Shri Ramesh Chandra Gupta, Biora District Rajgarh V. Assistant Commissioner of Income Tax 2 (1) Ujjain, Ujjain

MA 46/Ind/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8044 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SB
• Assessment Year: 2014-2015
• Appeal Filed On: 20-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S AMBEDKAR
• Assessee Lawyers: S N AGRAWALPANKAJMOGRA CAS
• Section: 73

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.45/IND/2019 (ARISING OUT OF ITA NO.594/IND/2017) ASSESSMENT YEAR: 2014-15 SHRIASHUTOSH GUPTA PROP. M/S MAAGAYATRI STORES, BIAORA (M.P.) / VS. ACIT - 2 ( 1 ), UJJAIN ( APPELLANT ) ( RE VENUE ) P.A. NO. AFGPG8732A MA NO.46/IND/2019 (ARISING OUT OF ITA NO595/IND/2017) ASSESSMENT YEARS: 2014-15 SHRI RAMESH CHANDRA GUPTA, WARD NO.13, JUNABIORA DIST. RAJGARH / VS. DCIT(CENTRAL - 1), INDORE ( APPELLANT ) (RE VENUE ) P.A. NO. AKMPG5573E APPELLANT BY SHRI S.N. AGRAWAL&PANKAJMOGRA, CAS RE VENUE BY SHRI R . S . AMBEDKAR, SR. D R DATE OF HEARING: 15.11.2019 DATE OF PRONOUNCEMENT: 16.01.2020 MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 2 / O R D E R PER KUL BHARAT, J.M: BOTH THE MISC. APPLICATIONS ARE FILED BY ASSESSEES SEEKING FOR RECALLING OF THE ORDER OF THE TRIBUNAL DAT ED 11.02.2019 PASSED IN ITA NO.594 & 595/IND/2017 PERTAINING TO ASSESSMENT YEAR 2014-15. 2. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMIS SIONS AS MADE IN THE APPLICATION. 3.ON THE CONTRARY, LD. D.R. OPPOSED THE SUBMISSIONS AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORDS. THE ASSESSEE IS SEEKING TO REVIEW THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE LAW. HOW EVER, LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS AN APPARENT MISTAKE ON THE RECORD AND HENCE THE ORDER DATE D 11.02.2019 DESERVES TO BE RECALLED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORDS. FOR THE SAKE OF CLARITY SUBMISSIONS MADE IN THE APPLICATIONS ARE REPRODUCED AS UNDER: MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 3 HONBLE ITAT VIDE ITS ORDER DATED 11-02-2019 PARTLY ALLOWED THE APPEAL AS FILED BY THE APPELLANT. 2] THE APPELLANT IN THE PRESENT APPEAL HAD TAKEN TH E FOLLOWING GROUNDS BEFORE THE HONBLE BENCH WHICH ARE REPRODUC ED AS UNDER: 1] THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD CIT[A] ERRED IN MAINTAINING THE ADDITION OF RS 2 1,245/- AS MADE BY THE ASSESSING OFFICER OUT OF LABOUR EXPE NSES WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM. 2] THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD CIT[A] ERRED IN MAINTAINING THE ADDITION OF RS 1 ,14,540/- AS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF LOW HOUSEHOLD WITHDRAWAL WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM. 3] THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD CIT[A] ERRED IN NOT REDUCING THE TOTAL INCOME OF THE ASSESSEE BY THE AMOUNT OF EXCESS STOCK AS FOUND AND DECLARED DURING THE COURSE OF SURVEY OF RS 15,00,58 0/- WITHOUT PROPERLY APPRECIATING THE FACTS OF THE CASE AND SUBMISSION MADE BEFORE HIM. 4] THE APPELLANT RESERVES ITS RIGHT TO ADD, ALTER O R DELETE ANY GROUND OF APPEAL ON OR BEFORE THE DATE OF FINAL HEA RING. 3] THE HONBLE BENCH WHILE DECIDING GROUND NO. 3 OF THE PRESENT APPEAL WHEREIN THE APPELLANT HAD CLAIMED TO EXCLUDE THE AMOUNT OF ADDITIONAL INCOME DECLARED DURING THE COURSE OF SURVEY ON ACCOUNT OF EXCESSIVE STOCK IN PARA 10 ON INNER PAGE NO. 6 & 7 OF THE ORDER HELD AS UNDER: 10. UNDISPUTEDLY, THE ASSESSEE HAS DECLARED AMOUNT IN HIS RETURN OF INCOME. THE ASSESSEE HIMSELF HAS DECLARED ITS AMOUNT AND HAS NOT EVEN REVISED HIS RETURN OF INCOM E. THE ASSESSEE HAS ALSO NOT STATED AS TO HOW HE IS AGGRIE VED BY THE ORDER OF THE A.O. AS HE HAS NOT MADE ANY ADDITI ON IN THE MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 4 ASSESSMENT ORDER. THEREFORE, WE DO NOT SEE ANY INFI RMITY IN THE ORDER OF THE LD. CIT(A) AND THE SAME IS HEREBY AFFIRMED. APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 4] THE APPELLANT HAD CLEARLY STATED BEFORE THE ASSE SSING OFFICER THAT STOCK AS PER TRADING ACCOUNT WAS HIGHER THAN W HAT WAS ACTUALLY FOUND AS ON THE DATE OF SURVEY AND THEREFO RE ADDITIONAL INCOME AS OFFERED ON ACCOUNT OF EXCESS STOCK REQUIR ES TO BE WITHDRAWN. COPY OF LETTER AS FILED BEFORE THE ASSESSING OFFICER IS ENCLOSED ON PAGE NO. 6 TO 8 OF THE COMPI LATION. RELEVANT PARA IS PARA 8.4.2 ON PAGE NO. 8 OF THE COMPILATION. HOWEVER, THE CLAIM OF THE APPELLANT WAS NOT ACCEPTED BY THE ASSESSING OFFICER AND THEREFORE THE SAME WAS DISPUTED BY THE APPELLANT BEFORE THE LD CIT [A]. 5] THE APPELLANT HAD TAKEN A SPECIFIC GROUND BEFORE THE LD CIT[A] WHEREIN HE CLAIMED TO EXCLUDE THE AMOUNT OF ADDITIO NAL INCOME OF RS. 15,00,580/- DECLARED DURING THE COURSE OF SURVE Y ON ACCOUNT OF EXCESSIVE STOCK WHICH WAS INCLUDED IN THE TOTAL INCOME. COPY OF WRITTEN SUBMISSION AS FILED BEFORE THE LD CIT [A] I S ENCLOSED ON PAGE NO. 1 TO 5 OF THE COMPILATION WHEREIN THE A PPELLANT IN GROUND NO. 6 HAD CLAIMED TO EXCLUDE THE AMOUNT O F ADDITIONAL INCOME DECLARED DURING THE COURSE OF SUR VEY ON ACCOUNT OF EXCESSIVE STOCK. 6] THE LD CIT [A] VIDE HIS ORDER DATED 05-05-2017 I N PARA 4.4 ON INNER PAGE NO. 7 OF THE ORDER REJECTED THE CLAIM OF THE APPELLANT MERELY FOR THE REASON THAT THE APPELLANT HIMSELF HA D DECLARED THE AMOUNT OF ADDITIONAL INCOME IN HIS RETURN OF TOTAL INCOME. THE LD CIT [A] FAILED TO APPRECIATE THE CONTENTIONS OF THE APPELLANT ON MERITS. HENCE, THE APPELLANT PREFERRED AN APPEAL BEFORE THE HONBLE BENCH AND REQUESTED TO ACCEPT THE CLAIM OF THE APPELLANT TO EXCLUDE THE AMOUNT OF ADDITIONAL INCOME DECLARED DURING THE COURSE OF SURVEY ON ACCOUNT OF EXCESSIVE STOCK FROM THE TOTAL INCOME. 7] THE APPELLANT IN PARA NO. 3.3.4 TO 3.5 ON PAGE N O. 67 OF THE SYNOPSIS AS FILED BEFORE THE HONBLE BENCH HAD DEAL T WITH THE SAID ISSUE IN DETAIL. THE APPELLANT IN PARA NO. 3.6 ON P AGE NO. 67 TO 70 MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 5 OF THE SYNOPSIS HAD ALSO RELIED ON THE CIRCULAR OF THE BOARD AND THE FOLLOWING DECISIONS: S.NO REFERENCE CITATION 1 CBDT CIRCULAR NO 14[XI-35] OF 1955 DT 11-04-1955 2 MAYANKPODDAR (HUF) VS WTO 262 ITR 633 [CALCUTTA] 3 CIT VSBHASKARMITTER 73 TAXMAN 437 [CALCUTTA] 4 SUSHIL KUMAR DAS VS ITO 15 TAXMANN.COM 52 [ITAT KOLKATA BENCH] 5 CIT VS SHELLY PRODUCTS 129 TAXMANN 271 [SC] 8] THAT IN VIEW OF THE ABOVE, IT SEEMS THAT THIS GR OUND OF APPEAL AS TAKEN BY THE APPELLANT WAS REJECTED BY THE HONBLE BENCH MERELY FOR THE REASON THAT NO SEPARATE ADDITION WAS MADE B Y THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. HOWEVER, IT IS WORTH HIGHLIGHTING THAT SINCE THE CLAIM OF THE APPELLANT WAS NOT ENTERTAINED BY THE ASSESSING OFFICER AND ALSO BY TH E LD CIT [A]; HENCE, THE APPELLANT HAD RIGHTLY TAKEN THIS GROUND BEFORE THE HONBLE BENCH AND REQUESTED TO SET-ASIDE THE SAID G ROUND TO THE FILE OF THE LD CIT [A] WITH A SPECIFIC DIRECTION TO DEAL WITH THIS GROUND ON MERITS. 9] THAT HONBLE ITAT DELHI BENCH (THIRD MEMBER) IN THE CASE OF MOHAN MEAKIN LTD VS ITO AS REPORTED IN 89 ITD 0179 HAS HELD THAT: 9. AFTER CONSIDERING THE RIVAL SUBMISSIONS, I AM O F THE VIEW OF THE ORDER PASSED BY THE LEARNED JM IS THE CORREC T ONE BOTH ON FACTS AND IN LAW. AS RIGHTLY ARGUED BY THE LEARNED COUNSEL THE NON-CONSIDERATION OF A JUDGMENT CITED B EFORE THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT FROM THE RE CORD WITHIN THE MEANING OF S. 254[2] AND ON BEING POINTE D OUT BY ANY OF THE PARTIES, THE TRIBUNAL IS OBLIGED TO TAKE INTO ACCOUNT THE JUDGMENT SO CITED IRRESPECTIVE OF THE R ESULTS THAT WOULD FOLLOW. IN THE PRESENT CASE, THE LEARNED JM H AS VERY APTLY COMPARED THE FACTS OF THE ASSESSEES CASE WIT H THOSE PREVAILING IN THE CASE OF ITO VS FOOD SPECIALTIES L TD (SUPRA) AND THEREAFTER DIRECTED REQUISITE RELIEF. MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 6 10] THAT IN VIEW OF THE ABOVE FACTS OF THE CASE, IT SEEMS THAT THE HONBLE BENCH WHILE DECIDING THIS GROUND OF APPEAL DID NOT CONSIDER THE DECISIONS AS CITED BEFORE IT. HENCE, H ONBLE BENCH IS HEREBY REQUESTED TO RECALL THE ORDER AS PASSED ON 1 1-02-2019 IN CONNECTION WITH GROUND NO. 3 OF THE APPEAL AND DECI DE THE SAID GROUND AFRESH. THIS APPLICATION MAY PLEASE BE TREAT ED AS A MISCELLANEOUS APPLICATION UNDER SECTION 254[2] OF T HE INCOME TAX ACT. 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, WE FIND FORCE IN THE CONTENTION OF THE ASSESSEE THAT FACTS SUBMITTED IN THE SYNOPSIS FILED BY THE ASSESSEE INADVERTENTLY ESCAPED ATTENTION OF THIS TRIBUNAL. THEREFORE, IN THE INTERES T OF JUSTICE, WE RECALL OUR ORDER DATED 11.2.2019 WITH LIM ITED PURPOSE TO RE-DECIDE THE GROUND NO.3 IN CASE OF ASHT OSH GUPTA AND GROUND NO.2 IN CASE OF RAMESH CHANDRA GUPTA RAISED IN ITA NOS.594 & 595/IND/2017. REGISTRY IS DI RECTED TO RE-FIX BOTH THESE APPEALS ON LIMITED PURPOSE OF RE - DECIDING THE AFORESAID GROUNDS ONLY. THE OTHER CONTEN TS OF THE ORDERS DATED 11.2.2019 SHALL REMAIN UNCHANGED. MA NO.45 & 46/IND/2019 SHRIASHUTOSH GUPTA & R.C. GUPTA 7 6. IN RESULT, BOTH THE MAS ARE ALLOWED IN TERMS INDIC ATED HEREINABOVE. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 16.1.2020. SD/- (MANISH BORAD) ACCOUNTANT MEMBER SD/- ( KUL BHARAT) JUDICIAL MEMBER DATED : 16.1.2020 !VYAS! COPY TO: ASSESSEE/RESPONDENT/CIT(A)/CIT/DR, INDORE