THE ACIT, CENTRAL CIRCLE-2, Visakhapatnam V. Avnash Automobils Pvt Ltd., Visakhapatnam

MA 4/VIZ/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4611 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 4 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 15-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Keywords: Rectification of order

Judgement Text

MP NO.4/VIZAG/2016 AVNASH AUTOMOBILES (PVT) LTD., VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.P.NO.4/VIZAG/2016 (ARISING OUT OF ITA NOS.311 & 312/VIZAG/2014) ( / ASSESSMENT YEARS: 2007-08 & 2008-09) ACIT, CENTRAL CIRCLE - 2, VISAKHAPATNAM VS. AVNASH AUTOMOBILES (PVT) LTD. VISAKHAPATNAM [PAN: AAFCA 8994H ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI T.S.N. MURTHY, DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 24.06.2016 / DATE OF PRONOUNCEMENT : 22.07.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION FILED BY THE ASSESSEE, REQUESTING FOR RECTIFICATION OF ORDER PASSED BY THIS TRIBUNAL, IN ITA NOS.311 TO 312/VIZAG/2015 DATED 15.9.2005 FOR THE ASSESSMENT Y EAR 2007-08 AND 2008-09 IS ADJUDICATED AS UNDER. MP NO.4/VIZAG/2016 AVNASH AUTOMOBILES (PVT) LTD., VISAKHAPATNAM 2 2. DURING THE COURSE OF HEARING, THE LD. D.R. SUBMI TTED THAT ON GOING THROUGH THE ORDER PASSED BY THE HONBLE BENCH, IT I S NOTICED THAT THERE IS A MISTAKE IN THE FINDING OF THE TRIBUNAL IN ALLO WING SETTING OFF OF INCOME OFFERED FOR THE ASSESSMENT YEAR 2007-08 TOWA RDS UNACCOUNTED RECEIPT OF REAL ESTATE COMMISSION OF RS.20 LAKHS, A S THE ASSESSMENT FOR THE ASSESSMENT YEAR 2007-08 WAS QUASHED BY THE ITAT , THEREFORE THE INCOME ADMITTED BY THE ASSESSEE HAS NOT SUFFERED AN Y TAX, THEREFORE, IT IS A CLEAR MISTAKE WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS THE ACT). T HE D.R. FURTHER SUBMITTED THAT WHILE ADJUDICATING THE ISSUE OF TELE SCOPING THE INCOME FOR THE ASSESSMENT YEAR 2008-09, THE HONBLE ITAT HAD O VERLOOKED THE FACT THAT THE TELESCOPED INCOME DID NOT SUFFER TAX AND A CCORDINGLY THE SAID MISTAKE CONSTITUTE A MISTAKE APPARENT FROM RECORD, THEREFORE, REQUESTED TO RECTIFY THE ORDER U/S 254(2) OF THE ACT. 3. ON THE OTHER HAND, THE LD. A.R. FOR THE ASSESSEE SUBMITTED THAT THE COORDINATE BENCH HAS CONSIDERED THE ISSUE AND G IVEN FINDING IN THE ORDER DATED 15.9.2015. THE A.R. FURTHER SUBMITTED T HAT THE BENCH HAS TAKEN NOTE OF THE FACT THAT THE ASSESSMENT ORDER PA SSED BY THE A.O. FOR THE ASSESSMENT YEAR IS NOT MAINTAINABLE AND HENCE D ISMISSED THE APPEAL FILED BY THE REVENUE. THE ASSESSMENT ORDER FOR THE A.Y. 2007-08 HAS MP NO.4/VIZAG/2016 AVNASH AUTOMOBILES (PVT) LTD., VISAKHAPATNAM 3 BEEN CANCELLED ON TECHNICAL GROUNDS, HOWEVER, THE F ACT REMAINS THAT THE ASSESSEE HAS OFFERED THE SAID INCOME FOR THE ASSESS MENT YEAR 2007-08, THE SOURCE OF WHICH CANNOT BE IGNORED. THE HONBLE BENCH, AFTER CONSIDERING THE ABOVE FACT, ALLOWED TELESCOPING BEN EFIT AGAINST THE INCOME FOR THE ASSESSMENT YEAR 2008-09, THEREFORE, THERE IS NO MISTAKE IN THE ORDER OF TRIBUNAL, WHICH REQUIRES RECTIFICAT ION U/S 254(2) OF THE ACT. 4. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. ON VERIFICATION OF THE ORDER PASSED BY THIS TRIBUNAL, IN ITA NO.311 & 312/VIZAG/2015 DATED 15.9.2015, WE FIND THAT THE BE NCH HAS GIVEN ITS CATEGORICAL FINDING ON THE ISSUE OF TELESCOPING OF UNDISCLOSED INCOME ADMITTED FOR THE ASSESSMENT YEAR 2007-08 TO THE INC OME ADMITTED FOR THE YEAR 2008-09. WE FURTHER OBSERVED THAT THE APPEA L FILED BY THE REVENUE FOR THE ASSESSMENT YEAR 2007-08 HAS BEEN QU ASHED ON TECHNICAL GROUNDS. BUT, THE FACT REMAINS THAT THE ASSESSEE HAS ADMITTED UNDISCLOSED INCOME IN THE RETURN FILED IN RESPONSE TO NOTICE U/S 153C OF THE ACT, THE SOURCE OF WHICH IS AVAILABLE FOR TELES COPING THE INVESTMENT FOR THE NEXT YEAR. THE BENCH HAS CONSIDERED ALL THE SE ASPECTS AND GIVEN ITS CATEGORICAL FINDING. THEREFORE, WE ARE OF THE VIEW THAT THERE IS NO MP NO.4/VIZAG/2016 AVNASH AUTOMOBILES (PVT) LTD., VISAKHAPATNAM 4 MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL, DATED 15.9.2015 WHICH REQUIRES RECTIFICATION U/S 254(2) OF THE ACT. ACCO RDINGLY, WE DISMISS THE MISCELLANEOUS PETITION FILED BY THE REVENUE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 ND JUL16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ! /VISAKHAPATNAM: % /DATED : 22.07.2016 VG/SPS )! *! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ACIT, CENTRAL CIRCLE-2, VISA KHAPATNAM 2. / THE RESPONDENT M/S. AVNASH AUTOMOBILES (PVT) L TD., D.NO.54-10-09, MADDILAPALEM, VISAKHAPATNAM 3. + / THE CIT (CENTRAL), HYDERABAD 4. + ( ) / THE CIT (A), VISAKHAPATNAM 5. ! . , . , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , ! / ITAT, VISAKHAPATNAM