SCIL CAPITAL INDIA P.LTD, V. ITO WD 3(3)(1),

MA 512/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9718 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 03-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJARSHI DIWEDY
• Assessee Lawyers: K V PANCHMATIA
• Keywords: Opportunity of being heard; Revised return
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI VIVEK VARMA , JUDICIAL MEMBER. M.A. NO. 512/MUM/2012. (IN ITA NO .3051/MUM/2011) ASSESSM ENT YEAR : 2004-05. SCIL CAPITAL INDIA LTD., THE INCOME-TAX OFFICER, 21, MITTAL CHAMBERS, VS. WARD-3(3)(1), 228 NARIMAN POINT, MUMBAI. MUMBAI 400021. PAN AAACS 8065J APPLICANT. RESPONDENT. APPLICANT BY : SHRI K.V. PANCHMATIA. RESPONDENT BY : SHRI RAJARSHI DIWEDY. DATE OF HEA RING : 14-12-2012. DATE OF PRONOUNCEM ENT : 14-12-2012. O R D E R PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF THE T RIBUNAL DATED 29 TH FEBRUARY, 2012 PASSED IN ITA NO.3051/MUM/2011. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. THE FIRST MISTAKE ALLEGED TO HA VE CREPT IN THE ORDER OF THE TRIBUNAL AS PER THE ASSESSEE IS THAT GROUND NO. 1 O F ITS APPEAL HAS BEEN DISMISSED BY THE TRIBUNAL AS NOT PRESSED WHEREAS THE SAME WAS PRESSED AT THE TIME OF HEARING SEEKING SPECIFICATION DIRECTION TO THE AO. IT IS, HOWEVER, OBSERVED THAT THE ISSUE 2 M.A.NO.512/MUM/2012 INVOLVED IN GROUND NO. 1 WAS RELATING TO DISALLOWAN CE OF RS.48,503/- ON ACCOUNT OF AMOUNTS WRITTEN OFF AND SINCE THE SAID ISSUE WAS A LREADY REMANDED BY THE LEARNED CIT(APPEALS) TO THE AO WITH A SPECIFIC DIRECTION T O VERIFY CERTAIN ASPECTS, THE PRAYER OF THE ASSESSEE TO GIVE THE DIRECTION TO THE AO TO FOLLOW THE DIRECTION GIVEN BY THE LEARNED CIT(APPEALS) WAS NOT ACCEPTED BY THE TRIBUNAL AND THE GROUND WAS DISMISSED AS NOT PRESSED KEEPING IN VIEW THAT THE A SSESSEE COULD NOT BE SAID TO BE AGGRIEVED BY THE ORDER OF THE LEARNED CIT(APPEALS) ON THIS ISSUE. IN OUR OPINION, THERE IS THUS NO MISTAKE ON THIS COUNT IN THE ORDER OF THE TRIBUNAL AS ALLEGED BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION CALLING F OR ANY RECTIFICATION U/S 254(2). 3. ANOTHER ISSUE RAISED BY THE ASSESSEE IN ITS APPE AL AS TAKEN IN GROUND NO.2 WAS RELATING TO DISALLOWANCE OF ITS CLAIM FOR DEDUC TION U/S 80G AMOUNTING TO RS.3,50,000/- AND ALTHOUGH THE SAME WAS RESTORED BY THE TRIBUNAL VIDE ITS ORDER DATED 29 TH FEBRUARY, 2012 (SUPRA) TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE THE CLAIM OF THE ASSESSEE U/S 80G AND DECIDE THE SA ME IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE OPPORTUNITY OF BEING HEARD, TH E ASSESSEE HAS SUBMITTED IN THE PRESENT MISCELLANEOUS APPLICATION THAT THERE ARE CE RTAIN FACTS WHICH ARE INCORRECTLY RECORDED BY THE TRIBUNAL AS UNDER : OBSERVATIONS IN THE ITAT ORDER CORRECT FACTS PARAGRAPH 4: THE AO DID NOT ALLOW ANY DEDUCTION U/S 80G OF THE ACT, ON THE GROUND THAT THE ASSESSEE HAS NOT CLAIMED THE SAME IN THE RETURN OF INCOME OR THROUGH REVISED RETURN OF INCOME. NOWHERE DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS OR IN THE ASSESSMENT ORDER HAS THE ASSESSING OFFICER DISCUSSED THE ISSUE VIS--VIS DEDUCTION U/S 80G OF THE INCOME-TAX ACT, 1961. PARAGRAPH 4: THE CIT(A) CONFIRMED THE ACTION OF THE CIT(A) ON THE GROUND THAT THE ASSESSEE ACCEPTED THAT THE CLAIM WAS NOT . THIS IS AN OBVIOUS TYPOGRAPHICAL ERROR, THE CIT(A) CANNOT CONFIRM THE ACTION OF THE CIT(A). 3 M.A.NO.512/MUM/2012 PARAGRAPH 7: THOUGH THE ASSESSEE HAS NOT CLAIMED THE CLAIM U/S 80G, THE SAME WAS MENTIONED IN THE STATEMENT OF FACTS FILED BEFORE THE AO. NO STATEMENT OF FACTS WERE FILED BEFORE THE AO. THEY WERE FILED BEFORE THE COMMISSIONER OF INCOME-TAX (APPEALS). THE APPLICANT HAD CLEARED CLAIMED THE DEDUCTION U/S 80G IN THE RETURN OF INCOME FILED BY IT AND THE FACT THAT THE SAID CLAIM WAS MADE IN THE RETURN WAS DULY SUPPORTED BY THE EVIDENCE WHICH WAS BROUGHT TO THE NOTICE OF THE BENCH- REFER DETAILS IN PARAGRAPH NO.20 ABOVE. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD, WE ARE OF THE VIEW THAT THE ISSUE RELATING TO THE ASSESSEES CLAIM FOR DEDUCTION U/S 80G HAVING BEEN RESTORED BY THE TRIBU NAL TO THE FILE OF THE AO WITH A DIRECTION TO DECIDE THE SAME AFRESH IN ACCORDANCE W ITH LAW, THE MISTAKES, IF ANY, AS ALLEGEDLY POINTED OUT BY THE ASSESSEE IN RECORDING THE FACTUAL ASPECT HAVE ACTUALLY BECOME INFRUCTUOUS SINCE THE ISSUE RELATING TO ASSE SSEES CLAIM FOR DEDUCTION U/S 80G HAS TO BE CONSIDERED BY THE AO AFRESH AS PER TH E SPECIFIC DIRECTION GIVEN BY THE TRIBUNAL. IN OUR OPINION, RECTIFICATION OF THE SAID MISTAKE AS SOUGHT BY THE ASSESSEE THUS IS NOT WARRANTED IN THE FACTS OF THE CASE. WE, THEREFORE, FIND NO MERIT IN THIS MISCELLANEOUS APPLICATION FILED BY THE ASSE SSEE AND DISMISS THE SAME. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 14 TH DAY OF DECEMBER, 2012. SD/- SD/- (VIVEK VARMA) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 14 TH DEC., 2012. WAKODE 4 M.A.NO.512/MUM/2012 COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., E-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.