PRAKASH AUTO, ULHASNAGAR V. COMMISSIONER OF INCOME TAX 23, MUMBAI

MA 396/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6952 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 10-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M N NANDGAONKAR
• Keywords: Business income; Rectification of order; Reasonable cause; Notional interest; Revised return
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) MA NO. 396/MUM/2017 (ITA NO. 4309/MUM/2013) ASSESSMENT YEAR: 2008 - 09 PRAKASH AUTO PLOT NO. 4, BEHIND SAIBABA MANDIR, KALYAN AMBERNATH ROAD, ULHASNAGAR - 421003. VS. THE CIT - 23 C - 10, 3 RD FLOOR, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051. PAN NO. AAAFP6436H APPELLANT RESPONDENT ASSESSEE BY : MR. M.N. NANDGAONKAR , AR REVENUE BY : MR. SAURABH KUMAR RAI, DR DATE OF HEARING : 20/04 /2018 DATE OF PRONOUNCEMENT : 18/07/2018 ORDER PER N.K. PRADHAN, AM BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEEKS RECALL OF THE ORDER OF THE TRIBUNAL DATED 13.02.2017 IN ITA NO. 4309/MUM/2013 FOR THE ASSESSMENT YEAR (AY) 2008 - 09. 2. BEFORE US, THE LD. COUNSEL OF THE ASSESSEE SUBMITS THAT DURING THE COURSE OF HEARING, A PAPER BOOK (P/B) CONTAINING 98 PAGES WAS PLACED BEFORE THE TRIBUNAL AND RELIANCE WAS PLACED ON PAGE NO. 56 AND 57 OF THE P/B, WHICH SHOWS THE COMPUTATION OF INCOME FROM BUSINESS OR PROFESSION AND FORM PART OF THE COPY OF THE ORIGINAL RETURN FILED BY THE ASSESSEE FOR THE IMPUGNED ASSESSMENT YEAR FILED ON 30.09.2008. IT IS STATED, THAT THE ASSESSEE HAD COMPUTED THE INCOME FROM BUSINESS OR PRAKASH AUTO PLOT M.A. NO. 396/MUM/2017 2 PROFESSION, WHICH WAS A LOSS AT RS.78,45,057/ - IN THE SCHEDULE BP PROVIDED FOR THE SAID COMPUTATION AND AS SUCH NO FRESH CLAIM WAS LODGED BY THE ASSESSEE BEFORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDINGS BY FILING REVISED COMPUTATION OF INCOME. FURTHER IT IS STATED THAT DURING THE COURSE OF ARGUMENT THAT WHILE TYPING THE FIGURE AT SERIAL NO. 37 IN SCHEDULE BP, THE F IGURE OF LOSS WAS TYPED AT RS.25,45,057/ - INSTEAD OF THE CORRECT FIGURE OF RS.78,45,057/ - AND AS PER SERIAL NO. 36, THE FIGURE ERRONEOUSLY TYPED AT SERIAL NO. 37 IS CARRIED TO SERIAL NO. 2 IN PART B - TI CONTAINING THE COMPUTATION OF TOTAL INCOME IN THE E - RE TURN OF THE ASSESSEE. THE SAME IS AT PAGE 51 OF THE P/B. THE LD. COUNSEL FURTHER SUBMITS THAT IN VIEW OF THE FIGURES UPLOADED IN THE E - RETURN, WHICH IS PART OF THE RECORDS, NO NEW CLAIM WAS MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT. THUS IT IS SUBMITTED THAT THE ORDER OF THE TRIBUNAL BE RECALLED AND SET ASIDE. 3 . ON THE OTHER HAND, THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL AND THEREFORE, THE MA FILED BY THE ASSESSEE BE DISMISSED. 4 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATE RIALS ON RECORD. THE REASONS FOR OUR DECISION ARE GIVEN BELOW. IN THE INSTANT CASE, THE COMMISSIONER OF INCOME TAX ( CIT ) VIDE ORDER U/S 263 OF THE ACT DATED 28.03.2013 HAS HELD THAT (I) THE AO HAS NO AUTHORITY UNDER THE ACT TO ACCEPT THE REVISED COMPUTATIO N OF INCOME FILED DURING THE COURSE OF ASSESSMENT, (II) THE AO HAS NOT VERIFIED THE FACTS REGARDING THE ADMISSIBILITY OF SET OFF LOSS OF RS. 3,14,060/ - ON SALE OF FURNITURE AGAINST THE BUSINESS INCOME, (III) THE AO PRAKASH AUTO PLOT M.A. NO. 396/MUM/2017 3 HAS NOT VERIFIED THE FACTS RELATING TO TH E APPLICATION OF SECTION 2(22)(E) AND (IV) THE AO HAS NOT EXAMINED THE ISSUE THAT THE NOTIONAL INTEREST ACCRUED ON REFUNDABLE DEPOSITS WAS LIABLE TO BE TAXED AS ANNUAL LETTING VALUE. THUS THE CIT HAS PASSED THE ORDER U/S 263 ON THE ABOVE FOUR ISSUES INST EAD OF RESTRICTING HIMSELF TO ONE ISSUE AS ARGUED IN THE PRESENT MA. IN THE INSTANT CASE, IN THE COMPUTATION OF INCOME FILED ALONG WITH THE RETURN OF INCOME, THE ASSESSEE HAD CLAIMED LOSS TO C/F RS.11,12,127/ - . IN THE REVISED COMPUTATION OF INCOME FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS CLAIMED LOSS TO C/F OF RS.48,61,095/ - . IN THE CASE OF GOETZE (INDIA) LTD. V. CIT (2006) 157 TAXMAN 1 (SC) , IT IS HELD THAT THE ASSESSEE CANNOT AMEND A RETURN FILED BY HIM BEFORE THE AO FOR MAKI NG A CLAIM FOR DEDUCTION OTHER THAN BY FILING A REVISED RETURN. THE RATIO LAID DOWN IN GOETZE (INDIA) LTD. (SUPRA) SQUARELY APPLIES TO THE INSTANT CASE. THE ABOVE FACTS HAVE BEEN CLEARLY BROUGHT OUT IN THE IMPUGNED ORDER OF THE TRIBUNAL. 4.1 THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORD ER PASSED U/S 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES, 1963 AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT I T HAD A REASONABLE CAUSE PRAKASH AUTO PLOT M.A. NO. 396/MUM/2017 4 FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND DECIDED EX - PARTE. THE WORDS USED IN SECTION 254(2) ARE SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE. CLEARLY, IF THERE IS A MISTAKE, THEN AN AMENDMENT IS REQUIRED TO BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRECT THAT PARTICULAR MISTAKE. THE PROVISI ON DOES NOT INDICATE THAT THE TRIBUNAL CAN RECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE I.T. ACT. THE POWER TO RECTIFY A MISTAKE U/S 254(2) CANNOT BE USED FOR REC ALLING THE ENTIRE ORDER. 4.2 WE FIND THAT THE CONTENTIONS RAISED BY THE LD. COUNSEL IN THE PRESENT MA IS ADDRESSED IN FAVOUR OF THE R EVENUE BY THE JUDGMENT OF THE HONBLE SUPREME COURT IN GOETZE (INDIA) LTD . (SUPRA). AS CAN BE SEEN FROM THE FACTUAL SCEN ARIO IN THE INSTANT CASE, THERE IS NO MISTAKE APPARENT FROM RECORD. 5. IN THE RESULT, THE MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18/07/2018. SD/ - SD/ - ( JOGINDER SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 18/07/2018 RAHUL SHARMA, SR. P.S. PRAKASH AUTO PLOT M.A. NO. 396/MUM/2017 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI