D Saivenugopal, Chennai V. ITO, NCW 6(1), Chennai

MA 71/CHNY/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2929 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 4 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-08-2022
• Assessment Year: 2013-2014
• Appeal Filed On: 15-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 44AD

Judgement Text

आयकर अपीलीय अिधकरण, ’सी’ Ɋायपीठ, चेɄई IN THE INCOME-TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI ŵी वी दुगाŊ राव Ɋाियक सद˟ एवं ŵी जी. मंजुनाथा, लेखा सद˟ के समƗ Before Shri V. Durga Rao, Judicial Member & Shri G. Manjunatha, Accountant Member M.P. No. 71/Chny/2020 [In I.T.A. No.386/Chny/2019] Assessment Year: 2013-14 Shri D. Saivenugopal New No.11, Old No.5, Sami Chetty Street, Pudupet, Chennai – 600 002. [PAN: BETPS 6046G] Vs. Income Tax Officer Non Corporate Ward-6(1) Chennai (Petitioner) (ŮȑथŎ/Respondent) अपीलाथŎ की ओर से / Appellant by : Shri Gowthaman, C.A. ŮȑथŎ की ओर से/Respondent by : Shri Sajit Kumar, JCIT सुनवाई की तारीख/ Date of hearing : 12.08.2022 घोषणा की तारीख /Date of Pronouncement : 12.08.2022 आदेश /O R D E R PER V. DURGA RAO, JUDICIAL MEMBER: By means of present Miscellaneous Petition, the assessee seeks to recall the order passed by the Tribunal in assessee’s appeal in I.T.A. No. 386/Chny/2019 dated 27.11.2019 for the assessment year 2013-14. 2. By referring to the miscellaneous petition, the ld. Counsel for the assessee has submitted that the assessee had no business activity M.P. No.71/Chny/20 2 carried out during the said assessment year and hence there was no sales register or books of account. The assessee has only made a journal entry crediting the capital account and debiting Saraswathi Broilers Pvt. Ltd., a company in which the assessee is a director, which does not warrant maintenance of books of accounts. However, the Assessing Officer levied penalty under section 271A r.w.s. 44AA of the Income Tax Act for non-maintenance of books of accounts, which was confirmed by the ld. CIT(A) and sustained by the ITAT. When there was no sale, no books are required and thus, there is a mistake apparent in the order of the Tribunal. Therefore, the ld. Counsel prayed for recalling the order of the Tribunal dated 27.11.2019 for fresh adjudication. 3. On the other hand, the ld. DR has not seriously object to the submissions of the ld. Counsel. 4. We have heard both the parties, perused the records. In this case, the assessee is in the business of poultry farm and wrongly claimed benefit under section 44F of the Act when the assessee had no business activity carried out during the said assessment year. This was neither found by the Assessing Officer nor ld. CIT(A) or ITAT. Actual claim should M.P. No.71/Chny/20 3 have been under section 44AD of the Act where no books are require to maintain for the income below ₹.1 crore. Thus, we find that there is a mistake in the appeal order passed by the ITAT by considering a non- applicable provision. Accordingly, we recall the order of the Tribunal passed in I.T.A. No. 386/Chny/2019 dated 27.11.2019 and direct the Registry to post the appeal for hearing on regular course. 5. In the result, the miscellaneous petition filed by the assessee is allowed. Order pronounced in the open Court on 12 th August, 2022 at Chennai. Sd/- Sd/- (G. MANJUNATHA) ACCOUNTANT MEMBER (V. DURGA RAO) JUDICIAL MEMBER Chennai, Dated, 12.08.2022 Vm/- आदेश की Ůितिलिप अŤेिषत/Copy to: 1. अपीलाथŎ/Appellant, 2.ŮȑथŎ/ Respondent, 3. आयकर आयुƅ (अपील)/CIT(A), 4. आयकर आयुƅ/CIT, 5. िवभागीय Ůितिनिध/DR & 6. गाडŊ फाईल/GF.