Ashok Raj Nath, Panipat V. ACIT, Panipat

MA 253/DEL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8018 (ITAT-DELHI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 20-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y KAKKAR
• Assessee Lawyers: S K GOEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI (FRIDAY) BEFORE SHRI R.P. TOLANI AND SHRI T.S. KAPOOR M.A. NO. 253/DEL/2011 ( IN ITA NO.1065/DEL/09 ) ASSTT. YR: 2006-07 SHRI ASHOK RAJ NATH, VS. ACIT, C/O M/S DEEPAK WOOLEN MILLS, PANIPAT CIRCLE, G.T. ROAD, PANIPAT. PANIPAT. PAN/GIR NO. AAFPN-8330-F ( APPLICANT ) ( RESPONDENT ) APPLICANT BY : SHRI S.K. GOEL ADV. RESPONDENT BY: MS. Y. KAKKAR SR. DR O R D E R PER R.P. TOLANI, J.M : THIS IS ASSESSEES MISC. APPLICATION U/S 254(2) OF THE I.T. ACT, 1961, REQUESTING TO RECTIFY ITAT ORDER DATED 18-3-2011 IN THE ABOVE CAPTIONED APPEAL TO THE EFFECT THAT AT THE END OF PARA 8 AT P AGE 9 A MISTAKE IN THE ORDER OF THE ITAT HAS INADVERTENTLY CREPT IN: THE ASSESSING OFFICER SHOULD PASS NECESSARY ORDER AS PER LAW A PER ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. WE WANT TO MAKE IT CLE AR THAT BURDEN IS ON THE ASSESSEE TO BRING EVIDENCE ON RECO RD ESTABLISHING THAT THE BUYER HAS DECLARED THIS INCOM E IN ITS RETURN OF INCOME FOR THIS ASSESSMENT YEAR. 2. TO ASCERTAIN THE MISTAKE THE LD. COUNSEL THEN RE FERRED TO THE OBSERVATION IN THE SAME PARA AT THE END OF PAGE 5, WHICH IS AS UNDER: THE SECOND IMPORTANT ASPECT IS THAT HE CLAIM OF TH E ASSESSEE HAS BEEN ACCEPTED BY THE ASSESSING OFFICER ALSO IN THE SUBSEQUENT YEAR BECAUSE IN SPITE OF COMPLETING THE ASSESSMENT 2 OF ASSESSMENT YEAR 2007-08 U/S 143(3), NO ADDITION HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF RENTAL INCOME FOR THE MONTH OF APRIL & MAY, 2006 ALTHOUGH THE SAME WA S ALSO REFUNDED BY THE ASSESSEE TO SHRI P.J. SINGH BY WAY OF SAME CHEQUE NO. 618356 DATED 5-6-2006 AND THE PROPERTY I N QUESTION WAS TRANSFERRED BY THE ASSESSEE TO THE BUYER AFTER THAT DATE ONLY. 3. LEARNED COUNSEL FOR THE ASSESSEE PLEADED THAT F ROM THE OBSERVATION OF THE ITAT IT BECOMES CLEAR THAT THE BUYER OF THE PRO PERTY SHRI P.J. SINGH HAD RECEIVED THIS INCOME ON 5-6-2007 I.E. F.Y. 2006-07 RELEVANT TO A.Y. 2007- 08. THEREFORE, THIS INCOME WILL BE REFLECTED IN THE HANDS OF SHRI P.J. SINGH ONLY IN A.Y. 2007-08. 4. ITAT DESIRED THE AO TO VERIFY THIS FACT AND IF T HE INCOME IS INCLUDED BY SHRI P.J. SINGH IN HIS ASSESSMENT FOR A.Y. 2007- 08, THEN THE SAME SHOULD BE DELETED FROM THE ASSESSEES INCOME FOR A.Y. 2006 -07. HOWEVER, WHILE GIVING THIS OBSERVATION, INADVERTENTLY, THE ITAT HA S USED THE WORDS - ASSESSEE TO BRING EVIDENCE ON RECORD ESTABLISHING T HAT THE BUYER HAS DECLARED THIS INCOME IN ITS RETURN OF INCOME FOR THIS ASSES SMENT YEAR. AS THE ITAT WAS DECIDING THE APPEAL FOR A.Y. 2006-07, THIS OBSE RVATION WILL BE CONSTRUED BY AO AS ASSESSMENT YEAR 2006-07 SINCE THE MISTAK E IS APPARENT FROM THE RECORD, THE SAME MAY BE CORRECTED BY DELETING THE W ORDS THIS ASSESSMENT YEAR APPEARING LAST LINE OF PARA 8 OF ITAT ORDER A ND IN PLACE ASSESSMENT YEAR 2007-08 MAY BE SUBSTITUTED. 5. LD. DR, ON THE OTHER HAND, CONTENDS THAT THE ASS ESSEES PETITION AMOUNTS TO REVIEW OF ITAT ORDER, WHICH IS NOT PERMI SSIBLE. 6. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH TH E RELEVANT MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENT OF LEARNED COUNSEL FOR THE ASSESSEE. THE APPEAL IN QUE STION PERTAINS TO A.Y. 2006-07. IN 3 7. FIRST LINES OF PAGE 6 PARA 8 OF ITAT ORDER, IT HAS BEEN CLEARLY OBSERVED THAT SHRI P.J. SINGH RECEIVED RENT FROM AS SESSEE ON 5-6- 2006 BY CHEQUE AND IT WOULD BE DECLARED BY SHRI P.J . SINGH IN HIS RETURN OF INCOME FOR A.Y. 2007-08. THEREFORE, IN L AST LINE OF PARA 8 OF ITAT ORDER THE WORDS THIS ASSESSMENT YEAR HA VE MISTAKENLY CREPT IN. IN VIEW OF ABOVE, WE DELETE THE WORDS TH IS ASSESSMENT YEAR APPEARING IN LAST SENTENCE OF PARA 8 OF THE I MPUGNED ITAT ORDER, WHICH IS NOW SUBSTITUTED AS UNDER: WE WANT TO MAKE IT CLEAR THAT BURDEN IS ON THE ASS ESSEE TO BRING EVIDENCE ON RECORD ESTABLISHING THAT THE BUYE R HAS DECLARED THIS INCOME IN ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2007-08 . 7. IN THE RESULT, ASSESSEES M.A. IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 20-04-2012. SD/- SD/- ( T.S. KAPOOR ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 20-04-2012. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4