M/s. Machino Finance(p)Ltd, Kolkata V. D.C.I.T, Cir-II Kolkata,

MA 32/KOL/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0594 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-07-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 25-04-2013
• Court: TRIBUNAL
• Department Lawyers: D K RAKSHIT JCITSR
• Assessee Lawyers: S M SURANA

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , !' #! $'# #! $'# #! $'# #! $'# ] ]] ] [BEFORE HONBLE SRI K.K.GUPTA, AM & HONBLE MAHAV IR SINGH, JM] M.A..NO.32/KOL/2013 '& '& '& '& /A/O ITA NO.561/KOL/2009 $'( !)*/ ASSESSMENT YEAR : 2005-06 (,- / APPELLANT ) - !' - ( /0,- /RESPONDENT) M/S.MACHINO FINANCE (P)LTD. D.C.I.T., CIRCLE-11, KOLKATA -VERSUS- KOLKATA (PAN: AABCM 6967 G ) ,- 1 2 / FOR THE APPELLANT: SHRI S.M.SURANA, ADVOCATE /0,- 1 2 / FOR THE RESPONDENT: SHRI D.K.RAKSHIT, JCIT,SR.DR '!3 1 4 /DATE OF HEARING : 19.07.2013 5) 1 4 /DATE OF PRONOUNCEMENT : 24.07.2013. 6 / ORDER PER SHRI K.K.GUPTA, AM BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE PETI TIONER SUBMITS THAT THE TRIBUNAL BY DIRECTING THE AO TO DELETE THE ADDITION OF RS.1,00,000/- IN THE FACTS AND THE CIRCUMSTANCES OF THE ASSESSEES CASE FOR THE AO AFTER DELETING THE DISALLOWANCE OF EXPENDITURE RS.1,00,000/- ALONE WHEN THE INTENTION WAS NOT TO DISALLOW THE EXPENDITURE CLAIMED AMOUNTING TO RS.19,75,068/- WAS NOTED BY THE LD. CIT(A) IN HIS ORDER AT PARA 3.15.1 ON THE ISSUE OF INCOME FROM OT HER SOURCES WHEN THE SAID SUM OF EXPENDITURE WAS PART AND PARCEL OF THE TOTAL COMPUT ATION OF THE INCOME OF THE ASSESEE FROM BUSINESS WHICH HAD ALREADY BEEN ADDRESSED TO B Y THE LD. CIT(A) FOR COMPUTATION AS FROM CAPITAL GAINS ETC. IN SO FAR AS THE AO IN H IS ORDER HAD NOT SPECIFICALLY DISALLOWED THE CLAIM OF EXPENDITURE OF RS.19,75,068 /- WHICH THE LD. CIT(A) ON HAVING CONSIDERED THE DIFFERENT HEADS OF INCOME FOR COMPUT ATION OF ASSESSEES GROSS INCOME HELD THAT THE TOTAL INCOME EARNED BY THE ASSESSEE O N ACCOUNT OF INCOME FROM OTHER SOURCES AMOUNTED TO RS.8,35,513/-, THEREFORE REQUIR ED EXPENDITURE OF AT LEAST M.A..NO.32/KOL/2013 A/O ITA NO.561/KOL /2009 M/S.MACHINO FINANCE LTD. VS DCIT.CIR.11, KOLKATA A.YR.2005-06 2 RS.1,00,000/- TO BE ALLOWED ON ESTIMATION DETERMINI NG THE INCOME FROM OTHER SOURCES AT RS.7,35,513/-. 2. THE LD. COUNSEL FOR THE ASSESSEE THEREFORE SUBMI TTED THAT WHILE RECITING THE APPEAL AN INADVERTENT TYPOGRAPHICAL ERROR HAD CREPT AT PARAS 6 AND 7 OF THE ORDER AS INCOME OF RS.1,00,000/- IN PARAS 6 AND 7, THE FIGUR E SHOULD BE RS.18,75,068/- WHICH WAS DISALLOWED BY THE LD. CIT(A). THE LD. CIT(A) DI SALLOWED RS.1,00,000/- WHICH IS EVIDENT FROM PARA 3.15.1. PAGE 11 OF THE ORDER OF T HE LD. CIT(A). THE LD. COUNSEL THEREFORE SUBMITTED THAT A SUITABLE DIRECTION TO TH E AO BE GIVEN IN SO FAR AS THE LAST LINE IN THIS VIEW OF THE MATTER THIS GROUND OF THE ASSESSEE IS ALLOWED AND THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.1,00,000/- B E SUITABLY AMENDED IN ORDER TO GIVE THE DECISION AS THE TRIBUNAL IN THE IMMEDIATELY PRE CEDING PARAGRAPHS HAD CONSIDERED THE CLAIM OF EXPENDITURE TO BE ALLOWED IN ACCORDANC E WITH THE ORDER OF LD. CIT(A) AND THE ASSESSEE WAS IN APPEAL ONLY AGAINST THE ORDER O F THE LD. CIT(A) ENHANCING THE DISALLOWANCE OF EXPENDITURE BY REDUCING THE INCOME FROM OTHER SOURCES BY RS.1,00,000/- ONLY. 3. THE LD. DR SUBMITTED THAT THERE IS NO MISTAKE AP PARENT FROM RECORDS, IN SO FAR AS IN THE TOTALITY OF THE FACTS AS HAVE BEEN CONSID ERED BY THE TRIBUNAL WAS THE ENHANCEMENT BY THE LD. CIT(A) AFTER HAVING ADJUDICA TING ON THE VARIOUS EXPENSES CLAIMED WERE TO BE CONSIDERED BY THE LD. CIT(A) ON THE BASIS OF COMPUTATION OF THE CAPITAL GAINS ETC. HAVE BEEN DEALT WITH BY THE TRIB UNAL EARLIER. THEREFORE THIS ENHANCEMENT WAS NOT PART OF THE GROUND WHETHER BEFO RE THE LD. CIT(A) WHICH WAS PRIMARILY THE ALLOWANCE OF THE CLAIM OF NET INCOME FROM OTHER SOURCES, WHEN AS PER THE LD. COUNSEL IN THE ORDER OF THE LD. CIT(A) IN P ARA 3.15.1 ONLY A SUM OF THE RS.1,00,000/- HAS BEEN ALLOWED AS AN EXPENDITURE TO HOLD THE INCOME FROM OTHER SOURCES AT RS.7,35,513/- AND NOT AT RS.8,35,513/-. HE THEREFORE SUBMITTED THAT BY ALLOWING THE GROUND RAISED BY THE LD.COUNSEL FOR TH E ASSESSEE IN ITS FAVOUR CANNOT BE REVISITED ON THE GROUND OF A TYPOGRAPHICAL MISTAKE HAVING CREPT IN FOR HOLDING THAT A SUM OF RS.18,75,068/- BE CONSIDERED TO BE DELETED I N SO FAR AS THE AO HAD NEVER DISALLOWED THE SAME WHICH WAS THE CORE CONTENTION I N THE ORDER OF THE LD. CIT(A) AFTER M.A..NO.32/KOL/2013 A/O ITA NO.561/KOL /2009 M/S.MACHINO FINANCE LTD. VS DCIT.CIR.11, KOLKATA A.YR.2005-06 3 REDUCING THE INCOME FROM OTHER SOURCES TO BE ALLOWE D AFTER RS.1,00,000/- EXPENDITURE TO BE ALLOWED THERETO. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS RIGHTLY POINTED OUT BY THE LD. DR, KEEPI NG IN VIEW OF THE TOTALITY OF THE FACTS AND CIRCUMSTANCES NOTED BY THE TRIBUNAL ON THE APPE AL OF THE ASSESSEE AS WELL AS THE REVENUE AND ON THE BASIS OF THE IMPUGNED ORDER OF T HE LD. CIT(A) IT WAS NOT THE CASE OF THE LD. CIT(A) TO REDUCE THE INCOME FROM OTHER S OURCES BY HOLDING THE EXPENDITURE HAVING BEEN CLAIMED WHICH EXPENDITURE HAD ALREADY B EEN ALLOWED BY THE AO BUT TO HOLD THAT THE INCOME FROM OTHER SOURCES CANNOT BE E ARNED WITHOUT INCURRING OF EXPENDITURE WAS REDUCED BY DISALLOWING EXPENDITURE OF RS.1,00,000/- ONLY. IN OTHER WORDS IT WAS NOT THE CASE OF THE LD. CIT(A) WITHOUT ADHERING TO THE PROCEDURE TO BE FOLLOWED FOR ENHANCEMENT OF THE INCOME BUT WAS TO D IRECT THE AO TO CONSIDER THE EXPENDITURE TO BE INCURRED FOR EARNING INCOME FROM OTHER SOURCES AFTER HAVING ADJUDICATED THE EARNING OF INCOME FROM BUSINESS AND THE CAPITAL GAINS WHETHER ISOLATING EARNING OF INCOME FROM OTHER SOURCES WAS TO BE CONSIDERED AT A REDUCED AMOUNT WHEN THE AO COMPUTED THE INCOME TO BE TAXED WAS FROM THE NET PROFIT AS PER PROFIT AND LOSS ACCOUNT WHICH ALSO INCLUDED THE CRE DITS ON ACCOUNT OF INCOME FROM OTHER SOURCES AND CAPITAL GAINS, THEREFORE CULMINAT ING ONLY TO THE DISALLOWANCE OF RS.1,00,000/- EXPENDITURE WHEN THE TRIBUNAL AFTER H AVING DELIBERATED ON THE ISSUE HAD CATEGORICALLY DIRECTED THE AO TO DELETE THE ADDITIO N OF RS.1,00,000/-. THERE WAS NO TYPOGRAPHICAL ERROR AS POINTED OUT BY THE LD. COUNS EL IN THIS PETITION THAT THE AO WAS DIRECTED TO DELETE THE DISALLOWANCE OF RS.1,00,000/ - EXPENDITURE WHICH HE HAD ALREADY CONSIDERED ALLOWABLE IN VIEW OF THE LD. CIT(A) HAVI NG ACCEPTED THE CLAIM OF EXPENDITURE FROM OTHER INCOMES WAS NOT TO BE RE-CON SIDERED AS PER PARA 3.15.1 IN HIS ORDER. IN THIS VIEW OF THE MATTER THE ONLY MISTAKE APPARENT FROM RECORDS COULD BE THAT THE AO HAS BEEN DIRECTED TO DELETE THE ADDITION IS MODIFIED TO READ AS FOLLOWS: IN THIS VIEW OF THE MATTER THIS GROUND OF THE ASSE SSEE IS ALLOWED AND THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.1,00,000/- BE ING THE ENHANCEMENT BY THE LD. CIT(A). M.A..NO.32/KOL/2013 A/O ITA NO.561/KOL /2009 M/S.MACHINO FINANCE LTD. VS DCIT.CIR.11, KOLKATA A.YR.2005-06 4 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE ASSESSEE IS CONSIDERED AS ALLOWED AS INDICTED ABOVE. ORDER PRONOUNCED IN THE COURT ON 24.07.2013. SD/- SD/- [ #! $'#, $ ] [ . .. . . .. . , , , , ] [MAHAVIR SINGH] [ K.K.GUPTA ] JUDICIAL MEMBER AC COUNTANT MEMBER ( (( (4 4 4 4) )) ) DATE: 24.07.2013. R.G.(.P.S.) 6 1 /$$7 87)9- COPY OF THE ORDER FORWARDED TO: 1. .M/S.MACHINO FINANCE PVT. LTD., 8A, ALIPORE ROAD, K OLKATA-700027. 2 D.C.I.T., CIRCLE-11, KOLKATA 3 . CIT-IV, KOLKATA 4. CI T(A)- XI, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA 07 /$/ TRUE COPY, 6'/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES