,974) CLEARLY SHOULD HAVE BEEN CONSIDERED AS UNDISCLOSED INCOME OF THE ASSESSEE; AND THESE FACTS WERE NOT CONSIDERED BY HONBLE ITAT. THEREFORE, ORDER OF THE HONBLE ITAT REQUIRES RECTIFICATION. 4. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT AFTER COMPLETION OF ASSESSMENT U/S 143(3) OF THE ACT THE ASSESSEE FILED A RECTIFICATION PETITION U/S 154 OF THE ACT ON 09.01.2009, WHEREIN THE ASSESSEE SUBMITTED A RECONCILIATION OF TOTAL TURNOVER M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 4 AS PER TDS CERTIFICATE AND AS PER BOOKS OF ACCOUNT. THE SAID PETITION WAS SUBSEQUENTLY REJECTED BY THE AO VIDE ORDER DATED 31.07.2009. WHILE REJECTING THE PETITION THE LD. AO OBSERVED THAT IN THE ASSESSMENT ORDER DATED 30.12.2008, ADDITION OF RS.1,80,01,850/- WAS MADE WITH RESPECT TO SPECIFIC CREDIT ON WHICH CLAIM OF TDS OF RS.1,00,991/- WAS MADE BY THE ASSESSEE AND NOT BASED ON THE DIFFERENCE OF TOTAL TURNOVER AS PER TDS CERTIFICATE AND TURNOVER AS PER BOOKS OF ACCOUNT, RECONCILIATION OF WHICH WAS GIVEN IN THE SAID PETITION. THE LD. COUNSEL POINTED OUT THAT ON APPEAL BY THE ASSESSEE THE LD. CIT(A) VIDE ORDER DATED 20.03.2014 ALLOWED THE APPEAL OF THE ASSESSEE AND DELETED THE ADDITION OF RS.1,80,01,850/- ON THE BASIS THAT THE INCOME RELATING TO THE SAID CERTIFICATE WAS DULY INCLUDED IN THE INCOME REFLECTED BY THE ASSESSEE. AGAINST THE SAID ORDER OF CIT(A) THE DEPARTMENT FILED APPEAL BEFORE HONBLE ITAT, WHO, DISMISSED ALL GROUNDS OF REVENUE. LATER ON, THE JURISDICTION OF THE ASSESSEE HAS TRANSFERRED TO DCIT, CENTRAL CIRCLE-2 (2), AND PRESENT AO EXAMINED ALL THE TDS CERTIFICATES AND CLAIMED THAT THERE IS MISMATCH OF RS.56,91,041/- IN CASE OF HINDALCO INDUSTRIES LTD. THE LD. AO ALSO CONSIDERED A SUM OF RS.12,45,974/- AS UNDISCLOSED INCOME BASED ON RECTIFICATION PETITION U/S 154. THEREFORE LD. COUNSEL POINTED OUT THAT MISCELLANEOUS APPLICATION FILED BY DEPARTMENT DOES NOT ARISE FROM ASSESSMENT ORDER AND ORDER OF HONBLE ITAT IN ITA NO.1323/KOL/2014. HENCE MISCELLANEOUS APPLICATION SHOULD BE DISMISSED. 5. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. WE NOTE THAT THE AO ARRIVED AT THE FIGURE OF RS.56,91,041/- IN THE CASE OF THE PARTY, M/S. HINDALCO INDUSTRIES LTD AND CLAIMED THAT THE AFORESAID AMOUNT REPRESENTS RECEIPTS NOT RECORDED IN THE BOOKS OF ACCOUNT OF THE ASSESEE DURING THE RELEVANT A.Y.2006-07. THE LD. AO ALSO PLACED RELIANCE ON THE RECTIFICATION PETITION FILED BY THE ASSESSEE U/S 154 OF THE ACT ON 09.01.2009 AND FURTHER CONSIDERED A SUM OF RS.12,45,974/- AS UNDISCLOSED INCOME OF THE ASSESSEE IN ADDITION TO THE AMOUNT OF R.56,91,041/- AS STATED ABOVE. WE NOTE THAT, TAKING INTO CONSIDERATION THE FACT OF THE PRESENT CASE NARRATED AS ABOVE, WE ARE OF THE VIEW THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE U/S 254(2) OF THE ACT, HAS NOT ARISEN M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 5 OUT OF THE ASSESSMENT ORDER AND CONSEQUENTLY THE ORDER DATED 05.05.2017 OF THE TRIBUNAL IN ITA NO.1323/KOL/2014. ADMITTEDLY, IN THE ORIGINAL ASSESSMENT ORDER DATED 30.12.2008, THE LD. AO HAD IDENTIFIED ONE TDS CERTIFICATE OF RS.1,00,991/- IN THE CASE OF M/S. HINDALCO INDUSTRIES LTD AND MADE ADDITION OF RS.1,80,01,850/- ALLEGING THAT THE SAID SUM SPECIFICALLY WAS