DCIT, CHENNAI V. Shifa Jaundice Clinic, CHENNAI

MA 61/CHNY/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3816 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 01-01-2016
• Assessment Year: misc
• Appeal Filed On: 01-06-2015
• Court: TRIBUNAL
• Department Lawyers: P RADHA KRISHNANJ
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Rectification of order
• Section: 132

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL B BENCH, CHE NNAI . , ! ' ! # . $% , & ' BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P.NO.61/MDS./2015 (I.T(SS)A.NO.34/MDS./2013 BLOCK PERIOD:01.04.1997 TO 28.03.2002 ) THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE IV(3)(I/C), 46 NUNGAMBAKKAM HIGH ROAD, CHENNAI. VS. M/S.SHIFA JAUNDICE CLINIC, OLD NO.55,NEW NO.93, TRIPLICANE HIGH ROAD, CHENNAI 600 005. PAN ABAFS 8229 G ( () / APPELLANT ) ( *+() / RESPONDENT ) / APPELLANT BY : MR.P.RADHAKRISHNAN,JCIT,DR / RESPONDENT BY : MR.A.S.SRIRAMAN, ADVOCATE / DATE OF HEARING : 01.01.2016 /DATE OF PRONOUNCEMENT : 01.01.2016 , / O R D E R PER A.MOHAN ALANKAMONY , ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITIONS IS FILED BY THE REVE NUE PRAYING FOR RECTIFICATION OF THE ORDER OF THE TRIBU NAL IN IT(SS)A MP NO.61 /MDS/15 2 NO.34/MDS./2012 DATED 28.02.2014 FOR THE BLOCK PER IOD:01.04.1997 TO 28.03.2002. 2. THE WRITTEN SUBMISSIONS SUBMITTED BY THE REVENU E IS REPRODUCED HEREIN BELOW FOR REFERENCE:- THE REVENUE FILED APPEALS BEFORE THE HONBLE ITAT FOR BLOCK ASSTT. 01.04.1997 TO 28.03.2002 VIDE ITA NO.341MDS12012 IN THE CASE OF SHIFA JAUNDICE CLINIC. AND ITAT, CONSIDERING THE FACTS AN D CIRCUMSTANCES OF THE CASE DIRECTED THE ASSESSING OFFICER TO ACCEPT THE INCOME AS DECLARED BY THE ASSESSEE AT RS.4,50,787/-. IN THIS CASE, SEARCH ACTION U/S. 132 OF THE I.T. AC T WAS CONDUCTED ON 2 8.03.2002 AND SUBSEQUENTLY PROCEEDINGS U/S. I 58B0 WERE INITIATED AGAINST THE ASSESSEE. THE ASSESSING OFFICER DETERMINED THE TOTA L UNDISCLOSED INCOME OF RS.22,53,937/- FOR THE BLOCK PERIOD ON THE BASIS OF GROSS RECEIPT OF THE FIRM. THE ASSESSEE FILED BLOCK RETURN FOR THE PERIOD FROM 01.04.1995 TO 28.03.2002. IN THE RETURN OF BLOCK PERIOD THE ASSES SEE HAD OFFERED INCOME OF RS.4,50,787/- FOR THE BLOCK PERIOD. THE DETAILS OF THIS INCOME, AS DECLARED BY THE ASSE SSEE ARE AS UNDER: ASSESSMENT YEAR INCOME DECLARED(RS.) 2000-2001 1,20,540/- 2001-2002 1,74,062/- 2002-2003 1,56,185/- TOTA L 4,50,7871 - SINCE THE RETURN WAS FILED ON THE DAY OF PASSING OF ASSESSMENT ORDER, THE SAME WAS NOT CONSIDERED BY THE ASSESSING OFFICER. T HE CIT(A) ESTIMATED THE INCOME FOR THE BLOCK PERIOD BEING 8% OF RS. 32,03,4 59/- WHICH WORKS OUT TO RS. 2,56,27/-. THE HON. ITAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE DIRECTED THE ASSESSING OFFICER TO ACCEPT THE INCOME AS DECLARED BY THE ASSESSEE AT RS.4,45,787/-VIDE ORDER NO I.T(SS) A NO34/MDS/20 L2 FOR AS 2000-01, 2001-02 AND 2002-03. THAT THE ORDER OF ITAT HAS MENTIONED T HE DECLARED INCOME AS RS.4,45,7871- INSTEAD OF RS.4,50,7871- AS DECLARED BY THE ASSESSEE IN THE MP NO.61 /MDS/15 3 RETURN OF INCOME FOR AYS 2000- 01,2001-02 AND 2002- 03, WHICH IS A MISTAKE APPARENT ON RECORDS. ALSO, WHILE PASSING THE ABOVE STATED ORDER, THE HON BLE ITAT HAS CONSIDERED ALL THE GROSS RECEIPTS, CLAIMED TO HAVE BEEN DERIVED BY THE ASSESSEE FROM HER PROFESSION FOR THE AY 1998-99 TO 2002-03, WERE CONSIDERED. THE DETAILS OF THESE RECEIPTS ARE AS UNDER: A.Y. GROSS PROFESSIONAL RECEIPTS 1998-1999 1,85,144.00 1999-2000 1,94,320.00 2000-2001 6,99,462.00 2001-2002 10,80,408.00 2002-2003 10,44,125.00 TOTAL 32,03,459.00 FROM, THE ABOVE, IT IS CLEAR