ACIT, CHENNAI V. Shri Haresh Dhruva, CHENNAI

MA 214/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7475 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-01-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 08-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N MUTHUKUMARAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI GEORGE MATHAN, JUDICIAL MEMBER M.A.NO. 214/MDS/2011 (IN I.T.A.NO. 1832/MDS/2010) (ASSESSMENT YEAR : 2007-08) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-VIII, CHENNAI. VS. SHRI HARESH DHRUVA, NO.123, THAMBU STREET, GEORGE TOWN, CHENNAI 600 001. PAN AABPH 1305 A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.P.GOPAKUMAR, IRS, COMMISSIONER OF INCOME-TAX RESPONDENT BY : SHRI N. MUTHUKUMARAN DATE OF HEARING : 20 TH JANUARY, 2012 DATE OF PRONOUNCEMENT : 24 TH JANUARY, 2012 O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE . THIS IS A RECTIFICATION PETITION. THE PETITION IS FILED I N THE CONTEXT OF THE MA 214/11 :- 2 -: ORDER PASSED BY THE ITAT, CHENNAI B BENCH DATED 4 TH MAY, 2011 PASSED IN ITA NO.1832/MDS/2010. 2. IN ITS APPEAL FILED BY THE REVENUE, GROUNDS WERE TAKEN AGAINST THE COMMISSIONER OF INCOME-TAX(APPEALS) DEL ETING TWO AMOUNTS BEING ` 35 LAKHS AND ` 3 LAKHS. THE TRIBUNAL UPHELD THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS) I N RESPECT OF DELETING THE ADDITION OF ` 35 LAKHS, BUT SET ASIDE THE ORDER OF THE COMMISSIONER OF INCOME-TAX(APPEALS) IN THE MATTER O F ` 3 LAKHS AND REMITTED BACK THE ISSUE OF ADDITION OF ` 3 LAKHS TO THE ASSESSING OFFICER. 3. IN THIS CONTEXT, THE REVENUE CONTENDED THROUGH T HE ABOVE PETITION THAT THE COMMISSIONER OF INCOME-TAX(APPEAL S) HAS NOT CONSIDERED THE FACTS AND CIRCUMSTANCES RELATING TO THE ADDITION OF ` 35 LAKHS AS WELL AND, THEREFORE, THE TRIBUNAL OUGH T TO HAVE REMITTED BACK THE ADDITION OF ` 35 LAKHS ALSO ALONG WITH REMITTING OF ADDITION OF ` 3 LAKHS. 4. WE HEARD SHRI K.P.GOPAKUMAR, THE LEARNED JOINT COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVENU E AND SHRI MA 214/11 :- 3 -: N. MUTHUKUMARAN, THE LEARNED AUTHORIZED REPRESENTAT IVE APPEARING FOR THE ASSESSEE. REGARDING THE QUESTION OF ADDITION OF ` 35 LAKHS, THE DISCUSSION AND FINDING MADE BY THE T RIBUNAL AS REFLECTED IN PARAGRAPH 5 OF ITS ORDER IS REPRODUCED BELOW : 5. IN RESPECT OF THE ADDITION OF ` 35 LAKHS THE COMMISSIONER (APPEALS) HAS EXAMINED THE DETAILS IN A MINUTE MANNER IN THE LEDGER ACCOUNT MAINTAINED BY THE ASSESSEE. IT WAS CONTENDED BEFORE THE COMMISSIONER(APPEALS) THAT THE ASSESSEE HAS MADE AN AGGREGATE INVESTMENT OF ` 33,75,000/- IN HDFC CASH MANAGEMENT SCHEME. THE SAID SCHEME GREW TO ` 35,22,207.11 ON ACCOUNT OF INTEREST AND DIVIDENDS THUS OUT OF THE ABOVE SU M OF ` 35,22,207.71, THE ASSESSEE HAS SWITCHED OVER TO HDFC FMP FUND A SUM OF ` 35 LAKHS. THEREFORE, AS RIGHTLY POINTED OUT BY THE COMMISSIONER(APPEALS), IT WAS NOT NECESSARY FOR THE ASSESSEE TO INFUSE FRESH CAPITAL OR MONEY TO MAKE THE SAID INVESTMENT OF ` 35 LAKHS. THE SAID INVESTMENT HAS BEEN MADE BY CONVERTING THE MA 214/11 :- 4 -: ALREADY EXISTING INVESTMENT ACCOUNT. AS THE MATTER HAS BEEN CLEARLY PROVED, WE FIND THAT THE COMMISSIONER(APPEALS) HAS RIGHTLY DELETED THE ADDITION OF ` 35 LAKHS. 5. FROM THE ABOVE, IT IS CLEAR THAT THE TRIBUNAL HA S MADE A DEFINITE FINDING THAT THE COMMISSIONER OF INCOME-TA X(APPEALS) CONSIDERED THE QUESTION OF INVESTMENT OF ` 35 LAKHS MADE BY THE ASSESSEE. THE TRIBUNAL AGREED WITH THE COMMISSION ER OF INCOME-TAX(APPEALS) THAT THE INVESTMENT OF ` 35 LAKHS WAS MADE BY THE ASSESSEE BY CONVERTING THE ALREADY EXISTING INVESTMENT AND, THEREFORE, IT IS NOT NECESSARY FOR THE ASSESSE TO INFUSE FRESH CAPITAL. THE FINDING OF THE TRIBUNAL IS REITERATED IN PARAGRAPH 6 OF ITS ORDER BY POINTING OUT THAT THE COMMISSIONER OF INCOME- TAX(APPEALS) HAD CONSIDERED THE ADDITION OF ` 35 LAKHS. IT IS FOR THAT REASON THAT THE TRIBUNAL HAS REMITTED THE QUES TION OF ADDITION OF ` 3 LAKHS ALONE FOR THE RECONSIDERATION OF THE ASSES SING AUTHORITY. MA 214/11 :- 5 -: 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE F IND THAT THE ACTUAL PRAYER OF THE REVENUE IS TO REVIEW THE ORDER ALREADY DECIDED WHICH, OF COURSE, IS NOT PERMISSIBLE IN LAW . 7. THIS RECTIFICATION PETITION FILED BY THE REVENUE IS LIABLE TO BE REJECTED. ORDER PRONOUNCED ON TUESDAY, THE 24 TH OF JANUARY, 2012 AT CHENNAI. SD/- SD/- (GEORGE MATHAN) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 24 TH JANUARY, 2012 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR