Tanuja Sahoo, Bhubaneswar V. ITO, Ward-1(2), Bhubaneswar

MA 9/CTK/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 2242 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 9 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 09-06-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: AMBIKA PRASAD MOHANTY
• Keywords: Rejection of books of accounts
• Section: 201

Judgement Text

, . . , , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, CUTTACK , BEFORE SHRI CHANDRA MOHAN GARG, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 09 / CTK /20 1 7 ( ARISING OUT OF ITA NO. 430 /CTK/201 6 ) ( / ASSESSMENT YEAR :20 1 1 - 201 2 ) TANUJA SAHOO, W/O. LATE ATISH KUMAR SAHOO AT: SHOP NO.1 & 2, KASTURI ESTATE, ASHOK NAGAR, BHUBANESWAR VS. ITO, WARD - 1(2), BHUBANESWAR ./ ./ PAN/GIR NO. : A PRPS 1842 C ( / APPELLANT ) .. ( / RESPONDENT ) /AS SESSEE BY : SHRI AMBIKA PRASAD MOHANTY , AR /REVENUE BY : SHRI SUBHENDU DUTTA , D R / DATE OF HEARING : 2 8 / 0 3 /201 9 / DATE O F PRONOUNCEMENT 04 / 04 /201 9 / O R D E R TH IS MISCELLANEOUS APPLICATION U/S.254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) HAS BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION O F THE ORDER DATED 07.03.2017 , PASSED BY THE TRIBUNAL IN ITA NO . 430 /CTK/201 6 FOR A.Y.201 1 - 201 2 IN THE CASE OF TANUJA SAHOO VS . ITO . 2. I HAVE HEARD ARGUMENTS OF BOTH THE SIDES AND CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF TRIBUNAL, INTER ALIA , RELEVANT APPEAL RECORD AND THE ORDER OF THE TRIBUNAL UNDER CHALLENGE. 3. LD. AUTHORISED REPRESENTATIVE OF THE A SSESSEE (AR) SUBMITTED THAT GROUND NO.3 OF THE ASSESSEE MENTIONED IN FORM NO.36 HAS NOT BEEN ADJUDICATED BY THE TRIBUNAL REGARDING REJECTION OF BOOKS OF ACCOUNTS, THEREFORE, THIS MISTAKE BEING APPA RENT ON THE FACE OF RECORD, MAY KINDLY M.A. NO. 09 /CTK/201 7 2 BE RECTIFIED BY RECALLING THE ORDER OF THE TRIBUNAL FOR ADJUDICATION OF GROUND NO.3 OF THE ASSESSEE. LD. AR ALSO SUBMITTED THAT GROUNDS NO.1 & 2 OF THE ASSESSEE HAVE BEEN DISMISSED BY THE TRIBUNAL BY CONSIDERING THE M ISLEADING STATEMENT OF THE AO AND WRITTEN SUBMISSIONS OF THE ASSESSEE HAS NOT BEEN CONSIDERED, THEREFORE, THIS ALSO AN APPARENT MISTAKE IN THE TRIBUNAL ORDER. THE LD. AR VEHEMENTLY POINTED OUT THAT THERE IS NO DISPUTE ON THE FACT THAT THE CASH DEPOSITED IN TO BANK ACCOUNT OF THE ASSESSEE AND CASHBOOK MAY NOT BE ABLE TO FORM THE BASIS TO PROVE THAT THE CASH IS NOT RELATING TO THE ASSESSEE OR OTHERWISE. HOWEVER, THE AUDITED ACCOUNTS OF SHRI BANAMALI SAHOO AND ICICI BANK CONFIRMATION , WHICH ARE ALREADY SUBMITTED BEFORE THE AO , MAY BE RELEVANT FOR CONSIDERATION WHICH IS INADVERTENTLY NOT CONSIDERED BY THE TRIBUNAL. THEREFORE, THESE MISTAKES BEING APPARENT ON THE FACE OF RECORD , MAY KINDLY BE RECTIFIED. 