M/S BHANSALI TRADING CORPORATION, Jaipur V. ITO, Jaipur

MA 47/JPR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4057 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA SINGH JCIT DH FRFFK
• Assessee Lawyers: H M SINGHVI C A FOHKKX DH LS
• Keywords: Tax effect
• Section: 80HHC

Judgement Text

,E-,-LA-47@TSIH@15&ESA-HKWALKYH VSFMAX DKWIKSZJS 'KU] VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YSCL; DS LE{K (BEFORE SHRI R.P. TOLANI AND SHRI T.R.MEENA) M.A. NO.47/JP/2015 (A/O ITA NO.735/JP/12) ASSESSMENT YEAR : 2005-06 PAN : AABFB 8840N M/S.BHANSALI TRADING CORPN., VS. THE ITO, JAIPUR. WARD-2(1), JAIPUR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KKZFJRH DH VKSJ LS@ ASSESSEE BY : SH.H.M.SINGHVI, C.A. FOHKKX DH VKSJ LS@ DEPARTMENT BY : SH.RAJENDRA SINGH (JCIT) LQUOKBZ DH FRFFK@ DATE OF HEARING : 18.12.2015 ?KKS'K.KK DH FRFFK@ DATE OF PRONOUNCEMTNT: 02.02.2016 VKNS'K ORDER PER T.R.MEENA, AM THE ASSESSEE FILED M.A. PETITION ON 23.10.2015 AGA INST THE ORDER OF THIS BENCH IN ITA NO.735/JP/12 ASSESSMENT YEAR 2005-06 O RDER DATED 05.06.2015 THE ASSESSEE SUBMITTED THROUGH THIS M.A. PETITION AS UN DER :- 2. THE ROOT CAUSE OF GREVIANCE RELATES TO PENALTY IMPOSED U/S 271 (1)(C) (P.NO.27 TO 31) IN THE TRADING ADDITION MADE BY ASSESSING OFFICER AND THE RELIEF GRANTED BY CIT(A) MAY BE SUM MARIZED AS UNDER :- - 2 ADDITION MADE BY AO ADDITION SUSTAINED BY CIT(A) & ITAT CONFIRMED THE ORDER OF CIT(A) UNIT I RS. 4144423/- 496928/- UNIT II RS. 1264903/- AND AFTER GIVING DEDUCTION U/S 80HHC NET ADDITION RS.126490/- 62600/- THUS, IT IS NOT DENIED THAT THE FINALLY ASSESSED AD DITION (WHICH IS UNDER CONSIDERATION FOR PENALTY) FOR BOTH THE UNITS , AFTER THE AVAILABILITY OF THE ITAT ORDER REMAINED AT RS.5,59, 570/- ONLY AND IT IS ALSO NOT DISPUTED THAT THE TOTAL TAX THEREON COM ES TO RS.1,88,351/- ONLY AND NOT RS.4,10,923/- AS MENTION ED IN THE GROUNDS OF APPEAL NO. 1 (P.NO. 16 TO 17) TAKEN BY T HE REVENUE BEFORE THE HONBLE BENCH. DURING THE COURSE OF THE HEARING BEFORE THE HONBLE ITAT, THIS MISTAKE WHICH IS QUITE PATENT IN THE GROUNDS OF APP EAL TAKEN BY THE REVENUE, WAS APPOINTED THAT THE CORRECT AMOUNT OF P ENALTY ON THE FINALLY SUSTAINED ADDITIONS COMES TO RS.1,88,351/- ONLY AND NOT RS.4,10,923/-. IN FACT, THIS MISTAKE WAS ALSO DULY POINTED OUT TO LD.CIT(A) VIDE WRITTEN SUBMISSIONS DATED 16.05.2012 (P.NO.25 & 26) AND THE KIND ATTENTION OF THE HONBLE BENCH WAS SPE CIFICALLY DRAWN TO THIS PART OF THE SAID W/S. HOWEVER, THEREAFTER, THE HONBLE BENCH ADJOURNED THE HEARING TO THE NEXT DATE WITH A DIREC TION TO THE LD.A/R OF THE ASSESSEE TO FILE A CORRECT CALCULATIO N OF THE PENALTY AMOUNT, WHICH COMES WITH REFERENCE TO THE FINALLY A SSESSED ADDITION AND ALSO MAKING A MENTION OF THE RELEVANT CBDT INSTRUCTION ACCORDING TO WHICH IF THE AMOUNT OF PEN ALTY IS BELOW THE PRESCRIBED LIMIT NO APPEAL AS SUCH WAS TO BE FILED BY THE REVENUE. PURSUANT TO SUCH DIRECTIONS, ON THE NEXT DATE OF HE ARING I.E. //, THE LD.A/R OF THE ASSESSEE FILED A CALCULATION W.R.T. S HOWING THE FINALLY ASSESSED ADDITION AND THE RESULTANT TAX AS ALSO THE QUANTUM OF THE - 3 - PENALTY @ 100% THEREON, AS ALSO MENTIONING THE CBDT INSTRUCTION NO. 3/11 F NO. 279/MSC/142/2007 IT/09-02-2011 WHERE BY THEY HAVE DIRECTED THE REVENUE NOT TO FILE ANY APPEAL IN CASE THE TAX EFFECT IS RS. 3 LAC OR BELOW THAT. NOTABLY THE LD. D/R ALSO FILED CALCULATION OF THE CORRECT AMOUNT OF THE PENALTY WI TH REFERENCE TO THE FINALLY ASSESSED ADDITIONS, WHICH ALSO, IN ANY CASE, WAS BELOW THE PRESCRIBED LIMIT OF RS.3 LAC. THIS WAY, EVEN T HE LD.D/R DID NOT DISPUTE THE FACT THAT THE FINAL AND CORRECT AMOUNT OF THE PENALTY WAS BELOW THE PRESCRIBED LIMIT OF RS.3 LAC. IN THE LIGHT OF THESE FACTS, THE LD.A/R THEREFORE, VEHEMENTLY SUBMITTED BEFORE THE HONBLE BENCH THAT THE PRESENT APPEAL FILED BY THE REVENUE IS NOT AT ALL MAINTAINABLE AND THEREFOR E KINDLY BE DISMISSED BEING NOT MAINTAINABLE IN THE LIGHT OF TH E SAID INSTRUCTION READ WITH S. 268A OF THE ACT. NOTABLY EVEN AT THIS STAGE THE LD.D/R DID NOT RAISE ANY OBJECTION TO THIS SUBMISSION. HOWEVER, WHILE DEALING WITH THE REVENUES APPEAL IN THE OPERATIVE PART I.E. PARA 6 PG 11 OF THE SUBJECTED ITAT ORDER, THE HONBLE ITAT HAS WRONGLY DISCUSSED THE MERITS OF THE PENALTY AND FINALLY CONFIRMED THE APPEAL OF THE REVENUE HOWEVER WITHOUT AT ALL TAKING NOTE OF THE ABOVE FACTS, AND THE CORRECT AMOUNT OF PENALTY AND MISTAKE THE GROUND OF REVENUE. IT APPEARS THAT ALL THESE FACTS, CONTENTIONS, THE CALCULATION OF THE PENALTY AND THE VERY FACT THAT THE LD.D/R ALSO DID NOT OBJECT TO THESE ADMITTED FA CT THAT THIS ISSUE WAS SQUARELY COVERED BY SAID CBDT INSTRUCTION, APPE ARS TO HAVE ESCAPED THE KIND ATTENTION OF THE HONBLE BENCH. S INCE IT IS A PATENT MISTAKE, GLARINGLY APPEARING FROM THE VERY FACT OF THE RECORD IN AS MUCH AS THE CALCULATIONS ARE ALREADY AVAILABLE ON T HE RECORD, IT CONSTITUTES A MISTAKE RECTIFIABLE U/S 254(2) OF THE ACT. PRAYER IT IS THEREFORE HUMBLY PRAYED THAT THE MISCELLANEOU S APPLICATION FILED BY THE ASSESSEE MAY KINDLY BE ALLOWED AND THE SUBJECTED ITAT ORDER DATED 06.05.2015 MAY KINDLY BE RECTIFIED SUIT ABLY. - 4 2. THE CASE HAS BEEN HEARD AND SUBMISSION OF A.R. F OR THE ASSESSEE HAS BEEN CONSIDERED BY THIS BENCH AS SUBMITTED THAT THE TAX EFFECT IN CASE OF ASSESSEE IS LESS THEN THE CBDT INSTRUCTION. THEREFORE THE REQU ESTED TO DISMISSED THE APPEAL OF THE REVENUE AT THE OUTSET THE LD.D.R. VEHEMENTLY SUPPORTED THE ORDER OF HONBLE BENCH AND ARGUED THAT HONBLE ITAT HAS GIVE N CATEGORICAL FINDING ON THE ISSUE OF PENALTY U/S 271(1)(C) OF THE IT ACT. THER E IS NO POWER IN THE LAW TO REVIEW THE OWN DECISION DECIDED BY THE BENCH U/S 254(2) OF THE IT ACT. THEREFORE, THE M.A. PETITION FILED BY THE ASSESSEE IS DESERVED TO BE DISMISSED. 3. WE HAVE HEARD THE RIVAL CONTENTION AND PERUSED T HE MATERIAL AVAILABLE ON RECORD. THE CBDT HAS REVISED THIS CIRCULAR AND THE TAX LIMIT HAS BEEN PRESCRIBED BELOW 10 LAC. HOWEVER, IN THE ASSESSEES CASE THE TAX EFFECT CALCULATED BY THE ASSESSEE IS RS.1,88,351/- IN PLACE OF RS.4,10,923/- AS CLAIMED BY THE REVENUE IN GROUNDS OF APPEAL. THIS WORKING OF TAX EFFECT HAS N OT BEEN CONTROVERTED BY THE LD.D.R. KEEPING IN VIEW OF THE LATEST CIRCULAR OF C BDT NO.F.279/MISC.142/2007- ITJ(PT) DATED 10.12.2015 THIS CASE IS COVERED. THER EFORE WE ALLOW THE ASSESSEES M.A. AND APPEAL FILED BY THE REVENUE AGAINST THE PE NALTY DELETED BY THE CIT(A) IS UPHELD. - 5 - 4. IN THE RESULT, M.A. IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02.02.2016 SD/- SD/- (R.P.TOLANI) (T.R.MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER T;IQJ@ JAIPUR, FNUKAD@ DATE : 02/02/2016 *BASANT* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO :- 1- ESA-HKALKYH VSSFMAX DKWIKSZJSKU] T;IQJ A 2- VK;DJ VF/KDKJH] OKMZ&21] T;IQJ A 3- VK;DJ VK;QDR] 4- VK;DJ VK;QDR VIHYL~&1] T;IQJ A 5- FOHKKXH; IZFRFUF/K] T;IQJ@ THE D.R. ITAT, JAIPUR 6- XKMZ QKBZY@ THE GUARD FILE (IN M.A. NO.47/JP/2015) VKNS'KKUQLKJ BY ORDER LGK;D IATHDKJ@ ASSISTANT REGISTRAR