UDAY M GHARE, V. ASST CIT CIR 25(3),

MA 353/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1313 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 01-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: NEELAM C JADHAV
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 353/MUM/2013 (ARISING OUT OF ITA NO. 4125/MUM/2012) ASSESSMENT YEAR: 2009-10 SHRI UDAY M. GHARE 1-A, SANDESH BHAVAN, BAJAJ CROSS, RD. KANDIVALI (W) MUMBAI- 67 PNR:AAKPG 5305 N VS. ACIT CIR- 25(3) C-11, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX. BANDRA (E) MUMBAI-51 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. SHIVRAM & SMT. NEELAM C. JADHAV RESPONDENT BY : SHRI M.L PERUMAL DATE OF HEARING : 20.12.2013 DATE OF PRONOUNCEMENT : 20.12.2013 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE ON 01.10.2013 U/S 254 CLAUSE 2 OF THE INCOME TAX ACT SEEKING RECTIFICATIO N WITH REFERENCE TO GROUNDS NO. 1 & 2 OF APPEAL ITA NO. 4125/MUM/2012 FOR THE ASSESSMENT YEAR 2009-10, WHICH HAS BEEN ADJUDICATED BY US VIDE ORDER DATED 19.07.2013. 2. DURING THE PROCEEDING BEFORE US, SHRI/DR.K.SHIVA RAM, THE LD.COUNSEL FOR THE ASSESSEE HAS BROUGHT OUR ATTENTION TO THE MISCELLAN EOUS APPLICATION AND STATED THAT THERE IS NEED FOR MAKING A COUPLE OF RECTIFICATIONS IN THE SAID ORDER OF THE TRIBUNAL DATED 19.07.2013. THE IMPUGNED RECTIFICATIONS ARE R EQUIRED TO BE DONE QUA THE GROUNDS NO. 1 & 2 OF THE APPEAL RELATING TO THE ADJUDICATIO N OF THE ISSUE ON THE ADDITION MADE M.A. NO. 353/MUM/2013 (ARISING OUT OF ITA NO. 4125/MUM/2012) SHRI UDAY M. GHARE ASSESSMENT YEAR: 2009-10 2 ON ACCOUNT OF METHOD OF ACCOUNTING AND VALUATION OF THE CLOSING STOCK. THE DETAILS OF RECTIFICATIONS AND THE DECISIONS ARE GIVEN IN THE S UCCEEDING PARAGRAPHS. 3. IT IS THE SUBMISSION OF THE ASSESSEE THAT THE AS SESSEE IN THE APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL HAS STATED THAT THE ASSESSEE HAS BEEN CONSISTENTLY FOLLOWING THE METHOD OF ACCOUNTING IN VALUING THE C LOSING STOCK ON THE BASIS OF AVERAGE PRICE OVER OPENING STOCK AND PURCHASES SINCE THE BE GINNING WHICH IS REFLECTED IN PARA 4 OF THE SAID ORDER OF THE TRIBUNAL DATED 19.07.2013. IN THIS CONNECTION, THE COUNSEL FOR THE ASSESSEE HAS STATED THAT THE AO HIMSELF HAS ACC EPTED THE AVERAGE COST METHOD IN THE EARLIER YEARS. HOWEVER, IT WAS NOT THE SUBMISSI ON OF THE ASSESSEE BEFORE THE TRIBUNAL THAT THE AO HAS ACCEPTED THE SAME IN THE S UBSEQUENT YEARS. THE TRIBUNAL, IN PARA 5, WHILE ADJUDICATING THE ISSUE, CONTRARY TO T HE FACTS HAS OBSERVED THAT THE AO HAS HIMSELF ACCEPTED THE AVERAGE COST METHOD IN THE SUB SEQUENT YEARS ALSO. IT IS IN FACT THAT SIMILAR ADDITIONS MADE IN THE SUBSEQUENT YEAR, NAMELY 2010-11 HAS BEEN PENDING BEFORE THE LD.CIT(A). THEREFORE, LEARNED COUNSEL HA S SOUGHT FOR RECTIFYING THE MISTAKE APPARENT ON THE RECORD BY DELETING THE WORDS AS WE LL AS IN THE SUBSEQUENT YEARS AND INTERVENING PERIOD APPEARING IN PARA 5 OF THE SAI D ORDER. AFTER CONSIDERING THE SUBMISSION OF THE LD.COUNSEL, THE PAPER BOOK AVAILA BLE ON THE RECORD AND THE BRIEF NOTE FILED BY THE ASSESSEE DURING THE COURSE OF THE APPE LLATE PROCEEDINGS, WE ARE OF THE CONSIDERED VIEW THAT THOUGH THE OBSERVATION OF THE TRIBUNAL IN THE ORDER DATED 19.07.2013 HAS CORRECTLY OBSERVED THAT THE AO HAS A CCEPTED THE AVERAGE COST METHOD IN THE EARLIER YEARS, THE TRIBUNAL HAS MISTAKENLY O BSERVED THAT THE SAME IS ACCEPTED BY THE AO IN THE SUBSEQUENT YEARS ALSO. HAVING NOTED T HAT THE SAID MISTAKE APPEARING IN THE ORDER OF THE TRIBUNAL IS A MISTAKE APPARENT ON THE FACE OF THE RECORD WHICH IS RECTIFIABLE AND THE RECTIFICATION IN ANY WAY, IN CO NSEQUENCE WILL NOT ALTER/MODIFY THE EARLIER ADJUDICATION, WE HEREBY DELETE THE WORDS A S WELL AS IN THE SUBSEQUENT YEARS APPEARING AT 4 TH LINE FROM THE LAST LINE & THE SAME AGAIN APPEARING AT THE LAST LINE IN PAGE 4 (PARA 5) AND ALSO THE WORDS INTERVENING PER IOD APPEARING IN THE 1 ST LINE AT PAGE 5 OF THE ORDER. ACCORDINGLY, THE ORDER OF THE TRIBU NAL DATED 19.07.2013 IS MODIFIED. M.A. NO. 353/MUM/2013 (ARISING OUT OF ITA NO. 4125/MUM/2012) SHRI UDAY M. GHARE ASSESSMENT YEAR: 2009-10 3 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF DECEMBER 2013. SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 20.12.2013 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR F BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.