ACIT Cir 5 Pune, Pune v. Shri Tukaram Jivayya Naik,, Pune

ITA 785/PUN/2012 | 2008-2009
Pronouncement Date: 18-07-2013 | Result: Dismissed

Appeal Details

RSA Number 78524514 RSA 2012
Assessee PAN ABMPN1377L
Bench Pune
Appeal Number ITA 785/PUN/2012
Duration Of Justice 1 year(s) 3 month(s) 1 day(s)
Appellant ACIT Cir 5 Pune, Pune
Respondent Shri Tukaram Jivayya Naik,, Pune
Appeal Type Income Tax Appeal
Pronouncement Date 18-07-2013
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 18-07-2013
Assessment Year 2008-2009
Appeal Filed On 16-04-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K.PANDA ACCOUNTANT MEMBER ITA NO. 785/PN/2012 (ASSESSMENT YEAR: 2008-09) ASSTT. CIT CIR. 5 PUNE APPELLANT VS. TUKARAM JIVAYYA NAIK PROP. T.J. NAIK & CO. NEAR FOREST COLONY SHALIMAR CHOWK DAUND PUNE-411 801 PAN ABMPN 1377 L .. RESPONDENT APPELLANT BY: SHRI Y.K. BHASKAR RESPONDENT BY: SHRI SATI SH MANMOHAN DATE OF HEARING : 15.07.2013 DATE OF ORDER : 18.07.2013 ORDER PER SHAILENDRA KUMAR YADAV JM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-III PUNE DATED 28-10-2011 FOR A.Y. 2008-09 ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(APPEALS) ERRED IN DELETING THE ADDITION OF RS. 11 76 3377- MADE ON ACCOUNT OF CLOSING WORK IN PROGRESS. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW THE LEARNED CIT(APPEALS) ERRED IN FAILING TO A PPRECIATE THAT THE ASSESSEE HAD NOT SHOWN THE RECEIVABLES IN THE B ALANCE SHEET NOR HAD SHOWN THE WORK IN PROGRESS AGAINST SU CH RECEIVABLES EVEN WHILE CLAIMING THE CORRESPONDING E XPENSES. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(APPEALS) ERRED IN REFUSING TO CONSIDER THE ENTIRE MATTER WITH REGARD TO THE SURVEY ACTION U/S 133A DURING WHICH THE ASSESSEE HAD OFFERED ADDITIONAL UNACCOUNT ED INCOME TOWARDS WORK IN PROGRESS. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LEARNED CIT(APPEALS) ERRED IN HOLDING THAT SINCE THE PROVISIONS OF SECTION 145(3) HAD NOT BEEN SPECIFICA LLY INVOKED BY THE ASSESSING OFFICER THE SAME COULD NOT BE MAD E APPLICABLE. 5. WITHOUT PREJUDICE TO THE ABOVE THE ORDER OF THE LEARNED CIT(APPEALS) BE SET ASIDE AND DIRECTIONS BE ISSUED TO ADJUDICATE THE MATTER AFRESH AFTER CONSIDERING THE ISSUE OF SURVEY. 6. FOR THESE REASONS AND SUCH OTHER REASONS AS MAY BE URGED AT THE TIME OF THE HEARINGS THE ORDER OF THE LEARNED CIT(APPEALS) MAY BE VACATED AND THAT OF THE ' AS SESSING OFFICER BE RESTORED. 2. AT THE OUTSET OF HEARING IT WAS POINTED OUT THA T THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 1697/PN/2005 280 278 279 AND 1160/PN/2007 FOR A.Y. 2001-02 2003-04 2000-01 20 02-03 AND 2004-057 WHERE THE TRIBUNAL VIDE ITS ORDER 31-5-20 11 DECIDED THE ISSUE BY OBSERVING AS UNDER:- 16. IN VIEW OF THE AFORESAID DISCUSSION IT IS QU ITE CLEAR THAT THE CIRCUMSTANCES PREVAILING WITH THE ASSESSEE TO R EVISE AND RE-REVISE ITS RETURNS OF INCOME ARE WELL FOUNDED. IT IS QUITE CLEAR THAT ORIGINALLY THE INCOME OF RS.80 LAKHS WAS DECLARED IN THE COMPUTATION OF INCOME AS IS EVIDENT FROM A COP Y PLACED AT PAGE 109 OF THE PAPER BOOK. IT IS ALSO CLEAR THAT THE INCOME FROM BUSINESS OTHER THAN RS.80 LAKHS ON ACCOUNT OF WIP HAS BEEN DECLARED AS PER REGULAR METHOD OF ACCOUNTING F OLLOWED I.E. CASH SYSTEM OF ACCOUNTING. NOTABLY ADDITION AL INCOME OF RS.80 LAKHS HAS BEEN OFFERED IN THE COMPUTATION OF INCOME AND HAS NOT AFFECTED THE REGULAR ACCOUNTING SYSTEM FOLLOWED. THEREFORE THE PLEA OF THE LEARNED DEPARTMENTAL REP RESENTATIVE THAT THE RETURN HAS BEEN REVISED TO CHANGE THE METH OD OF ACCOUNTING IN OUR VIEW IS UNTENABLE. FACTUALLY ADDITIONAL INCOME OF RS.80 LAKHS WHICH WAS HITHERTO DECLARED I N THE REVISED RETURN CANNOT BE SAID TO BE A CHANGE MADE I N ACCOUNTING SYSTEM BECAUSE AT THE ORIGINAL STAGE TH ERE WAS NO ADJUSTMENT MADE IN THE BOOKS OF ACCOUNT WHICH CONTI NUED TO BE MAINTAINED ON CASH BASIS WHILE THE SAID AMOUNT WAS DECLARED AS ADDITIONAL INCOME BY WAY OF COMPUTATION OF INCOME. UNDER THESE CIRCUMSTANCES THE RELIANCE PL ACED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE JUDG MENT OF THE HON'BLE MADHYA PRADESH HIGH COURT IN THE CASE O F DEEPNARAYAN NAGU & CO. (SUPRA) TO ARGUE THE UNTENAB ILITY OF THE REVISED RETURN IS MISPLACED. ACCORDING TO THE LEARNED DEPARTMENTAL REPRESENTATIVE AS PER THE HON'BLE MAD HYA PRADESH HIGH COURT A REVISED RETURN CANNOT BE FILE D IN ORDER TO ADJUST OR REVISE THE METHOD OF ACCOUNTING. ON A CTS IN THIS CASE WE DO NOT FIND THAT THE RETURN HAS BEEN REVIS ED TO EFFECTUATE ANY CHANGE IN THE METHOD OF ACCOUNTING. MOREOVER AS EXPLAINED BY THE LEARNED COUNSEL THE DECLARATIO N OF RS.80 LAKHS ON ACCOUNT OF ONLY CLOSING WIP IN THE ASSESSM ENT YEAR 2003-04 IS UNDENIABLY INCONSISTENT WITH THE NORMS O F ACCOUNTING SINCE IT DOES NOT TAKE INTO CONSIDERATI ON THE ADJUSTMENT IN THE OPENING WIP AND THEREFORE THIS ITSELF CONSTITUTES A WRONG WITHIN THE MEANING OF SECTION 139(5) OF THE ACT. APART THEREFROM THE CIRCUMSTANCES EXPLAI NED BY THE COMMISSIONER OF INCOME-TAX(APPEALS) IN TERMS OF WHI CH THE REVISED RETURN WAS NECESSITATED HAVE NOT BEEN CONT ROVERTED BEFORE US. CONSIDERING ALL THESE FACTORS IN OUR V IEW THE COMMISSIONER OF INCOME-TAX(APPEALS) MADE NO MISTAKE IN HOLDING THAT THE REVISED AND RE-REVISED RETURNS FAL L WITHIN THE PARAMETERS OF SECTION 139(5) OF THE ACT. THUS THE ACTION OF THE ASSESSING OFFICER IN MAKING THE ADDITION MERELY BEC AUSE THE AMOUNT WAS OFFERED IN THE ORIGINAL RETURN OF INCOME WAS FILED ON 29.11.2003 CANNOT BE UPHELD SINCE IT WAS INCUMB ENT ON THE REVENUE TO HAVE CONSIDERED THE REVISED AND RE-R EVISED RETURNS AND THE REASONS PREVAILING FOR THE SAME AND ONLY AFTER EVALUATING THE SAME THE ISSUE WAS REQUIRED TO BE EX AMINED. IN OUR VIEW THE COMMISSIONER OF INCOME-TAX(APPEALS ) HAS CORRECTLY APPRECIATED THE CONTROVERSY AND UNDER THE SE CIRCUMSTANCES WE HEREBY AFFIRM HIS ORDER. NOTHING CONTRARY WAS BROUGHT TO OUR KNOWLEDGE ON BE HALF OF THE ASSESSEE. FACTS BEING SIMILAR SO FOLLOWING SAME R EASONING WE ARE NOT INCLINED TO INTERFERE WITH THE FINDING OF THE C IT(A) WHO HAS DELETED THE ADDITION OF RS. 11 76 337/- MADE ON ACC OUNT OF CLOSING WORK IN PROGRESS. 3. IN THE RESULT THE APPEAL OF THE REVENUE IS DISM ISSED. PRONOUNCED IN THE OPEN COURT ON THIS 18 TH JULY 2013. SD/- SD/- (R.K.PANDA) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE DATED: 18 TH JULY 2013 ANKAM COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A-III PUNE 4) THE CIT-III PUNE 5) THE DR A BENCH I.T.A.T. PUNE. 6) GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY I.T.A.T. PUNE