RISK DESIGN AND ADVERTISING LTD, V. ASST CIT CEN CIR 38,

MA 429/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2885 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 03-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRISCHIDANAND DUBE
• Assessee Lawyers: DR P DANIEL
• Keywords: Opportunity of being heard; Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE S/SHRI H.L. KARWA, PRESIDENT AND B. R.BASKARAN (AM) . . , . . , MISC.APPLICATION NO.429/MUM/2014 ARISING OUT OF I.T.A. NO.2332/MUM/2012 ( / ASSESSMENT YEAR :2008-09) M/S RISK DESIGN AND ADVERTISING LTD., PLOT NO.8, SHAH INDUSTRIAL ESTATE, OFF VEERA DESAI ROAD, ANDHERI (W), MUMBAI-400053 / VS. THE DY. COMMISSIONER OF INCOME TAX CC 38, MUMBAI. ( / APPELLANT) .. ( !' / RESPONDENT) ./ $% ./ PAN/GIRNO.: AACCD0946R & /APPELLANT BY: DR.P.DANIEL !' ' & / RESPONDENT BY: SHRISCHIDANAND DUBE ( ) ' * + / DATE OF HEARING : 20.2.2015 ,- ' * + /DATE OF PRONOUNCEMENT : 25.2.2015 / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISC. APPLICATION AGAIN ST THE ORDER DATED 10.11.2014 PASSED BY THE BENCH IN ITA NO. I.T.A. NO .2332/MUM/2012 FOR ASSESSMENT YEAR 2008-09. 2. THE LD.COUNSEL APPEARING FOR THE ASSESSEE SUBMIT TED THAT THE ASSESSEE, VIDE GROUND NO.2, HAD SOUGHT FOR RELIEF O F RS.2.60 CRORES. HOWEVER, THE BENCH HAS DISMISSED THE SAME BY STATIN G THAT THE AO HAS NOT MADE ANY ADDITION OF RS.2.60 CRORES TO THE TOTA L INCOME. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE HAD ORIGINALLY OFFERED THE ABOVE SAID MA 429/MUM/2014 2 AMOUNT OF RS.2.60 CRORES IN THE RETURN OF INCOME FI LED BY IT FOR THE ASSESSMENT YEAR 2008-09. THE ABOVE SAID AMOUNT WAS OFFERED IN AY 2008-09 CONSEQUENT TO THE COMPOSITE OFFER MADE DURI NG THE COURSE OF SURVEY OPERATION CONDUCTED IN THE ASSESSEES GROUP. HOWEVER, WHILE FINALIZING THE ASSESSMENT FOR THE ASSESSMENT YEAR 2 006-07, THE AO HAS PERSUADED THE ASSESSEE TO FILE REVISED RETURN OF IN COME FOR AY 2006-07 BY INCLUDING THE VERY SAME AMOUNT OF RS.2.60 CRORES. C ONSEQUENTLY, THE ASSESSEE FILED THE REVISED RETURN AND ACCORDINGLY T HE ABOVE SAID AMOUNT OF RS.2.60 CRORES WAS OFFERED IN AY 2006-07. HE SUBMI TTED THAT THE ASSESSEE DID NOT PREFER ANY APPEAL AGAINST THE ASSESSMENT OR DER PASSED FOR AY 2006-07. SINCE THERE CANNOT BE DOUBLE ASSESSMENT OF SAME INCOME, THE ASSESSEE SOUGHT RELIEF OF RS.2.60 CRORES IN ASSESSM ENT YEAR 2008-09 IN THE APPEAL FILED BEFORE THE LD.CIT(A). HOWEVER, THE FI RST APPELLATE AUTHORITY REJECTED THE SAME ON THE REASONINGS THAT THE AO DID NOT MAKE ANY ADDITION AND FURTHER THE ASSESSEE COULD MAKE SUCH CLAIM, ONLY BY FILING REVISED RETURN OF INCOME AS PER THE DECISION OF HO NBLE SUPREME COURT RENDERED IN THE CASE OF GOETZE ( INDIA ) LTD. V. CIT [284 ITR 323 (SC)]. ACCORDINGLY, THE ASSESSEE CHALLENGED THE SAID DECIS ION OF LD.CIT(A) IN GROUND NO.2 FILED BEFORE THE ITAT. HOWEVER, THE T RIBUNAL DID NOT CONSIDER THE ARGUMENTS ADVANCED IN THAT BEHALF AT T HE TIME OF HEARING. THE LD. COUNSEL FURTHER SUBMITTED THAT THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF GOETZE ( INDIA ) LTD (SUPRA) DOES NOT IMPINGE THE POWER OF APPELLATE AUTHORITY AND THE SA ID LEGAL POSITION HAS MA 429/MUM/2014 3 BEEN CLARIFIED BY THE HONBLE JURISDICTIONAL HIGH C OURT IN THE CASE OF PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. (2012) 349 ITR 336. THE LD. COUNSEL FURTHER SUBMITTED THAT THE ASSESSEE HAS ACC EPTED THE ASSESSMENT OF RS.2.60 CRORES IN THE ASSESSMENT YEAR 2006-07 AN D HENCE THE ASSESSEE IS LEGALLY ENTITLED TO EXCLUDE THE SAID INCOME FROM THE TOTAL INCOME COMPUTED FOR AY 2008-09. HE FURTHER SUBMITTED THAT THE CLAIM MADE BY THE ASSESSEE FOR EXCLUSION OF THE ABOVE SAID AMOUNT IS A LEGAL CLAIM AND HENCE THE SAME CAN BE URGED BEFORE THE APPELLATE AU THORITIES FOR THE FIRST TIME ALSO. HE SUBMITTED THAT THE ASSESSEE URGED AL L THESE ISSUES BEFORE THE TRIBUNAL AND THE TRIBUNAL DID NOT GIVE ITS DECI SION THEREON. ACCORDINGLY HE SUBMITTED THAT NON-CONSIDERATION OF THE CLAIM OF THE ASSESSEE HAS RESULTED INTO A MISTAKE APPARENT FROM RECORD, WHICH NEEDS TO BE RECTIFIED. 3. WE HAVE HEARD THE LD.DR AND PERUSED THE RECORD. A PERUSAL OF THE ASSESSMENT ORDER WOULD SHOW THAT THE AO DID NOT MAK E ANY ADDITION TO THE TOTAL INCOME RETURNED BY THE ASSESSEE. IN FACT, THE AO HAS ACCEPTED THE TOTAL INCOME OF RS.2.07 CRORES DECLARED BY THE ASSESSEE IN ITS RETURN OF INCOME. ACCORDING TO THE ASSESSEE THE ABOVE SAID T OTAL INCOME OF RS.2.07 CRORES INCLUDES THE AMOUNT OF RS.2.60 CRORES OFFERE D DURING THE COURSE OF SURVEY OPERATIONS. THE CASE OF THE ASSESSEE IS THA T THAT, SUBSEQUENT TO THE FILING OF THE RETURN OF INCOME FOR THE ASSESSME NT YEAR 2008-09, THE ASSESSEE WAS CONSTRAINED TO OFFER VERY SAME AMOUNT OF RS.2.60 CRORES IN THE ASSESSMENT YEAR 2006-07 BY FILING THE REVISED T HE RETURN OF INCOME. MA 429/MUM/2014 4 THE LD.COUNSEL MADE A STATEMENT AT A BAR THAT THE A SSESSEE DID NOT FILE ANY APPEAL AGAINST THE ASSESSMENT ORDER PASSED FOR THE ASSESSMENT YEAR 2006-07, WHEREIN THE AMOUNT OF RS.2.60 CRORES WAS A SSESSED BY THE AO. SINCE THE AMOUNT OF RS.2.60 CRORES WAS ASSESSED IN AY 2006-07, THE ASSESSEE FILED A GROUND OF APPEAL BEFORE THE LD.CIT (A) IN THE APPEAL FILED FOR THE ASSESSMENT YEAR 2008-09 FOR EXCLUSION OF TH E AMOUNT OF RS.2.60 CRORES ALREADY ADMITTED IN THE RETURN OF INCOME FIL ED FOR AY 2008-09. HOWEVER, THE LD.CIT(A) REJECTED THE SAID CONTENTION ON THE REASONING THAT THE AO HAS NOT MADE ANY ADDITION TO RETURNED INCOME AND ALSO FURTHER, ON THE REASONING THAT THE ASSESSEE COULD MAKE SUCH CLA IM BY FILING REVISED RETURN OF INCOME ONLY, IN VIEW OF THE DECISION OF T HE HONBLE SUPREME COURT RENDERED IN THE GOETZE ( INDIA ) LTD (SUPRA). NOT SATISFIED WITH THE DECISION OF LD CIT(A), THE ASSESSEE HAS URGED GROUN D NO.2 BEFORE THE TRIBUNAL. THOUGH THE ASSESSEE HAS CONTESTED THE SA ID GROUND OF APPEAL BY URGING VARIOUS CONTENTIONS, YET THE TRIBUNAL HAS FAILED TO ADDRESS ALL OF THEM, MORE PARTICULARLY THE CONTENTION URGED IN THE CONTEXT OF DECISION OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF G OETZE (INDIA) LTD (SUPRA). HENCE, WE ARE OF THE VIEW THAT THE NON-CO NSIDERATION OF ALL THE CONTENTIONS, MORE PARTICULARLY THE LEGAL CONTENTION S URGED BY THE ASSESSEE, HAS RESULTED INTO A MISTAKE APPARENT FROM THE RECOR D. ACCORDINGLY, WE FIND MERIT IN THE MA FILED BY THE ASSESSEE. MA 429/MUM/2014 5 4. WITH THE CONSENT OF BOTH THE PARTIES, WE ALSO HE ARD THE PARTIES ON MERITS WITH RESPECT TO GROUND NO.2 URGED BY THE ASS ESSEE. AS STATED EARLIER THE AR HAS GIVEN A STATEMENT AT BAR TO THE EFFECT THAT THE ASSESSEE HAS ACCEPTED THE ASSESSMENT OF RS.2.60 CRORES IN TH E ASSESSMENT YEAR 2006-07, BY NOT FILING ANY APPEAL BEFORE THE APPELL ATE AUTHORITY. FURTHER, IT IS A SETTLED PROPOSITION OF LAW THAT THE INCOME TAX ACT DOES NOT PROVIDE FOR DOUBLE ASSESSMENT OF THE SAME INCOME, WHETHER I N THE SAME YEAR OR IN TWO ASSESSMENT YEARS. UNDER THESE SET OF FACTS, WE ARE OF THE VIEW THAT THERE IS, PRIMA FACIE, SOME MERIT IN THE CLAIM OF T HE ASSESSEE FOR EXCLUSION OF THE AMOUNT OF RS.2.60 CRORES IN AY 2008-09. EVE N THOUGH THE HONBLE SUPREME COURT HAS HELD IN THE CASE OF GOETZ INDIA L TD (SUPRA) THAT FRESH CLAIMS COULD BE MADE BY THE ASSESSEE ONLY BY FILING REVISED RETURNS OF INCOME, YET THE HONBLE APEX COURT HAS, IN CLEAR TE RMS, HELD THAT THE SAID DECISION DOES NOT IMPINGE THE POWER OF THE TRIBUNAL . IT IS WELL SETTLED PROPOSITION OF LAW THAT THE ASSESSING OFFICER IS RE QUIRED TO COMPUTE THE CORRECT TOTAL OF INCOME AND FURTHER, AS STATED EARL IER, THERE COULD NOT BE DOUBLE ASSESSMENT OF SAME INCOME. 5. UNDER THESE SET OF FACTS, WE ARE OF THE VIE W THAT THE CLAIM OF THE ASSESSEE FOR EXCLUSION OF RS.2.60 CRORES FROM THE T OTAL INCOME COMPUTED FOR AY 2008-09 ON THE GROUND OF DOUBLE ASSESSMENT N EEDS TO BE CONSIDERED BY THE ASSESSING OFFICER, SINCE THE CLAI M OF THE ASSESSEE NEEDS TO BE EXAMINED WITH THE RELEVANT FACTS. ACCORDINGL Y, WE SET ASIDE THE ORDER OF LD. CIT(A) AND RESTORE THE MATTER STATED A BOVE TO THE FILE OF THE MA 429/MUM/2014 6 AO WITH THE DIRECTION TO EXAMINE THE SAME AFRESH AF TER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND TAKE APPROPRIATE DECISION IN ACCORDANCE WITH THE LAW. 6. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS A LLOWED AND GROUND NO.2 URGED IN THE APPEAL IS TREATED AS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN CO URT ON 25TH FEB, 2015. ,- ( . /0 1 2 25TH FEB, 2015 - ' 3) 4 SD SD/- ( . . / H.L. KARWA) ( . . , / B.R. BASKARAN ) / PRESIDENT / ACCOUNTANT MEMBER / ( ) MUMBAI: 25TH FEB,2015. . . ./ SRL , SR. PS ! ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. ( 6* ( ) / THE CIT(A)- CONCERNED 4. ( 6* / CIT CONCERNED 5. 6. 78 3 !*9 , + 9 , / ( ) / DR, ITAT, MUMBAI CONCERNED 3 : ) / GUARD FILE. ; ( / BY ORDER, TRUE COPY < $ (ASSTT. REGISTRAR) + 9 , / ( ) /ITAT, MUMBAI