Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA BENCH “D” KOLKATA
Before: Shri A.T.Varkey & Shri Waseem Ahmed
आदेश /O R D E R
PER Waseem Ahmed, Accountant Member:-
This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)-XXXVI, Kolkata dated 27.10.2014 and assessment for the year 2008-09 u/s 154/143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
At the outset, Ld. AR for the assessee has drawn our attention saying that the appeal is barred by limitation by just 4 days. The reason for the delay was explained on the ground of illness of assessee’s counsel who could not file appeal in due time. The assessee filed condonation of delay with original ITA No.190/Kol/2015 A.Y. 2008-09 M/s Balaka Cold Storage Pvt. Ltd. vs. ACIT Cir-1 Hgy. Page 2 medical certificate due to non-compliance on the part of assessee’s counsel. We condone the delay and to proceed hearing of the appeal.
It was also noticed that the instant case has been listed 20 times so far and Revenue has moved adjournment petition in this case almost 14 times. The Revenue again filed adjournment applications in 14 cases out of total 19 cases listed for hearing today including the present case. This en block adjournment is not possible and hence we have taken up for hearing and decided the issue by rejecting the adjournment petitions in this case. We have rejected the adjournment petition after hearing Shri M.C. Gope, Ld. Authorized Representative appeared on behalf of the assessee.
Solitary issue raised by assessee in this appeal is that Ld. CIT(A) erred in confirming the order of Assessing Officer u/s 154 of the Act by holding that there was no apparent mistake on record.
Briefly, the facts are that assessee in the present case is a Private Limited Company and engaged in cold storage business. For the year under consideration, assessee has filed online return declaring a profit of Rs.16,47,663/- which was processed u/s. 143(1) of the Act and demand of Rs.3,67,270/- was raised in the said intimation. Assessee filed rectification application u/s 154 of the Act by submitting that the actual profit earned for the current year of Rs.4,50,953/- only. But while filing IT return brought forward profit of Rs.13,49,987.99 was also added in current year’s income inadvertently. Further, assessee submitted that it was the first assessment year when it was made mandatory for corporate assessees to file return electronically. As such, some mistake was crept in filing the return of assessee. However, AO disregarded the claim of assessee by holding that there is no mistake apparent from the record. The assessee should have filed revised return of income to amend the total income as declared by assessee.
Aggrieved, assessee preferred an appeal before Ld. CIT who upheld the order of AO by observing as under:- “6.3 From the above it can be seen that the scope of the AO is limited u/s. 143(1) of the IT Act and is restricted to the return of income filed. In this case the return was processed as per the return of income filed. As A.Y. 2008-09 M/s Balaka Cold Storage Pvt. Ltd. vs. ACIT Cir-1 Hgy. Page 3 there was no mistake in processing of return, no rectification could have been done. If there was any mistake in the original return filed, the assessee ought to have filed a revised return. Taking all these fact into consideration, appellant’s appeal for consideration of rectification petition, is not accepted.”
Being aggrieved by this, assessee has come up an appeal before us. 7. Having heard the reiterated submission as made before the Ld. Authorities Below by Ld. AR for the assessee and perused the materials available on record. He stated that the issue may be decided on merit.
We have heard the learned AR and perused the materials available on record. From the foregoing discussion we find that the assessee while filing the income tax return online has inadvertently shown total income for Rs. 16,47,660.00 which is inclusive of the income pertaining to the earlier years. As per the assessee the actual amount of total income pertaining to the year under consideration is of Rs. 4,50,953.00 before tax and after tax it is Rs. 2,97,675/-. Accordingly the income tax return showing profit of Rs. 16,47,660/- was processed under section 143(1) of the Act and therefore the demand was raised on the assessee. Subsequently the assessee filed rectification petition u/s 154 of the Act which was denied by the AO by holding that the assessee was to file our revised return of income. The view of the AO was also confirmed by the learned CIT(A). Now the issue before us arises so as to whether the mistake as discussed above is rectifiable under section 154 of the Act in the aforesaid facts and circumstances. At this juncture, we would like to reproduce the provisions of Section 154 of the Act as under:- “Rectification of mistake. 154. [(1) With a view to rectifying any mistake apparent from the records an income-tax authority referred to in section 116 may,- (a) amend any order passed by it under the provisions of this Act; [(b) amend any intimation or deemed intimation under sub-section (1) of section 143;]]
[© amend any intimation under sub-section (1) of section 200a;] [(d) amend any intimation under sub-section (1) of section 206CB.]”
A.Y. 2008-09 M/s Balaka Cold Storage Pvt. Ltd. vs. ACIT Cir-1 Hgy. Page 4 From a plain reading of Section 154 which provides for rectification of mistake apparent from the records, we find that as per the said section, mistake is not confined to mere clerical or arithmetical mistake. The only point is that the mistake must be obvious and patent and not involving a debatable point. In the present case, on perusal of the facts available on record, it is found income tax return was filed on-line by the assessee, showing the current year profit for Rs. 4,50,953/- as per Serial Number 43 of the on-line return filed which is placed on record. In the same return the brought forward profit was also shown in the Serial Number 48 for Rs.13,49,988/- which was added in the current year’s income after tax i.e. Rs. 2,97,675/- (4,50,953.00 -1,53,278/- ). But The AO without appreciating the facts rejected the appeal filed by the assessee and subsequently the same was confirmed by the ld. CIT(A). On perusal of the aforesaid documents, we find that it was a clerical mistake committed by the assessee at the time of filing its return on-line. The same mistake can be rectified u/s 154 of the Act. In this connection, we rely in the judgment of Hon’ble Apex Court in the case of T.S. Balram, ITO Vs. Volkart Brothers And Others reported in 82 ITR 50 (SC) where it was held as under:
“A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long-drawn process of reasoning on points on which there may conceivably be two opinions. A decision on a debatable point of law is not a mistake apparent from the record. The power of the officers mentioned in s. 154 of the IT Act, 1961 to correct "any mistake apparent from the record" is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an "error apparent on the face of the record." In this case it is not necessary to spell out the distinction between the expressions "error apparent on the face of the record" and "mistake apparent from the record". But suffice it to say that the ITO was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent.”
In view of above, we find that the mistake in the instant case is apparent on record which can be rectified u/s 154 of the Act. The lower authorities have not brought any defect in the return filed by the assessee but kept harping A.Y. 2008-09 M/s Balaka Cold Storage Pvt. Ltd. vs. ACIT Cir-1 Hgy. Page 5 issue that the assessee was to file revised return of income. In our considered view, the mistake in the instant case is apparent which can be rectified u/s 154 of the Act. Therefore, we have no hesitation in reversing the order of lower authorities. Hence this ground of appeal of the assessee is allowed.