ITO, Eluru V. NAKULA TIRUMALA RAO, Eluru

MA 3/VIZ/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5026 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 7 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-03-2016
• Assessment Year: misc
• Appeal Filed On: 20-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R GOVINDARAJAN
• Keywords: Rectification of order
• Section: 143(3)

Judgement Text

MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.P. NO.2/VIZAG/2015 (ARISING OUT OF I.T.A.NO.118 TO 120/VIZAG/2012 ( / ASSESSMENT YEARS: 2004-05, 2006-07 & 2007-08) ITO, WARD - 1, ELURU VS. NUKALA VENKATA RAMA DAS, ELURU [PAN: AHEPV 6582V ] ( % / APPELLANT) ( &'% / RESPONDENT) M.P. NO.3/VIZAG/2015 (ARISING OUT OF I.T.A.NO.121 TO 123/VIZAG/2012 ( / ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-09) ITO, WARD - 1, ELURU VS. NUKALA TIRUMALA RAO, ELURU [PAN: AIYPN7078D ] ( % / APPELLANT) ( &'% / RESPONDENT) M.P. NO.9 TO 11/VIZAG/2016 (ARISING OUT OF I.T.A.NO.118 TO 120/VIZAG/2012 ( / ASSESSMENT YEARS: 2004-05, 2006-07 & 2007-08) ITO, WARD - 1, ELURU VS. NUKALA VENKATA RAMA DAS, ELURU ( % / APPELLANT) ( &'% / RESPONDENT) MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 2 M.P. NO.12 TO 14/VIZAG/2016 (ARISING OUT OF I.T.A.NO.121 TO 123/VIZAG/2012 ( / ASSESSMENT YEARS: 2006-07, 2007-08 & 2008-09) ITO, WARD - 1, ELU RU VS. NUKALA TIRUMALA RAO, ELURU ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI R. GOVINDARAJAN, DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 25.11.2016 / DATE OF PRONOUNCEMENT : 28.11.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE MISCELLANEOUS PETITIONS FILED BY THE REVENUE REQUESTING RECTIFICATION OF ORDER PASSED BY THIS TRIBUNAL IN I TA NOS.118 TO 120/VIZAG/2012 AND ITA NOS.121 TO 123/VIZAG/2012 DA TED 2.4.2014 FOR THE ASSESSMENT YEARS 2004-05, 2006-07, 2007-08 & 20 08-09, IS HEARD AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. DURING THE COURSE OF HEARING, THE LD. D.R. SUBMI TTED THAT ON GOING THROUGH THE ORDER PASSED BY THE TRIBUNAL, IT IS NOT ICED THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL IN ESTIMATING NET PROFIT FROM THE BUSINESS OF PISCI CULTURE @ 1%, IGNORING THE FACT T HAT ONE OF THE TWO MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 3 APPELLANTS SRI NUKALA TIRUMALA RAO HAS ADMITTED NET PROFIT OF 1.2% ON THE TOTAL TURNOVER. SINCE, INCOME ADMITTED BY THE ASSESSEE HIMSELF IS MORE THAN THE INCOME FINALLY DETERMINED BY THE ITAT , IT CLEARLY CONSTITUTES A MISTAKE APPARENT FROM RECORD, WHICH I S CLEARLY AMENABLE FOR RECTIFICATION, WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS 'THE ACT'). 3. THE LD. A.R. FOR THE ASSESSEE, ON THE OTHER HAND FAIRLY ACCEPTED THAT THE MISTAKE POINTED OUT BY THE LD. D.R. IN THE CASE OF N. TIRUMALA RAO IS CORRECT IN AS MUCH THE ASSESSEE HIMSELF HAS ADMITTED 1.2% NET PROFIT FROM HIS BUSINESS. IN SO FAR AS SRI NUKALA VENKATA RAMA DAS IS CONCERNED, THE ASSESSEE HAS ADMITTED INCOME WHICH I S LESS THAN 1% ESTIMATED BY THE ITAT, THEREFORE, THERE IS NO MISTA KE IN THE ORDER OF THE ITAT, IN SO FAR AS ESTIMATION OF NET PROFIT IN THE CASE OF N. VENKATA RAMA DAS. 4. HAVING HEARD BOTH THE PARTIES AND CONSIDERED MAT ERIALS ON RECORD, WE FIND THAT THE COORDINATE BENCH OF THIS TRIBUNAL, VIDE ITA NOS.118 TO 120/VIZAG/2012 AND 121 TO 123/VIZAG/2012 HAS DIRECT ED THE A.O. TO DETERMINE THE INCOME OF THE ASSESSEE AT 1% OF TURNO VER FOR ALL ASSESSMENT YEARS. WE FIND THAT IN THE CASE OF SRI N UKALA TIRUMALA RAO, THE ASSESSEE HIMSELF HAS ADMITTED NET PROFIT OF 1.2 % ON TOTAL TURNOVER. MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 4 WHILE DISPOSING APPEAL, THE BENCH, BY OVERSIGHT DID NOT CONSIDER THE PROFIT ADMITTED BY ONE OF THE APPELLANTS, SRI N. TI RUMALA RAO, WHEREIN, THE ASSESSEE HIMSELF ADMITTED NET PROFIT OF 1.2%. THEREFORE, WE ARE OF THE VIEW THAT THE SAID MISTAKE IS A MISTAKE APPAREN T FROM THE RECORD, WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE ACT. BY EXERCISING POWERS VESTED WITH THE TRIBUNAL U/S 254(2) OF THE ACT AND ALSO RELIED UPON THE JUDGEMENT OF HONBLE SUPREME COURT, IN THE CASE OF HONDA SIEL POWER PROJECTS LTD. (2007) 295 ITR 466, THE ORDER PASSED BY THE TRIBUNAL IN ITA NOS.118 TO 120/VIZAG/2012 & 121 TO 123/VIAG/201 2 HAVE BEEN RECALLED, HEARD AND DISPOSED OFF AS UNDER. 5. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS INVOLVED IN THE BUSINESS OF PISCI CULTURE HAS FILED HIS RETURN OF I NCOME IN RESPONSE TO NOTICE U/S 153C OF THE ACT. THE ASSESSMENT WAS COM PLETED U/S 143(3) R.W.S. 153C OF THE ACT, DETERMINING TOTAL INCOME BY ESTIMATING NET PROFIT OF 8.4% ON TOTAL TURNOVER. THE ASSESSEE CARRIED TH E MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE CIT(A) F OR THE REASONS RECORDED IN HIS ORDER SCALED DOWN THE ESTIMATION OF NET PROF IT TO 2% OF TOTAL TURNOVER. ON FURTHER APPEAL BEFORE THE ITAT, THE I TAT VIDE ITS ORDER DATED 2.4.2014 HAS DIRECTED THE A.O. TO DETERMINE T HE INCOME OF THE ASSESSEE AT 1% ON TOTAL TURNOVER. THE LD. D.R. AT THE TIME OF HEARING MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 5 SUBMITTED THAT THE INCOME FINALLY ASSESSED BY THE A .O. CONSEQUENT TO THE ORDER OF THE ITAT, IS BELOW THE INCOME RETURNED BY THE ASSESSEE. THE LD. A.R. FOR THE ASSESSEE HAS FAIRLY ACCEPTED T HAT IN THE CASE OF SRI NUKALA VENKATA RAMA DAS, THE INCOME FINALLY ASSESSE D BY THE A.O. CONSEQUENT TO ORDER OF THE ITAT IS MORE THAN THE IN COME RETURNED BY THE ASSESSEE, HOWEVER, IN THE CASE OF SRI NUKALA TI RUMALA RAO, THE INCOME ASSESSED BY THE A.O. IS BELOW THE INCOME RET URNED BY THE ASSESSEE. 6. HAVING HEARD BOTH THE SIDES AND CONSIDERED MATER IALS ON RECORD, WE FIND THAT IN THE CASE OF SRI NUKALA VENKATA RAMA DAS, THE INCOME FINALLY DETERMINED BY THE A.O. CONSEQUENT TO THE OR DER OF ITAT IS MORE THAN THE INCOME RETURNED BY THE ASSESSEE. THEREFOR E, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE I TAT AND HENCE IT DOES NOT REQUIRE ANY RECTIFICATION U/S 254(2) OF THE ACT . IN SO FAR AS SHRI NUKALA TIRUMALA RAO, WE FIND THAT THE INCOME FINALL Y DETERMINED BY THE A.O. IS BELOW THE INCOME RETURNED BY THE ASSESSEE. THEREFORE, CONSIDERING THE FACT THAT THE INCOME FINALLY ASSESS ED IS BELOW THE INCOME RETURNED BY THE ASSESSEE, WE MODIFY THE DIRECTIONS GIVEN BY THE ITAT TO THE EFFECT THAT THE INCOME FINALLY DETERMINED BY TH E A.O. CONSEQUENT TO MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 6 THE DIRECTIONS OF THE ITAT SHOULD NOT GO BELOW THE INCOME RETURNED BY THE ASSESSEE. 7. IN SO FAR AS MISCELLANEOUS PETITION NOS.2 & 3/VI ZAG/2015 ARE CONCERNED, THE LD. COUNSEL FOR THE ASSESSEE AND REV ENUE BROUGHT TO THE NOTICE OF THE BENCH THAT THE REVENUE HAS FILED COMB INED MISCELLANEOUS PETITIONS FOR ALL THE ASSESSMENT YEARS, WHICH WAS LATER RECTIFIED BY FILING SEPARATE MISCELLANEOUS PETITIONS FOR EACH OF THE AS SESSMENT YEAR SEPARATELY. ACCORDINGLY, MISCELLANEOUS PETITION NO S.2 & 3/VIZAG/2015 ARE NOT MAINTAINABLE. WE FIND THAT THE REVENUE HAS FILED A COMBINED MISCELLANEOUS PETITION FOR EACH OF THE ASSESSEE FOR ALL THE ASSESSMENT YEARS. WE FURTHER OBSERVED THAT IN THE PREVIOUS HEA RING, THE BENCH HAS POINTED OUT THE SAID MISTAKE AND DIRECTED THE REVEN UE TO FILE SEPARATE MISCELLANEOUS PETITIONS FOR EACH OF THE ASSESSMENT YEARS SEPARATELY. SINCE, THE REVENUE HAS FILED SEPARATE MISCELLANEOUS PETITIONS FOR EACH OF THE ASSESSMENT YEARS, THE EARLIER MISCELLANEOUS PET ITIONS FILED BY THE REVENUE BECOME INFRUCTUOUS AND HENCE, THE SAME ARE DISMISSED AS NOT MAINTAINABLE. 8. IN THE RESULT, THE MISCELLANEOUS PETITIONS FILED BY THE REVENUE IN MP NOS.2&3/VIZAG/2015 ARE DISMISSED , M.P. NOS.9, 10 & MP NOS.2&3/VIZAG/2015 & 9 TO 14/VIZAG/2016 NUKALA VENKATA RAMA DAS, ELURU 7 11/VIZAG/2016 ARE DISMISSED AND M.P. NOS.12, 13 & 14/VIZAG/2016 ARE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 28 TH NOV16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ! /VISAKHAPATNAM: % /DATED : 28.11.2016 VG/SPS )! *! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SHRI NUKALA VENKATA RAMA DAS, D. NO.7E-4-1/5, MEKARAJU STREET, MOTEPALLIVARI LANE, EASTERN STREET , ELURU-1, 2. / THE APPELLANT SHRI NUKALA TIRUMALA RAO, D.NO.2 3A-6-12, SANKARA MATTAM STREET, RAMA CHANDRA RAO PETA, LAXMIKALA BEA UTY PARLOUR, ELURU-534 002. 2. / THE RESPONDENT THE ITO, WARD-1, ELURU 3. + / THE CIT, VISAKHAPATNAM 4. + ( ) / THE CIT (A), VISAKHAPATNAM 5. ! . , . , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , ! / ITAT, VISAKHAPATNAM