4. SO FAR AS THE FINDINGS OF THE TRIBUNAL IN PARA 8 TO 16 OF TH E ORDER ARE CON CERNED , I CLEARLY OBSERVE THAT THE TRIBUNAL HAS CONSIDERED ENTIRE FACTS AND CIRCUMSTANCES ALONG WITH CORRECT FIGURES WHILE ADJUDICATING AND DISMISSING THE GROUND S OF ASSESSEE. IF SUCH FINDINGS OF THE TRIBUNAL , BASED ON THE RECORD AND CORRECT FACTS AND FIGURES , ARE DISTURBED IN THE GARB OF RECTIFICATION IN THE TRIBUNAL ORDER, THEN CERTAINLY IT WOULD AMOUNT TO REVISION OF THE TRIBUNAL ORDER U/S.254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE AS PER MANDATE OF THIS PROVISION. 5. SO FAR AS NON - CONSIDE RATION OF GROUND NO.3, PERTAINING TO REJECTION OF BOOKS OF ACCOUNTS, IS CONCERNED I AGREE THAT THE AO HAS REJECTED THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND IN FORM NO. 35, THE ASSESSEE M.A. NO. 09 /CTK/201 7 3 RAISED GROUND NO.1 BEFORE THE CIT(A), WHICH WAS DISMISSED BY THE FIR ST APPELLATE AUTHORITY. FURTHER, FROM THE FORM NO.36 OF THE ASSESSEE FILED BEFORE THE TRIBUNAL, I OBSERVE THAT THE ASSESSEE HAS CHALLENGED REJECTION OF BOOKS OF ACCOUNTS BEFORE THE LD. CIT(A) AND WHEN THE LD. FIRST APPELLATE AUTHORITY REJECTED THIS GROUND OF ASSESSEE IN THE IMPUGNED ORDER THE ASSESSEE FURTHER AGITATED AND CHALLENGED THE REJECTION OF BOOKS OF ACCOUNTS BEFORE THE TRIBUNAL BY WAY OF RAISING GROUND NO.3 IN THE FORM NO.36 WHICH HAS NOT BEEN DECIDED BY THE TRIBUNAL. I AGREE THAT NON - CONSIDERATION AND ADJUDICATION OF GROUND NO.3 OF THE ASSESSEE BY THE TRIBUNAL IS AN APPARENT MISTAKE WHICH REQUIRES RECTIFICATION. THEREFORE, THE TRIBUNAL DATED 07.03.2017 IS RECALLED FOR LIMITED PURPOSE OF HEARING AND ADJUDICATION OF GROUND NO.3 OF THE ASSESSEE. ACCOR DINGLY, ARGUMENTS REGARDING RECALLING THE FINDINGS OF TRIBUNAL ORDER OF GROUNDS NO.1&2 ARE NOT ACCEPTED AND FURTHER IN THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, PART APPLICATION OF THE ASSESSEE IS ALLOWED AND THE ORDER OF THE TRIBUNAL DATED 07.03.2017 PASSED IN ITA NO. 430/CTK/2017 IS RECALLE D FOR HEARING ON LY FOR ADJUDICATION OF GROUND NO.3 OF THE ASSESSEE RAISED IN FORM NO.36. THE REGISTRY IS DIRECTED TO LIST THE CASE IN DUE COURSE . 6 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 04 / 04 / 201 9 . SD/ - ( CHANDRA MOHAN GARG ) / JUDICIAL MEMBER CUTTACK ; DATED 04 / 04 /2019 . . /PKM , S R.P.S. M.A. NO. 09 /CTK/201 7 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) , / ITAT, CUTTACK 1. / THE APPELLANT - . TANUJA SAHOO, W/O. LATE ATISH KUMAR SAHOO AT: SHOP NO.1 & 2, K ASTURI ESTATE, ASHOK NAGAR, BHUBANESWAR 2. / THE RESPONDENT - ITO, WARD - 1(2), BHUBANESWAR 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FIL E. //TRUE COPY//