Deputy Commissioner of Income-tax, (HQ) (Admin) -V, Pune V. M/s. Sai Builders & Developers, Pune

MA 29/PUN/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6503 (ITAT-PUNE)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2021
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 16-08-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: HARI KRISHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO, AM AND SHRI S. S. VISWANETHRA RAVI, JM M.A. NO.29/PUN/2020 (ARISING OUT OF ITA NO.2332/PUN/2017) / ASSESSMENT YEAR : 2011-12 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE. .. /APPLICANT / V/S. M/S. SAI BUILDERS & DEVELOPERS, .. / RESPONDENT MAHATAMA PHULE CHOWK, CHAKAN, TAL KHED, PUNE. PAN : ABKFS7953D. ASSESSEE BY : SHRI HARI KRISHAN. REVENUE BY : SHRI SUDHENDU DAS. / DATE OF HEARING : 16.07.2021 / DATE OF PRONOUNCEMENT : 27.07.2021 / ORDER PER INTURI RAMA RAO, AM: THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE SEEKING THE RECTIFICATION OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO .2332/PUN/2017 VIDE ORDER DATED 21.08.2018. 2. THE REVENUE SEEKS RECTIFICATION OF THE IMPUGNED ORDER ON THE GROUND THAT THE FINDING OF THE TRIBUNAL THAT IT HAD CALLED FOR REM AND REPORT FROM THE ASSESSING OFFICER ON THE ISSUE OF ADDITION ON ACCOUNT OF R EDUCTION OF SALES OF RS.42,68,696/- (GROUND NO.1 OF THE APPEAL MEMO) AND NO AD VERSE COMMENTS 2 HAD MADE BY THE ASSESSING OFFICER IS CONTRARY TO THE FAC T THAT NO SUCH REPORT HAS BEEN CALLED FOR BY THE ITAT AND THEREFORE, THE OCCAS ION TO OFFER ANY COMMENTS BY THE ASSESSING OFFICER DOES NOT ARISE. SINCE T HE FINDING OF THE TRIBUNAL TO DELETE THE SAID ADDITION OF RS.42,68,696/- IS PRE MISED ON THIS WRONG ASSUMPTION, PRAYED TO RECALL THE SAID GROUND OF AP PEAL NO.1 FOR FRESH ADJUDICATION. 3. ON THE OTHER HAND, THE LD.A.R. FOR THE ASSESSEE SHR I HARI KRISHAN SUBMITTED THAT NO SUCH REMAND REPORT WAS CALLED FOR BY THE ITAT FROM THE ASSESSING OFFICER. HOWEVER, HE CONTENDS THAT THE DIRECTION OF THE TRIBUNAL DELETING ADDITION OF RS.42,68,696/- IS NOT BASED ON THE PRE MISE THAT REMAND REPORT WAS CALLED FOR AND NO ADVERSE COMMENTS WERE OFFER ED BY THE ASSESSING OFFICER BUT IT IS BASED ON THE FINDING THAT TENTATIVE PAPERS CANNOT FORM B ASIS FOR MAKING ANY ADDITION. THUS, HE CONTENDS THAT THERE IS NO NEED TO RECALL THE GROUND OF APPEAL NO.1 FOR FRESH ADJUDICATION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THIS TRIBUNAL MADE A WRONG ASSUMPTION THAT RE MAND REPORT WAS CALLED FOR BY THE ITAT FROM THE ASSESSING OFFICER AND NO AD VERSE COMMENTS WERE MADE BY THE ASSESSING OFFICER ON THE SAID ADDITION. T HEREFORE, IN PARA 7 OF THIS TRIBUNAL ORDER, THE FOLLOWING WORDS SHALL STANDS DELETED. 7. DURING THE PROCEEDINGS BEFORE US, THE BENCH CALLED FOR A REMAND REPORT FROM THE AO ON THIS ISSUE. THE AO DID NOT RAISE ANY A DVERSARIAL COMMENTS ADMITTEDLY ON THIS ADDITION AND AGAINST THE ASSESSEE. HOWEVER, FROM READING OF THE FOLLOWING LINES ADDITIONS MADE ON SUCH TENTATIVE PAPERS ARE OBVIOUSLY UNSUSTAINABLE. CONSIDERING THE S AME, WE ARE OF THE OPINION THAT THE ADDITION IS REQUIRED TO BE DELETED AND IN F AVOUR OF THE ASSESSEE. 3 ACCORDINGLY, THE GROUND NO.1 STANDS ALLOWED, IT IS CLEAR THAT THE BASIS OF RELIEF GRANTED BY THE TRIBUNAL IS THAT TENTATIVE PAPER CANNOT FORM BASIS FOR MAKING ANY ADDITION. THEREFORE, IT IS CLEAR THAT THE BASIS FOR GRAN TING RELIEF BY THE ITAT IS NOT BASED ON WRONG ASSUMPTION OF FACTS THAT REMAND R EPORT WAS CALLED FOR FROM THE ASSESSING OFFICER AND THE ASSESSING OFFICER HAD NOT OFFERED ANY ADVERSE COMMENTS. THEREFORE, IT IS NOT NECESSARY TO RE- ADJUDICATE THE GROUND OF APPEAL NO.1. ACCORDINGLY, THE PRAYER FOR RECALL OF GROU ND OF APPEAL NO.1 MADE BY THE REVENUE IS REJECTED. THUS, THE MISCELLANEOU S APPLICATION FILED BY THE REVENUE IS PARTLY ALLOWED ON THE ABOVE LINES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE RE VENUE IS PARTLY ALLOWED. ORDER PRONOUNCED ON 27 TH DAY OF JULY, 2021. SD/- SD/- (S. S. VISWANETHRA RAVI) (IN TURI RAMA RAO) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / PUNE; / DATED : 27 TH JULY, 2021. YAMINI ! ! ! ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A)-9, PUNE. 4. THE PR. CIT 8, PUNE. 5. , , / DR, ITAT, A PUNE; 6. / GUARD FILE. / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE.