Sh. Sudhir Kumar Singh, Agra V. I.T.O. 1(2), Agra

MA 4/AGR/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1776 (ITAT-AGRA)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 16-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RADHA RANI SHARMA
• Keywords: Earning of tax free income; Revised return
• Section: 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER M.A. NO. 04/AGRA/2014 (IN ITA NO. 172/AGRA/2012 ASSTT. YEAR : 2008-09 SHRI SUDHIR KUMAR SINGH, VS. INCOME-TAX OFFICER , 13, K.B. NAGAR, HEAD POST OFFICE, 1(2), AGRA. KHERIA MOD, AGRA. (PAN : AFBPS 2678 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NITIN SHARMA, ADVOCATE. RESPONDENT BY : SMT. RADHA RANI SHARMA, JR. DR DATE OF HEARING : 23.05.2014 DATE OF PRONOUNCEMENT OF ORDER : 23.05.2014 ORDER PER BHAVNESH SAINI, J.M.: THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION AGAINST THE ORDER OF ITAT, AGRA BENCH DATED 30.11.2012 IN ITA N O. 172/AGRA/2012 FOR THE ASSESSMENT YEAR 2008-09. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE ASSE SSEE FILED APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF LD. CIT(A)-I, AGRA DA TED 30.11.2011 FOR THE ASSESSMENT YEAR 2008-09, CHALLENGING THE ORDER U/S. 154 OF THE IT ACT. MA NO. 04/AGRA/2014 2 3. THE LD. CIT(A) OBSERVED THAT IN THE RETURN OF IN COME, NO CLAIM WAS MADE BY THE ASSESSEE FOR DEDUCTION OF HOUSING LOAN INTEREST AND IT HAS ALSO BEEN FOUND THAT HIS RETURN OF INCOME WAS PROCESSED U/S. 143(1)(A) A ND, THEREFORE, THERE WAS NO OCCASION BEFORE THE AO FOR CONSIDERING THE CLAIM OF ASSESSEE FOR DEDUCTION OF HOUSING LOAN INTEREST. LATER ON, THE ASSESSEE MADE SUCH CLAIM BY FILING THE APPLICATION U/S. 154 , BUT THE AO REJECTED HIS APPL ICATION AFTER FINDING THAT SUCH CLAIM OF DEDUCTION OF INTEREST WAS NOT MADE IN THE RETURN OF INCOME, HENCE, THERE WAS NO MISTAKE APPARENT FROM THE RECORD WHILE PROCE SSING THE RETURN U/S. 143(1)(A) OF THE IT ACT. THE LD. CIT(A) AGREED WITH THE ORDE R OF THE AO U/S. 154 BECAUSE THERE WAS NO MISTAKE IN THE ORDER OF THE AO AS NO C LAIM OF DEDUCTION OF HOUSING LOAN INTEREST WAS MADE IN THE RETURN OF INCOME. THE LD. CIT(A) FURTHER NOTED THAT IF ASSESSEE HAS NOTICED ANY MISTAKE IN HIS RETURN, COR RECT COURSE OF ACTION FOR HIM WAS TO FILE THE REVISED RETURN BY MAKING CLAIM OF DEDUC TION OF HOUSING INTEREST, BUT NO SUCH REVISED RETURN WAS FILED IN THIS CASE. THEREFO RE, THE ORDER OF THE AO U/S. 154 DATED 29.10.2010 WAS CONFIRMED AND THE APPEAL OF TH E ASSESSEE HAS BEEN DISMISSED. 4. BEFORE THE TRIBUNAL, THE LD. COUNSEL FORT THE AS SESSEE SUBMITTED THAT THOUGH THE ASSESSEE HAS SHOWN NET INCOME AT RS.4,14,270/- IN THE RETURN OF INCOME, BUT IN SCHEDULE-E, THE ASSESSEE HAS CLAIMED EXEMPT INCOME ON ACCOUNT OF INTEREST OF RS.1,50,000/-. THEREFORE, IT WAS A MISTAKE ON RECOR D OF THE AO AND THE ASSESSEE MA NO. 04/AGRA/2014 3 SHOULD BE GIVEN BENEFIT OF DEDUCTION OF RS.1,50,000 /- WHILE PROCESSING THE RETURN OF INCOME U/S. 143(1)(A) OF THE IT ACT. ON THE OTHE R HAND, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 5. THE TRIBUNAL CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND MATERIAL ON RECORD, DISMISSED THE APPEAL OF THE ASSESSEE. THE F INDINGS IN PARA 4, 4.1 & 5 ARE REPRODUCED AS UNDER : 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. SECTI ON 143(1)(A) PROVIDES THAT WHERE THE RETURN HAS BEEN M ADE U/S. 139 OR IN RESPONSE TO A NOTICE U/S. 142(1), SUCH RETURN SHALL BE PROCESSED IN THE FOLLOWING MANNER : (A). TOTAL INCOME OR LOSS SHALL BE COMPUTED AFTER M AKING FOLLOWING ADJUSTMENTS : (I). ANY ARITHMETICAL ERROR IN THE RETURN; (II). THE INCORRECT CLAIM, IF SUCH INCORRECT CLAIM IS APPARENT FROM ANY INFORMATION IN THE RETURN. 4.1 THE ASSESSEE ADMITTEDLY, FILED THE RETURN OF IN COME FOR THE ASSESSMENT YEAR UNDER APPEAL SHOWING TOTAL NET INCO ME AT RS.4,14,270/- AND THE COMPUTATION OF INCOME IS VERI FIED BY THE ASSESSEE BY APPENDING HIS SIGNATURE TO SUCH STATEME NT. THE AO PROCESSED THIS RETURN OF INCOME U/S. 143(1) ACCEPTI NG THE RETURNED TOTAL INCOME AT RS.4,14,270/-. AS PER THE ABOVE PRO VISIONS CONTAINED U/S. 143(1)(A), IT IS MANDATORY FOR THE AO TO PROCE SS THE RETURN OF INCOME AS IT IS AT THE INCOME DECLARED BY THE ASSES SEE. THERE WAS NO ARITHMETICAL ERROR IN THE RETURN OF INCOME AND NO I NCORRECT CLAIM HAS BEEN MADE. WHAT THE ASSESSEE HAS MADE A CLAIM IN AP PLICATION U/S. 154 OF THE ACT IS THAT THE INCOME OF THE ASSESSEE S HOULD BE REVISED BY ALLOWING DEDUCTION OF RS.1,50,000/- ON ACCOUNT OF I NTEREST ON HOUSING LOAN. THE ASSESSEE, HOWEVER, DID NOT MAKE ANY SUCH CLAIM OF MA NO. 04/AGRA/2014 4 DEDUCTION IN THE RETURN OF INCOME AND THE CLAIM OF DEDUCTION HAS BEEN MADE FOR THE FIRST TIME IN APPLICATION U/S. 154 OF THE IT ACT. IN SCHEDULE-E OF THE RETURN, THE ASSESSEE HAS NOT CLAR IFIED WHETHER THE ASSESSEE MADE A CLAIM OF DEDUCTION ON ACCOUNT OF IN TEREST ON HOUSING LOAN. THEREFORE, IT IS NOT THE DUTY OF THE AO TO PR OBE THE FACTS FROM THE RETURN OF INCOME WHILE PROCESSING THE RETURN OF INC OME U/S. 143(1). SINCE, NO CLAIM OF DEDUCTION OF INTEREST ON HOUSING LOAN HAS BEEN MADE IN THE RETURN OF INCOME AND AO ACCEPTED THE RE TURN OF INCOME FILED BY THE ASSESSEE AS IT IS, THEREFORE, THERE WA S NO MISTAKE APPARENT ON RECORD OF THE REVENUE DEPARTMENT. THUS, RECTIFIC ATION APPLICATION U/S. 154 WAS NOT MAINTAINABLE IN THE PRESENT FORM. IT APPEARS TO BE A MISTAKE COMMITTED BY THE ASSESSEE IN FILING THE RET URN OF INCOME, FOR WHICH THE ASSESSEE HAS BEEN PROVIDED REMEDY BY FILI NG THE REVISED RETURN, BUT THE ASSESSEE DID NOT TAKE ANY SUCH STEP IN THE MATTER. WE, THEREFORE, DO NOT FIND ANY JUSTIFICATION TO INTERFE RE WITH THE ORDER OF THE LD. CIT(A). THE APPEAL OF THE ASSESSEE HAS NO M ERIT AND IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS ALREADY MADE BEFORE THE TRIBUNAL WHILE ARGUING THE MAIN APPEAL A ND REFERRED TO COLUMNS OF THE RETURN AND RELIED UPON THE DECISION OF SUPREME COUR T IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT, 295 ITR 466, IN WHICH IT WAS HELD THAT NON- CONSIDERATION OF A DECISION OF CO-ORDINATE BENCH PL ACED BEFORE THE TRIBUNAL AMOUNTS TO MISTAKE APPARENT ON RECORD WITHIN THE ME ANING OF SECTION 254(2). HE HAS ALSO SUBMITTED THAT TRIBUNAL CAN RECALL THE ORD ER. ON THE OTHER HAND, THE LD.DR SUBMITTED THAT THE TRIBUNAL HAS ALREADY DECIDED THE APPEAL ON MERITS AND SINCE THE MA NO. 04/AGRA/2014 5 TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER ALREADY P ASSED ON MERITS, THEREFORE, THE M.A. OF THE ASSESSEE MAY BE DISMISSED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS WELL SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERITS. WE RELY UPON THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF EARNES T EXPORT LIMITED, 323 ITR 577, DECISION OF CALCUTTA HIGH COURT IN THE CASE OF CIT VS. ANAMIKA BUILDERS PVT. LTD., 251 ITR 585, DECISION OF A.P. HIGH COURT IN T HE CASE OF CIT VS. IDEAL ENGINEERS, 251 ITR 743 AND THE DECISION OF HONBLE M.P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING, 257 ITR 235. HONBLE CALCUT TA HIGH COURT IN THE CASE OF HINDUSTAN LEVER LTD VS. JCIT, 284 ITR 42 HAS HELD THAT A MISTAKE MUST BE SO OBVIOUS THAT IT CAN EASILY BE CORRECTED, TO WIT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION, ETC. AND NOT ON DEBATABLE ISS UE . IN THE PRESENT CASE, THE SUBMISSIONS OF THE ASSESSEE ON MERITS HAVE ALREADY BEEN CONSIDERED AND DECISION ON MERITS HAS BEEN TAKEN AGAINST THE ASSESSEE. THER EFORE, THE TRIBUNAL SHOULD NOT CHANGE THE VIEW ALREADY TAKEN ON MERITS. ADMITTEDLY , THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.4,14,270/- A ND SUCH STATEMENT WAS VERIFIED BY THE ASSESSEE AND THE AO WHILE PROCESSING THE RET URN U/S. 143(1) ACCEPTED THE RETURNED INCOME AT RS.4,14,270/-. NO FURTHER DEDUCT ION WAS CLAIMED IN THE RETURN OF INCOME. THEREFORE, THE TRIBUNAL DISMISSED THE AP PEAL OF THE ASSESSEE ON MERITS. MA NO. 04/AGRA/2014 6 THERE IS THUS, NO MISTAKE APPARENT FROM RECORD OF T HE TRIBUNAL. M.A. OF THE ASSESSEE HAS NO MERITS AND IS ACCORDINGLY DISMISSED . 8. IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (PRAMOD KUMAR) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY