Shri Anjanevalu Jayapal, Chennai V. ITO, Non Corporate Ward-10(2), Chennai

MA 36/CHNY/2020

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8660 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-11-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 10-11-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 23-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income
• Section: 254(2); 48

Judgement Text

आयकर अपीलȣय अͬधकरण, ‘बी’ Ûयायपीठ, चेÛनई IN THE INCOME TAX APPELLATE TRIBUNAL , ‘B’ BENCH, CHENNAI Įी वी. द ु गा[ राव, ÛयाǓयक सदèय एवं Įी जी. मंज ु नाथ, लेखा सदèय के सम¢ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER AND SHRI G.MANJUNATHA, ACCOUNTANT MEMBER Misc. Application Nos. 35 & 36/Chny/2020 [In ITA Nos. 48 & 49/Chny/2018] (Ǔनधा[रणवष[ / Assessment Years: 2013-14 & 2014-15) Shri. Anjaneyalu Jayapal, Old No. 2/56, New No. 3/51, T.K. Pattu Gandhi Street, Redhills, Chennai – 600 052. Vs The Income Tax Officer, Non-Corporate Ward -10(2), Chennai – 600 034. PAN : AHFPJ-3481-Q (ᮧाथᭅक /Petitioner) (Ĥ×यथȸ/Respondent) ᮧाथᭅक कȧ ओरसे/ Petitioner by : Mr. Murugappa Boopaty, Advocate Ĥ×यथȸ कȧ ओरसे/Respondent by : Mr. P. Sajit Kumar, JCIT स ु नवाई कȧ तारȣख/Date of hearing : 11.11.2022 घोषणा कȧतारȣख /Date of Pronouncement : 11.11.2022 आदेश / O R D E R PER G. MANJUNATHA, AM: These two Miscellaneous Applications filed by the assessee u/s. 254(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) against the order of the Tribunal in ITA Nos. 48 & 49/Chny/2018 dated 21.11.2019 and pertains to assessment years 2013-14 & 2014-15. 2. The assessee has narrated facts and mistakes stated to be apparent on record from the order of the Tribunal in ITA Nos. 48 & 49/Chny/2018 :-2-: MA Nos: 35 & 36/Chny/2020 dated 21.11.2019 for both the assessment years and therefore, for the sake of brevity contents of the Miscellaneous Application filed by the assessee for the assessment year 2013-14 are reproduced as under: 1. The Appellant wishes to bring to the notice of the Hon'ble Tribunal certain arithmetical error that has crept into the conclusions/findings of the order of the Hon'ble Tribunal which are mistakes apparent from record and which require rectification of such mistakes, as envisaged u/s 254(2) of the I.T. Act. 2. The appellant most respectfully submits that the above prayer for rectification is made within six months from the end of the month in which the order was passed as required statutorily. 3. The appellant is grateful to both the CIT(A) and the Hon'ble Tribunal for accepting the asses see· s explanation regarding the nature and source of the cash deposited as arising from the business receipts of the assesse's son shri. J.Sriram. But unfortunately in the order dated 21st November 2019, the Hon'ble Tribunal observed in para 9 in page 6 of the order that "the findings of the Id. Commissioner of Income Tax (Appeals) that cash deposits in the savings bank account are more than the business receipt shown in the name of his son remains uncontroverted". 4. It is humbly submitted that the sum deposited in the said savings bank account with Karnataka Bank was only a sum of Rs. 1,11,89,539/- whereas the business receipts of the son was Rs.13, 79,85,474/- as evidenced by the copy of the Profit and Loss account Exhibit-I (Page 1 to 4 of Paper Book) enclosed to the Return of Income.( Copy of P&L Account , the assessment order Exhibit-2 (Page 5 of Paper Book), orders of the Ld.CIT(A) Exhibit-3 (Page 7 of Paper Book) and the Hon 'ble Tribunal (Exhibit -4) in the case of the son evidencing the business receipt of RS. 13,79,85,474/- is Enclosed) . As per the said assessment order and the orders of the ld.CIT(A) and the Hon'ble Tribunal the income of the son is estimated at 10% of the turnover of Rs. 13,79,85,474 only and resulting in a total income of RS.1,37,98,550/- being brought to tax in his hand. 5. Similarly the Hon'ble Tribunal observed in the said order that the findings of the lower authorities that savings bank account was not jointly held with his wife Mrs. Shenbagavalli and his son J. Sriram also remain uncontroverted." 6. Copy of the letter from Karnataka Bank dated 17-2-2017 (Exhibit 5 Page 16 of Paper Book for A Y 2014-15) as furnished to the Ld. CIT(A), was also submitted to the Hon’ble Tribunal. 7. For the sake of convenience one more copy evidencing the joint holding of the account by the assessee, his wife and son is produced (Exhibit-6). It is further submitted that evidence placed in the paper set (in the form of spiral bound Paper book) and the appellant's detailed explanation in the form of :-3-: MA Nos: 35 & 36/Chny/2020 written submissions (Exhibit -7 Acknowledgement by the AR of IT AT, Chennai) during hearings before the Hon'ble Tribunal have been overlooked by the Hon'ble Tribunal while passing the said order/ coming to the said findings which are mistakes apparent from record. 8.In this context, reliance is placed in the decision of the Rajasthan High Court as held in the case of CIT-vs- Devilal soni (2004) 271 ITR 5 66 Raj ( copy enclosed).” 3. The Ld. Counsel for the assessee referring to Para 9 of the Tribunal order dated 21.11.2019 submitted that, Tribunal has recorded a finding contrary to evidence filed by the assessee in light of certificate issued by Branch Manager of Karnataka Bank Limited, Anna Nagar West Branch, and said findings constitutes a mistake apparent on record which can be rectified u/s. 254(2) of the Act. Therefore, the order of the Tribunal dated 21.11.2019 needs to be recalled. 4. The ld. DR on the other hand supporting the order of the Tribunal submitted that, the assessee has failed to make out a case on prima facie mistake apparent on record from the order of the Tribunal and what is sought through this Miscellaneous Applications is review the decision rendered by the Tribunal in the given facts and circumstances of the case, and thus, the Miscellaneous Applications filed by the assessee may be dismissed. :-4-: MA Nos: 35 & 36/Chny/2020 5. We have heard both the parties and considered relevant contents of Miscellaneous Applications filed by the assessee for both the assessment years and we find that the Tribunal in the common order dated 21.11.2019 in ITA No. 48 & 49/Chny/2018 has recorded a categorical finding in para 9 at page 6 that, the findings of the ld. Commissioner of Income Tax (Appeals) that cash deposits in the saving bank account are more than the business receipts shown in the name of his son remains uncontroverted and also the saving bank account was not held jointly with his wife Mrs. J. Shenbagavalli and his son J. Sriram. We find that the findings recorded in para 9 of Tribunal order dated 21.11.2019 is contrary to evidence filed by the assessee which is available on record and as per said evidence, the Karnataka Bank Limited, Anna Nagar West Branch has certified that the bank account in which the assessee has made cash deposits, is held in joint name of assessee and his wife J. Shenbagavalli and his son J. Sriram. We further noted that the evidence filed by the assessee in the form of financial statement also clearly establishes the fact that the turnover declared in the proprietary concern of Shri. J. Sriram, son of the assessee is over and above the amount of cash deposits. Since, the finding recorded by the Tribunal on both aspects is contrary to evidence available on record, we are of the considered view that said finding of the Tribunal constitutes mistake apparent on record which can be rectified u/s. 254(2) of the Act. Thus, we recall the order of the Tribunal in ITA No. 48 & :-5-: MA Nos: 35 & 36/Chny/2020 49/Chny/2018 dated 21.11.2019 for both the assessment years and direct the Registry to fix these appeals for hearing in due course with an intimation to both the parties 6. In the result, Miscellaneous Applications filed by the assessee for both the assessment years are allowed. Order pronounced in the open court on 11 th November, 2022 Sd/- Sd/- (वी. द ु गा[ राव) (जी. मंज ु नाथ) (V.Durga Rao) (G.Manjunatha) ÛयाǓयक सदèय /Judicial Member लेखा सदèय / Accountant Member चेÛनई/Chennai, Ǒदनांक/Dated : 11 th November, 2022 JPV आदेश कȧ ĤǓतͧलͪप अĒेͪषत/Copy to: 1. Appellant 2. Respondent 3.आयकर आय ु Èत (अपील)/CIT(A) 4. आयकर आय ु Èत/CIT 5. ͪवभागीय ĤǓतǓनͬध/DR 6. गाड[ फाईल/GF