Www.chanakyastudy.com, Ahmednagar V. Deputy Commissioner of Income-tax,

MA 3/PUN/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3344 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 12-01-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: B C MALAKAR SINGH
• Section: 194C

Judgement Text

] IQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE , !' # BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM $$ % / MA NO.03/PN/2015 (ARISING OUT OF ITA NO.1481/PN/2010) % & & / ASSESSMENT YEAR : 2006-07 WWW.CHANAKYASTUDY.COM PROP. MRS. UMA SURENDRA SHINDE, 3957, GURUPRASAD MUDRA MANDIR, NEAR CITY POLICE, AHMEDNAGAR-414001 PAN NO.AAABW0039R . / APPLICANT V/S DCIT, AHMEDNAGAR CIRCLE, AHMEDNAGAR . / RESPONDENT / APPLICANT BY : SHRI S.N. PURANIK / DEPARTMENT BY : SHRI B.C. MALAKAR SINGH ' / ORDER PER R.K. PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUES TS THE TRIBUNAL TO RECTIFY CERTAIN MISTAKES THAT HAVE CREPT IN THE ORDER OF THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO THE MISC ELLANEOUS APPLICATION SUBMITTED THAT AT PAGE 7 OF THE ORDER IN PARA 8 THE FIGURE HAS BEEN WRONGLY TYPED AS RS.9,60,703/- INSTEAD OF RS.19,6 0,703/-. SIMILARLY, IN PARA 5.3 OF THE ORDER THE TRIBUNAL WHILE RECOR DING THE / DATE OF HEARING : 29.05.2015 / DATE OF PRONOUNCEMENT: 10.07.2015 2 MA NO.03/PN/2015 SUBMISSION OF THE ASSESSEE HAS NOT ADJUDICATED THE DELET ION OF DISALLOWANCE MADE U/S.40(A)(IA). SIMILARLY, IN PARA 10 OF THE ORDE R THE BENCH HAS DIRECTED THE AO TO VERIFY THE PAYMENTS IN SUBSEQUENT YEARS OUT OF PROVISIONS MADE ON 31-03-2006. HOWEVER, T HE AO IS INTERPRETING IT AS PAYMENT IN SUBSEQUENT TWO YEARS. THE ASSESSEE WILL BE HIGHLY OBLIGED IF THE CONFUSION IN THE MATTER IS REMOVE D. THE LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE TRIBUNAL SHOULD BE RECTIFIED U/S.254(2) OF THE I.T. ACT S INCE THE MISTAKES HAVE CREPT IN THE ORDER OF THE TRIBUNAL. HE ALSO RELIED ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF SUPREME INDUSTRIES VS. ADDL.CIT REPORTED IN 369 ITR 758 TO THE PROPOSITION THAT NO PARTY SHOULD BE PREJUDICED ON ACCOU NT OF ANY MISTAKE IN THE ORDER OF TRIBUNAL. THEREFORE, MISTAKE FROM ANY SOURCE , BE IT THE PARTIES OR TRIBUNAL, SO LONG AS BECOMES PART O F RECORD, WOULD REQUIRE EXAMINATION BY TRIBUNAL U/S.254(2) OF THE ACT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUBMITTED THAT THERE IS ONLY ONE MISTAKE, I.E. THE FIGURE HA S BEEN WRONGLY TYPED AS RS.9,60,703/- INSTEAD OF RS.19,60,703/-. THEREFORE, THIS MISTAKE MAY BE RECTIFIED. HOWEVER, THERE IS NO OTHER MISTAKE AS POINTED OUT BY THE LD. COUNSEL FOR THE ASSES SEE. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY BE ENTERTAINED ONLY TO THE EXTENT OF RECTIFYING THE FIGURE O F RS.9,60,703/- WHICH SHOULD BE READ AS RS.19,60,703/-. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES. SO FAR AS THE FIRST ISSUE IN THE MISCELLANEOUS APPLICAT ION IS CONCERNED, THE SAME RELATES TO A TYPOGRAPHICAL MISTAKE W HICH HAS BEEN TYPED AT PAGE 7 OF THE ORDER IN PARA 8 AS RS.9,60,7 03/- INSTEAD 3 MA NO.03/PN/2015 OF RS.19,60,703/-. WE, THEREFORE, DIRECT THAT PARA 8 OF THE ORDER OF THE TRIBUNAL BE READ AS UNDER : 8. IN THE INSTANT CASE, AS HAS ALREADY BEEN MENTIONED EARLIER, THE ASSESSEE HAS ACCOUNTED FOR THE ENTIRE SALE PROCEEDS DURING THE IMPUGNED ASSESSMENT YEAR WITH A CONDITION FOR TWO YEAR WARRANTY FOR UPGRADATION AND/OR MODIFICATIONS OF CONTENTS OF THE CDS/SOFTWARES AS DIRECTED BY THE MAHARASTRA PRATHAMIK SHIKSHAN PARISHAD. ACCORDINGLY, THE ASSESSEE HAS MADE PROVISION OF `43,50,000 AND IN SUBSEQUENT YEARS TH E ASSESSEE HAS MADE PAYMENT FOR THE SAME AMOUNTING TO `19,60,703 I N A.Y. 2007-08 AND `7,71,795 IN A.Y. 2008-09. 5. SO FAR AS THE SECOND ISSUE IS CONCERNED, I.E. ALTHOUGH T HE TRIBUNAL HAS REPRODUCED THE SUBMISSION OF THE ASSESSEE REGARDING DELETION OF DISALLOWANCE MADE U/S.40(A)(IA) BUT THE SAME HAS N OT BEEN ADJUDICATED, WE FIND IT WAS THE ARGUMENT ADVANCED B Y THE LD. COUNSEL FOR THE ASSESSEE BEFORE US THAT NAMES OF THE PA RTIES ARE NOT KNOWN FOR WHICH THE ASSESSEE HAS NOT MADE ANY TDS AS PER THE PROVISIONS OF SECTION 194C R.W.S. 40(A)(IA). IT WAS ALSO ARGU ED THAT MOST OF THE JOB OPERATORS WERE PAID LESS THAN RS.50,000/ - FOR WHICH NO TDS IS REQUIRED TO BE MADE. IT WAS ALSO ARGUED THAT THE WHOLE SALE PROCEEDS ARE ACCOUNTED DURING THE IMPUGNED ASSESS MENT YEAR AND THE SAME IS SUBJECT TO LIABILITY FOR TWO YEAR WARRANT Y. ACCORDINGLY, THE TRIBUNAL RESTORED THE ISSUE TO THE FILE OF THE AO FOR DECIDING THE ISSUE. WE THEREFORE FIND NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL ON THIS ISSUE. THE ASSESSEE THROUG H THIS MISCELLANEOUS APPLICATION IS REQUESTING THE TRIBUNAL TO REC TIFY THE ORDER OF THE TRIBUNAL WHICH AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW. THEREFORE, THE SECO ND ISSUE IN THE MISCELLANEOUS APPLICATION BY THE ASSESSEE IS DISMISSED. 6. SO FAR AS THE THIRD ISSUE IS CONCERNED, I.E. THE BENCH H AS DIRECTED THE AO TO VERIFY THE PAYMENTS MADE IN SUBSEQU ENT YEARS OUT 4 MA NO.03/PN/2015 OF PROVISION MADE ON 31-03-2006 AND THE AO IS INTERPRETI NG IT AS PAYMENT IN SUBSEQUENT TWO YEARS, WE FIND DURING THE COUR SE OF HEARING BEFORE THE TRIBUNAL IT WAS SPECIFICALLY ARGUED THAT THE WHOLE SALE PROCEEDS ARE ACCOUNTED DURING THE IMPUGNED ASSESS MENT YEAR WHICH IS SUBJECT TO LIABILITY FOR 2 YEAR WARRANTY FOR WHICH T HE PROVISIONS MADE FOR SUCH LIABILITY IS AN ALLOWABLE EXPENDITURE. THEREFORE, IT WAS HELD BY THE TRIBUNAL THAT SINCE THE ASS ESSEE HAS MADE A PROVISION FOR SUCH WARRANTY ON ESTIMATE BASIS WHIC H IS HIGHER THAN THE ACTUAL PAYMENTS IN THE 2 SUBSEQUENT YEARS, TH EREFORE, THE AO SHALL DECIDE A REASONABLE AMOUNT ON ESTIMATED LIABILITY WH ICH HAS SUBSEQUENTLY BEEN PAID BY THE ASSESSEE AND DECIDE TH E ISSUE AFRESH IN ACCORDANCE WITH LAW KEEPING IN MIND THE DECISION OF HON BLE SUPREME COURT CITED ABOVE. WE DO NOT FIND ANY APPARE NT MISTAKE IN THE ABOVE FINDING. NO OTHER MISTAKE APPARENT FROM RECORD WAS BROUGHT TO OUR NOTICE BY THE LD. COUNSEL FOR THE ASSES SEE. SINCE ACCORDING TO US THERE IS NO APPARENT MISTAKE IN THE ORD ER OF THE TRIBUNAL, THEREFORE, WE FIND NO MERIT IN THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE TO REMOVE THE CONFUSION FROM TH E MIND OF THE AO. ACCORDINGLY, THE THIRD ISSUE RAISED BY THE ASSES SEE IN THE MISCELLANEOUS APPLICATION IS ALSO DISMISSED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 10-07-2015. SD/- SD/- ( SUSHMA CHOWLA ) ( R.K. PANDA ) / JUDICIAL MEMBER ' / ACCOUNTANT MEMBER IQ.KS PUNE ; DATED : 10 TH JULY, 2015. LRH'K 5 MA NO.03/PN/2015 '()*+$,$* / COPY OF THE ORDER FORWARDED TO : 1. !'# / THE APPELLANT 2. / THE RESPONDENT 3. $ ( !'# ) -I, IQ.KS / THE CIT(A)-I, PUNE 4. $ -I, IQ.KS / THE CIT-I, PUNE 5. '() **+, , !'# !+, , IQ.KS / DR, ITAT, B PUNE; 6. )./ 0# / GUARD FILE. '% / BY ORDER , '' * //TRUE COPY// Y//TRUE COPY// 123 *4 +5 / SR. PRIVATE SECRETARY !'# !+,, IQ.KS / ITAT, PUNE