NOT CREDITED IN THE PROFIT AND LOSS ACCOUNT OF THE RELEVANT ASSESSMENT YEAR. ADMITTEDLY THEREAFTER BOTH THE LD. CIT(A) AND THE HONBLE ITAT HAVE GIVEN RELIEF TO THE ASSESSEE ON THE SPECIFIC GROUND THAT THE SAID INCOME HAS BEEN CREDITED IN THE PROFIT AND LOSS ACCOUNT. NOW THE PRESENT AO HAS EXAMINED ALL THE TDS CERTIFICATES AND CLAIMED THAT THEY ARE NOT MATCHING WITH THE FIGURES OF BOOKS OF ACCOUNT. UNDOUBTEDLY, THE PRESENT AO AT THIS JUNCTURE, HAS RAISED A COMPLETELY DIFFERENT ISSUE BEFORE THE HONBLE BENCH, THAT IS THE INCOME RELATING TO ALL THE OTHER TDS CERTIFICATES , WHICH WAS NEITHER THE ISSUE RAISED BY THE AO IN THE ORIGINAL ASSESSMENT ORDER NOR WAS THE ISSUE FOR ADJUDICATION BEFORE THE CIT(A) AND BEFORE THE TRIBUNAL. THEREFORE SUCH A DIFFERENT ISSUE WHICH HAS NO CONNECTION WITH THE ISSUE CANNOT BE A MATTER OF MISCELLANEOUS APPLICATION AS FILED BY THE REVENUE U/S 254(2) OF THE ACT. WE NOTE THAT THE LD. DR HAS TRIED TO RAISE A NEW ISSUE WHICH NEITHER WAS BEFORE AO NOR WAS THE ISSUE FOR ADJUDICATION BEFORE THE BENCH. THEREFORE CONSIDERING THESE FACTS WE DO NOT THINK THAT THERE IS A MISTAKE APPARENT ON RECORD. 6. WE NOTE THAT IT IS A WELL SETTLED POSITION OF LAW THAT IN ORDER TO BE A MISTAKE APPARENT FROM THE RECORD OF THE CASE, IT MUST BE AN ERROR APPARENT, OBVIOUS AND GLARING. MERE COMPLEXITY OF THE PROBLEM OR THAT SOME GENUINE ARGUMENT IS NECESSARY TO DISCOVER THE ERROR MAY NOT BE SUFFICIENT TO OUST THE JURISDICTION OF THE TRIBUNAL TO RECTIFY SUCH MISTAKE. NONETHELESS, THE MISTAKE SHOULD BE ONE WHICH COULD BE DISCERNED WITH SOME PRECISION AFTER A JUDICIAL PROBLEM INTO THE ASSESSMENT RECORDS AND OTHER MATERIAL, WITHOUT LONG DRAWN PROCESS OF REASONING AND ON WHICH NO TWO REASONABLE CONTRARY OPINIONS ARE CONCEIVABLE. IN THE ASSESSEES CASE UNDER CONSIDERATION THE TRIBUNAL HAS CONSIDERED THE SUBMISSIONS OF LD. DR FOR REVENUE, AS WELL AS THE LD. AR FOR ASSESSEE. SUBMISSIONS MADE BY LD. DR FOR REVENUE HAS BEEN CONSIDERED BY THE TRIBUNAL IN PARA 6.1 OF THE ORDER; M.A.NO.194/KOL/2017 (A/O ITA NO.1323/KOL/2014) M/S AVIAN OVERSEAS PVT. LTD. A.Y.2006-07 6 WHEREIN LD. DR ARGUED THAT ON VERIFICATION OF THE TDS CERTIFICATE SUBMITTED BY THE ASSESSEE IT IS FOUND THAT THE AMOUNT CREDITED TO RS.1,80,01,850/- AGAINST THE TDS CLAIMED OF RS.1,00,991/- WAS NOT CREDITED INTO THE PROFIT AND LOSS ACCOUNT, THEREFORE, THE AO HAS RIGHTLY ADDED BACK RS.1,80,01,850/- TO THE TOTAL INCOME OF THE ASSESSEE. THEREFORE, THE SUBJECT MATTER OF THE MISCELLANEOUS APPLICATION HAD ALREADY BEEN CONSIDERED BY THE TRIBUNAL, HENCE THERE SHOULD NOT BE ANY MISTAKE APPARENT FROM THE RECORD. 7. THEREFORE CONSIDERING THE FACTUAL POSITION AND THE POSITION IN LAW WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT AND THEREFORE WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 8. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24.08.2018. SD/- SD/- (A.T. VARKEY) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 24.08.2018 RG (SR.PS) COPY OF THE ORDER FORWARDED TO: 1. REVENUE : ITO, WARD-12(1), KOLKATA 2 ASSESSEE : M/S AVIAN OVERSEAS PVT. LTD. 3. THE CIT-, KOLKATA 4. THE CIT(A)-XII, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, SENIOR PRIVATE SECRETARY/HEAD OF OFFICE ITAT KOLKATA BENCHES, KOLKATA.