Sailesh Kumar Agarwal, Hyd, Hyderabad V. DCIT, Circle-5(1), Hyd, Hyderabad

MA 37/HYD/2016

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5428 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-09-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 12-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A SITHARAMA RAO
• Section: 68; 154

Judgement Text

MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO.37/HYD/2016 (ARISING OUT OF ITA NO.1211/HYD/2011) (ASSESSMENT YEAR: 2008-09) SRI SAILESH KUMAR AGARWAL HYDERABAD PAN: AAYPA 8556 F VS ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 5(1) HYDERABAD FOR ASSESSEE: SRI A. SRINIVAS FOR REVENUE: SRI A. SITHARAMA RAO, DR O R D E R PER SMT. P. MADHAVI DEVI, J.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE U/S 254(2) OF THE I.T. ACT SEEKING DIRECTION/CLARIF ICATION IN THE ORDER OF THE TRIBUNAL DATED 20.07.2012 2. IN THE ABOVE APPLICATION, IT IS STATED THAT THE ASSESSEE, WHO IS IN THE BUSINESS OF TRADING IN JEWELLERY, HAD FLOATED A LUCKY DRAW AND MONTHLY GOLD SCHEME CONSISTING OF 250 MEMB ERS AND THE SCHEME WAS FOR A DURATION OF 20 MONTHS. IT IS S UBMITTED THAT THE ASSESSEE HAD SHOWN THE MEMBERSHIP AMOUNT RECEIV ED AS SUNDRY CREDITORS AND REFLECTED THE SAME AS SALES IN THE YEAR IN WHICH THE LUCKY DRAW GETS CONCLUDED. BUT DURING THE A.YS 2006- 07 AND 2008-09, THE AO ASSESSED THE RECEIPT OF THE MEMBERSHIP FEE DURING THE PARTICULAR YEAR AS CASH CREDITS AND TREATED IT AS ASSESSEES INCOME U/S 68 OF THE ACT AND IT WAS CHAL LENGED BEFORE DATE OF HEARING : 16.09.2016 DATE OF PRONOUNCEMENT : 30.09.2016 MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 2 OF 3 THE CIT (A) AND ALSO BEFORE THE ITAT WHEREIN THE AD DITION OF RS.43,99,060 ON ACCOUNT OF MONIES COLLECTED AS PART OF ASSESSEES MONTHLY GOLD SCHEME LUCKY DRAW, WAS CONFIRMED. 3. IN THIS M.A., IT IS STATED THAT AT THE END OF TH E INSTALLMENT, THE MONEYS WERE TRANSFERRED TO THE SAL ES A/C AND THE SAID AMOUNTS WERE OFFERED TO TAX IN THE RELEVANT A. YS. IT IS SUBMITTED THAT BY VIRTUE OF THE ITAT ORDER, IT IS R ESULTING IN DOUBLE TAXATION OF THE SAME AMOUNT TWICE CAUSING LOSS AND HARDSHIP TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAD FI LED APPLICATIONS U/S 154 OF THE I.T. ACT BEFORE THE AO TO GIVE CONSEQUENTIAL RELIEF IN THE RELEVANT A.YS BY REDUCIN G THE RESPECTIVE AMOUNT FROM THE SALES. HE SUBMITTED THAT THE SAID A PPLICATION IS PENDING BEFORE THE RESPECTIVE AOS. HE THEREFORE, PR AYED FOR A CLARIFICATION FROM ITAT THAT IN THE YEARS WHEN THE AMOUNTS ARE TRANSFERRED TO SALES A/C, THE SAME SHOULD BE REDUCE D FOR COMPUTATION PURPOSES, AS THE SAME HAS ALREADY BEEN SUBJECTED TO TAX IN THE INITIAL YEAR OF THE INSTALMENT SCHEME. 4. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE ORDERS OF THE TRIBUNAL AND SUBMITTED THAT NO FURTHE R CLARIFICATION IS NECESSARY. HE ALSO SUBMITTED THAT FURTHER DIREC TION IN RESPECT OF THE A.YS NOT BEFORE THE TRIBUNAL CANNOT BE GIVEN BY THE TRIBUNAL AND THAT SUCH A DIRECTION BY THE TRIBUNAL WOULD RESULT IN THE REFUND OF THE TAX ON THE ACCEPTED AND RETURNED INCOME OF THE ASSESSEE WHICH IS NOT PERMISSIBLE. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE TRIBUNAL HAS CONFIRMED THE ADDITION OF RS.43,99,060 AS THE INCOME OF THE A.Y 2008-09. CONSE QUENT TO MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 3 OF 3 THE SAME, THE SALES OFFERED BY THE ASSESSEE IN THE SUBSEQUENT A.YS SHOULD BE REDUCED, BUT IF THE ASSESSEE HAS VOLU NTARILY OFFERED THE SAME, THE AO CANNOT REFUND THE TAX PAID ON ADMI TTED INCOME. FURTHER, AS RIGHTLY POINTED OUT BY THE LEARNED DR, T HIS TRIBUNAL CANNOT GIVE A DIRECTION FOR THE A.YS NOT BEFORE IT. THEREFORE, IN OUR OPINION, IT WOULD BE IN THE INTEREST OF JUSTICE TO ADD ONLY THE FOLLOWING SENTENCE AT THE END OF PARA 18 OF THE TRI BUNALS ORDER IN ITA NO.525 & 1211/HYD/2011 DATED 20.07.2012. THE ASSESSEE SHALL, HOWEVER, BE AT LIBERTY TO MAKE A CLAIM FOR REDUCTION OF SALES IN THE YEARS IN WHICH IT HAS OFFERED TO TAX AND THE AO SHALL CONSIDER THE SAME O N MERITS IN ACCORDANCE WITH LAW. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER, 2016. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD, DATED 30 TH SEPTEMBER, 2016. VINODAN/SPS COPY TO: 1 SHRI SHAILESH KUMAR AGARWAL, 5-9-273 TO 291/A-19 & 20 BASHEERBAGH, HYDERABAD 2 DY. COMMISSIONER OF INCOME TAX, CIRCLE 5(1) AAYAK AR BHAVAN, BASHEERBAGH, HYDERABAD 3 CIT (A)-V HYDERABAD 4 CIT IV HYDERABAD 5 THE DR, ITAT HYDERABAD 6 GUARD FILE BY ORDER