Rahemutalla Restaurants, Sangli V. Deputy Commissioner of Income-tax, Circle - 1, Sangli

MA 46/PUN/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5811 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , , BEFORE SHRI ANIL CHATURVEDI , AM AND SHRI VIKAS AWASTHY , JM M A. NO S . 46 & 49 /PUN/2017 ( ARISING OUT OF ITA NO S . 955 & 2177 /PUN/2013 ) / ASSESSMENT YEARS : 200 9 - 10 & 20 10 - 11 RAHEMUTALLA RESTAURANTS, SHIWAJI ROAD, TAL. - MIRAJ, DISTT. - SANGLI PAN : AAHFR5278 G ....... / APPELLANT / V/S. DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE - 1 , SANGLI / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 15 .09.2017 / DATE OF PRONOUNCEMENT : 15 .09.2017 / ORDER PER VIKAS AWASTHY, JM THIS MISCELLANEOUS APPLICATION U/S. 254(2) OF THE INCOME TAX ACT, 1961(HEREINAFTER REFERRED TO AS THE ACT) HAS BEEN FILED BY THE ASSESSEE/APPLI CANT FOR SEEKING RECTIFICATION OF THE ORDER OF TRIBUNAL DATED 30.11.2016 COMMON FOR ITA NOS. 955/PUN/2013 & 2177/PUN/2013 FOR ASSESSMENT YEAR S 2009 - 10 & 2010 - 11 , RESPECTIVELY . 2. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IN APPEAL HAS RAISED FOUR GROUNDS. THE GROUND NO.4 WAS NOT 2 M.A. NOS. 46 & 49/PUN/2017 A.YS. 2009 - 10 & 2010 - 11 PRESSED. THE TRIBUNAL HAD ADJUDICATED GROUNDS NO. 1 AND 3 ALONG WITH THEI R SUB - GROUNDS. HOWEVER, THE GROUND NO. 2 ALONG WITH ITS SUB - GROUND S IN BOTH THE APPEALS REMAINED TO BE ADJUDICATED. 3. SHRI AJAY MODI REPRESENTING THE DEPARTMENT FAIRLY ADMITTED THAT GROUND NO. 2 RAISED IN THE APPEAL S BY ASSESSEE HA VE NOT BEEN ADJUDICATED. 4. BOTH SIDES HEARD. AFTER PERUSAL OF ORD ER OF TRIBUNAL DATED 30.11.2016 WE FIND THAT IN PARA - 6 OF THE SAID ORDER, THE TRIBUNAL ADJUDICATED GROUND NO. 1 ONLY . THOUGH WHILE SUMMING UP PARA 6, IT HAS BEEN MENTIONED THAT GROUND NO. 1 AND 2 RAISED IN THE APPEAL S A RE PARTLY ACCEPTED. IN FACT, GROUND NO. 2 RAISED IN THE APPEAL S HA VE NOT BEEN DWELLED UPON. THE GROUND NO. 2 RAISED IN APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 READS AS UNDER : - 2.1 THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT INSTEAD OF WDV OF THE ASSET, ACTUAL COST OF INVESTMENT IN BUILDING AND FURNITURE IS REQUIRED TO BE DEDUCTED FROM THE COST OF THE SAID ASSETS DETERMINED BY THE DVO FOR ARRIVING AT UNACCOUNTED INVESTMENT IN BUILDING AND FURNITURE. 2.2 THE LEAR NED CIT(A) ERRED IN NOT CONSIDERING THE AFORESAID CLAIM MADE BY THE ASSESSEE. 2.3 THE LEARNED CIT(A)/AO MAY BE DIRECTED TO CONSIDER THE ACTUAL COST OF THE ASSETS INCURRED BY THE ASSESSEE, WHILE ARRIVING AT THE FIGURE OF UNDISCLOSED INVESTMENT IN PLACE OF W.D.V OF SUCH ASSETS. 4.2 THE GROUND NO. 2 RAISED IN APPEAL BY THE ASSESSEE FOR ASSESSMENT YEAR 2010 - 11 READS AS UNDER : - 2.1 THE LEARNED CIT(A) FAILED TO APPRECIATE THE FACT THAT INSTEAD OF WDV OF THE ASSET, ACTUAL COST OF INVESTMENT IN BUILDING AND FURNITURE IS REQUIRED TO BE DEDUCTED FROM THE COST OF THE SAID ASSETS DETERMINED BY THE DVO FOR ARRIVING AT UNACCOUNTED INVESTMENT IN BUILDING AND FURNITURE. 2.2 THE LEARNED CIT(A) ERRED IN NOT CONSIDERING THE AFORESAID CLAIM MADE BY THE ASSESSEE. 2.3 THE LEARNED CIT(A)/AO MAY BE DIRECTED TO CONSIDER THE ACTUAL COST OF THE ASSETS INCURRED BY THE ASSESSEE, WHILE ARRIVING AT THE FIGURE OF UNDISCLOSED INVESTMENT IN PLACE OF W.D.V OF SUCH ASSETS. 2.4 CONSIDERING THE RELIEF AVAILABLE TO ASSESSEE AS PER GROU ND NO. 1.1 TO 1.3 AND 2.1 TO 2.3 THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN BUILDING AND INTERIOR DECORATION BE RESTRICTED TO RS. 9,13,599/ - . 3 M.A. NOS. 46 & 49/PUN/2017 A.YS. 2009 - 10 & 2010 - 11 A PERUSAL OF ABOVE GROUNDS SHOW THAT THE ISSUE RAISED IN GROUND NO. 2 FOR BOTH YEARS IS IDENTICAL. THE MISTAKE POINTED BY THE LD. AR OF THE ASSESSEE IS APPARENT AND HENCE , REQUIRES RECTIFICATION. THE ORDER OF TRIBUNAL DATED 30.11.2016 IS THUS RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING AFOREMENTIONED GROUND NO. 2 RAISED IN RESPECTIVE APPEALS BY THE ASSESSEE. 5. THE REGISTRY IS DIRECTED TO LIST BOTH THE APPEALS OF THE ASSESSEE FOR HEARING ON 31.10.2017. SINCE THE DATE OF HEARING OF APPEALS HAS BEEN INFORMED TO BOTH SIDES PRESENT IN THE COURT, I S SUANCE OF SEPARATE NOTICE TO BOTH THE SIDES IS DISPENSED WITH. 6. IN THE RESULT, MISCELLANEOUS A PPLICATION IS ALLOWED IN THE AFORESAID TERMS. ORDER PRO NOUNCED IN THE OPEN COURT ON FRIDAY , THE 15 TH DAY OF SEPTEMBER , 201 7 . SD/ - SD/ - ( / ANIL CHATURVEDI ) ( /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; / DATED : 15 TH SEPTEMBER, 2017. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A), KOLHAPUR 4. THE CIT - I/II, KOLHAPUR/ CIT (CENTRAL), PUNE. 5 . , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, /PRIVATE SECRETARY , / ITAT, PUNE .