THAT WHILE PASSING T HE ORDER THE HONBLE 1TAT HAS CONSIDERED THE INCOME DECLARED BY THE ASSESSEE ONLY FOR THE PERIOD 1999- 2000, 2000-2001 AND 2001-02, I.E. AY 2000-01 TO 200 2-03. HOWEVER, INCOME FROM F.Y 1997-98 (A.YS 1998-99 & 1999-2000) OF 22,3 60/- AND 23,170/-, WHICH IS EVIDENT FROM THE P& L A/C FILED BY THE ASSESSEE DUR ING THE COURSE OF REMAND PROCEEDINGS BEFORE THE A.O, REMAINED OUT OF THE PUR VIEW OF THE TOTAL TAXABLE INCOME ESTIMATED DECIDED BY THE ITAT. IF THE ABOVE STATED AMOUNTS ARE CONSIDERED, THEN THE TAXABLE INCOME OF THE ASSESSEE WILL BE RS.4,96,317/- AS AGAINST THE INCOME OF RS.4,50,787/- DETERMINED BY T HE HONBLE ITAT. FURTHER, EXPENSES REGARDING PARTNERS SALARY, INTEREST ON CA PITAL FOR THOSE ASSESSMENT YEARS NEED TO BE DISALLOWED, SINCE NO PARTNERSHIP D EED WAS FILED ALONG WITH THE RETURN OF INCOME. THIS WILL FURTHER ENHANCE THE ABO VE STATED INCOME OF THE ASSESSEE. HENCE, IT IS REQUESTED THAT THE HONBLE ITAT MAY KI NDLY CONSIDER THESE ABOVE STATED FACTS AND PASS A RECTIFICATION ORDER U NDER SECTION 254(2) OF INCOME TAX ACT,1961 RECTIFYING THE ABOVE STATED MISTAKE WH ICH IS APPARENT FROM PROFIT & LOSS A/C, BALANCE SHEET FOR A.Y.1998-99 & 1999-2000 WHICH ARE FILED BY THE ASSESSEE AND PART F RECORD ARE ENCLOSED. IN THIS C ONNECTION RELIANCE IS PLACED ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF UN ITED INDIA INSURANCE COMPANY LIMITED VS RAJENDRA SINGH& OTHERS 14TH MARC H 2000 IN THIS REGARD. TO THE EXTENT, THERE IS A MISTAKE WHICH HAS PREJUDICED THE CAUSE OF REVENUE, THE COURT HAS INHERENT POWER TO RECALL /RECTIFY THE ORD ER. RELYING ON THIS JUDGMENT, IT IS PRAYED THAT THE ORDER MAY BE RECALLED AND JUSTIC E RENDERED. MP NO.61 /MDS/15 4 APPROVAL OF THE CIT IS TAKEN FOR FILING THIS MISC ELLANEOUS PETITION. 3. AT THE OUTSET THE LD. D.R. SUBMITTED THAT IN PAR A NO.8 AT PAGE NO.5, LAST BUT ONE LINE AND IN PARA NO.8 AT PAGE NO .6, 3 LINES ABOVE, THE FIGURE ` 4,45,787/- HAS BEEN WRONGLY MENTIONED, WHILE AS THE CORRECT FIGURE IS ` 4,50,787/-. THE LD. A.R. AGREED WITH THE SUBMISSIONS OF THE LD. D.R. THEREFORE, THE WRONGLY MENTIONED FIGURE OF ` 4,45,787/- SHALL HEREBY STAND CORRECTED AS ` 4,50,787/-. IT IS ORDERED ACCORDINGLY. 3.1 LD. D.R FURTHER SUBMITTED THAT THE ASSESSEE H AD INITIALLY ADMITTED HIS GROSS RECEIPTS FOR THE ASSESSMENT YEAR 1998-99 AS ` 1,85,144/- AND FOR THE ASSESSMENT YEAR 1999-00 ` 1,94,320/- AND THEY WERE OMITTED TO BE INCLUDED AS INCOME OF THE A SSESSEE FOR THE BLOCK PERIOD 01.04.1995 TO 28.02.2002. IT WAS THER EFORE PLEADED THAT THIS AMOUNT MAY BE ADDED AS THE ADMITTED INCOME OF THE ASSESSEE. LD. A.R. ON THE OTHER HAND ARGUED BY STATING THAT T HE ASSESSEE HAD DECLARED NIL INCOME FOR THE ABOVE TWO ASSESSMENT YEARS WHILE AS FOR ASSESSMENT YEARS 2001-02 & 2002-03 ADMITTED AGGREGA TE INCOME OF MP NO.61 /MDS/15 5 ` 4,50,787/- RELATING TO THE BLOCK PERIOD IN THE REV ISED RETURN AND THE TRIBUNAL HAS DECIDED THE ISSUE BY DIRECTING THE LD. ASSESSING OFFICER TO ACCEPT THE INCOME AS DECLARED BY THE ASSESSEE FO R THE BLOCK PERIOD. THEREFORE, THE AFORESAID AMOUNT NEED NOT B E ADDED TO THE ADMITTED INCOME OF THE ASSESSEE BEING ` 4,50,787/-. 4 AFTER HEARING BOTH THE SIDES WE FIND THE ARGUMEN T OF THE LD. A.R. TO BE IN ORDER. HENCE, THIS GROUND RAISED BY T HE REVENUE IN ITS M.P IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS PARTLY ALLOWED. ORDER PRONOUNCED ON THE 1 ST JANUARY, 2016 AT CHENNAI. SD/- SD/- ( ! ' ! # . $% ) ( DUVVURU RL REDDY ) ( . ) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 1 ST JANUARY, 2016 K S SUNDARAM. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE