Shri Mohmadashraf Nabibbhai Mansuri, Visnagar V. The Income Tax Officer, Patan Ward-3, Mehsana

MA 57/AHD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2467 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 17-10-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: M K PATEL
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI ANIL CHATURVEDI, ACCO UNTANT MEMBER SHRI MOHMADASHRAF NABIBHAI MANSURI, VISNAGAR, DIST: MEHSANA PAN: AKPPM4593H (APPELLANT) VS INCOME TAX OFFICER, PATAN, WARD-3, MEHSANA (RESPONDENT) ASSESSEE BY: SHRI M.K. PATEL, A.R. REVENUE BY: SHRI M.K. SINGH, SR.D.R. DATE OF HEARING : 17-10-2014 DATE OF PRONOUNCEMENT : 31-10-20 14 / ORDER PER : ANIL CHATURVEDI, ACCOUNTANT MEMBER:- THROUGH THIS M.A., THE ASSESSEE HAS PRAYED FOR REC ALLING OF THE ORDER OF TRIBUNAL IN ITA NO. 2327/AHD/2012 DATED 21 /02/2014. 2. BEFORE US, THE ASSESSEE VIDE ITS MISCELLANEOUS A PPLICATION HAS INTER ALIA SUBMITTED THAT THE ONLY GROUND OF APPEAL WAS T O GRANT SET OFF OF BUSINESS LOSS OF RS. 16,06,222/- AGAINST UNDISCLOSE D INCOME OF THE ASSESSEE DETERMINED DURING THE YEAR. IT IS FURTHER SUBMITTED THAT ASSESSEE M.A. NO. 57/AHD/2014 (IN ITA NO. 2327/AHD/2012) ASSESSMENT YEAR 2008-09 M.A NO. 57/AHD/2014 (IN I.T.A NO.2327/AHD/2012) A .Y. 2008-09 PAGE NO MOHMADASHRAF NABIBHAI MANSURI VS. ITO 2 HAD RELIED ON THE DECISION OF HONBLE HIGH COURT IN THE CASE OF CIT VS. SHILPA DYEING AND PRINTING MILLS PVT LTD (2013) 39 TAXMAN.COM 3 (GUJ) WHEREIN THE HONBLE HIGH COURT AFTER REFERRING TO T HE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF FAKIR MOD. HAJI HASAN HAS HELD THAT SET OFF OF BUSINESS LOSS IS ALLOWED AGAINST INCOME DECLARED IN SURVEY IN ACCORDANCE OF SECTION 71 OF THE I.T. ACT. LD. AR SUBMITTED TH AT THE TRIBUNAL HAD REJECTED ASSESSEES CLAIMS OF SET OFF ON THE GROUND THAT THE LAW DOES NOT PERMIT ANY LOSS TO BE ADJUSTED WHEN THE LOSS WAS NO T CLAIMED IN THE RETURN FILED U/S. 139 OF THE IT ACT. LD. AR FURTHER SUBMI TTED THAT CONSIDERING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF SHILPA DYEING AND PRINTING MILLS PVT LTD (SUPRA) THE ASSESSEES C LAIM OF SET OFF SHOULD HAVE BEEN ALLOWED TO THE ASSESSEE AND NON-CONSIDERA TION OF THE DECISION OF THE JURISDICTIONAL HIGH COURT AMOUNTS TO APPAREN T MISTAKE ON RECORD RECTIFIABLE U/S. 254(2) OF THE ACT. HE THEREFORE S UBMITTED THAT THE ORDER MAY BE MODIFIED SUITABLY. LD. DR ON THE OTHER HAND OPPOSED THE SUBMISSIONS MADE BY THE ASSESSEE AND SUBMITTED THAT THERE IS NO APPARENT MISTAKE ON RECORD. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT WHILE DECIDING T HE APPEAL THE DECISION OF HONBLE GUJARAT HIGH COURT IN THE CASE OF SHILPA DY EING AND PRINTING MILLS PVT LTD (SUPRA) WAS REFERRED BUT HAS NOT BEEN CONSI DERED WHILE DECIDING THE ISSUE. IN THE CASE OF ACIT VS. SAURASHTRA KUTC H STOCK EXCHANGE LTD (2008) 305 ITR 227, IT HAS BEEN HELD THAT NON-CONSI DERATION OF A DECISION OF JURISDICTIONAL HIGH COURT OR SUPREME COURT IS M ISTAKE APPARENT FROM RECORD. RELYING ON THE AFORESAID DECISION, WE ARE OF THE VIEW THAT THERE IS APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. WE THEREFORE RECALL THE ORDER DATED 21/02/2014. REGISTRY IS DIRECTED TO FI X THE APPEAL IN THE NORMAL COURSE. M.A NO. 57/AHD/2014 (IN I.T.A NO.2327/AHD/2012) A .Y. 2008-09 PAGE NO MOHMADASHRAF NABIBHAI MANSURI VS. ITO 3 4. IN THE RESULT, THE MA IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE SD/- SD/- (G.C. GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD : DATED 31/10/2014 A.K. / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,