Shri Kamlesh C. Patel, Ahmedabad V. The Asstt. Commissioner of Income Tax, Circle-7, Ahmedabad

MA 97/AHD/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4891 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-11-2016
• Assessment Year: misc
• Appeal Filed On: 27-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P B PARMAR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMRJIT SINGH, ACCOUNTANT MEMBER MA NO. APPLICANT VS RESPONDENT 96/AHD/2016 IN IT(SS)A.NO.522/ AHD/2011 SHRI CHETAN C. PATEL 3/12, SHRADDADEEP COMPLEX ANKUR ROAD, NARANPURA AHMEDABAD 380 013. PAN : ABRPP 5818 P ACIT, CIR.7 AHMEDABAD. 97/AHD/2016 IN IT(SS)A.NO.523/ AHD/2011 SHRI KAMLESH C. PATEL 3/12, SHRADDADEEP COMPLEX ANKUR ROAD, NARANPURA AHMEDABAD 380 013. PAN : ACTPP 8959 Q ACIT, CIR.7 AHMEDABAD. 98/AHD/2016 IN IT(SS)A.NO.524/ AHD/2011 SHRI CHUNILAL R. PATEL 3/12, SHRADDADEEP COMPLEX ANKUR ROAD, NARANPURA AHMEDABAD 380 013. PAN : ACJPP 1546 P ACIT, CIR.7 AHMEDABAD. / (APPELLANT) / (RESPONDENT) ASSESSEE BY : SHRI P.B. PARMAR, AR REVENUE BY : SHRI JAMES KURIAN, SR.DR / DATE OF HEARING : 18/11/2016 / DATE OF PRONOUNCEMENT: 18/11/2016 / O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER PRESENT THREE MISC. APPLICATIONS ARE DIRECTED AT TH E INSTANCE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER O F THE TRIBUNAL DATED 4.11.2015 PASSED ON THE RESPECTIVE APPEALS OF THE A PPELLANTS. MA NO.96/AHD/2016 & 2 OTHERS 2 2. IT IS PLEADED IN THE APPLICATION THAT WHILE DECI DING THE APPEALS, THE TRIBUNAL FAILED TO TAKE COGNIZANCE OF GROUND NOS.3 TO 5 OF THE ASSESSEES APPEALS. ACCORDING TO THE LD.COUNSEL FOR THE ASSES SEE, IN THESE CASES, UNDISCLOSED INCOME OF THE ASSESSEE WAS REQUIRED TO BE COMPUTED AS PER SECTION 158BB WHICH WOULD CONTAIN BLOCK PERIOD. IN THE BLOCK PERIOD, SOME OF THE YEARS ARE SUCH YEARS, WHERE IN SPITE OF GP A DDITION MADE BY THE AO, THE INCOME WOULD NOT EXCEED FROM MINIMUM TAXABLE LIMIT. THEREFORE, WHEN TOTAL UNDISCLOSED INCOME IS TO BE COMPUTED FOR THE BLOCK PERIOD, THE INCOME FOR THE YEARS WHICH IS BELOW THE TAXABLE LIMIT OUGHT TO BE EXCLUDED FROM THE TOTAL UNDISCLOSED INCOME FOR THE BLOCK PERIOD. ACCORDING TO THE LD.COUNSEL FOR THE ASSESSEE, THIS ASPECT HAS NOT BEEN DEALT WITH BY TH E TRIBUNAL AS PLEADED IN THE GROUND NOS.3 TO 5. HE DREW OUR ATTENTION TOWARDS P ARA-9 OF THE ASSESSMENT ORDER, WHEREIN THE GP WORKING HAS BEEN MADE BY THE AO IN THE ASSTT.YEARS 1994-95 TO 1995-96. IT WOULD DEMONSTRATE THAT IN TH E CASE OF CHETAN C. PATEL, THE AO HAS WORKED OUT GP ON DIFFERENT FIGURE AND IN THE ASSTT.YEAR 1996-97, THIS AMOUNT IS RS.82,508/- WHICH WOULD BE REDUCED A FTER THE NP RATE APPLIED BY THE TRIBUNAL. THE LD.DR WAS UNABLE TO CONTROVE RT THIS CONTENTION OF THE LD.COUNSEL FOR THE ASSESSEE. 3. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION UNDER SECTIO N 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH I S SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM T HE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARG UMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A PERUSAL OF RECORD, WE FIND THAT THIS A SPECT WAS NOT DEALT WITH BY THE TRIBUNAL, AND APPARENT ERROR HAS CREPT IN THE O RDER OF THE TRIBUNAL, THEREFORE, WE ALLOW MISC. APPLICATIONS OF THE ASSES SEE AND DIRECT THE AO THAT MA NO.96/AHD/2016 & 2 OTHERS 3 WHILE DETERMINING UNDISCLOSED INCOME OF THE ASSESSE E FOR THE BLOCK PERIOD, THE L D.AO WOULD EXCLUDE THE INCOME OF THOSE YEARS FALLING IN THE BLOCK WHERE IN SPITE OF NET PROFIT ADDITION INCOME REMAINED BEL OW TAXABLE LIMIT. 4. IN THE RESULT, THE MAS ARE ALLOWED. ORDER PRONOUNCED IN THE COURT ON 18 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 18/11/2016