Sailesh Kumar Agarwal, Hyd, Hyderabad v. DCIT, Circle-5(1), Hyd, Hyderabad

MA 37/HYD/2016 | 2008-2009
Pronouncement Date: 30-09-2016 | Result: Allowed

Appeal Details

RSA Number 3722524 RSA 2016
Assessee PAN AAYPA8556F
Bench Hyderabad
Appeal Number MA 37/HYD/2016
Duration Of Justice 7 month(s) 17 day(s)
Appellant Sailesh Kumar Agarwal, Hyd, Hyderabad
Respondent DCIT, Circle-5(1), Hyd, Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 30-09-2016
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 30-09-2016
Date Of Final Hearing 16-09-2016
Next Hearing Date 16-09-2016
Assessment Year 2008-2009
Appeal Filed On 12-02-2016
Judgment Text
MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH HYDERABAD BEFORE SMT. P. MADHAVI DEVI JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN ACCOUNTANT MEMBER M.A. NO.37/HYD/2016 (ARISING OUT OF ITA NO.1211/HYD/2011) (ASSESSMENT YEAR: 2008-09) SRI SAILESH KUMAR AGARWAL HYDERABAD PAN: AAYPA 8556 F VS ASSTT. COMMISSIONER OF INCOME TAX CIRCLE 5(1) HYDERABAD FOR ASSESSEE: SRI A. SRINIVAS FOR REVENUE: SRI A. SITHARAMA RAO DR O R D E R PER SMT. P. MADHAVI DEVI J.M. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE U/S 254(2) OF THE I.T. ACT SEEKING DIRECTION/CLARIF ICATION IN THE ORDER OF THE TRIBUNAL DATED 20.07.2012 2. IN THE ABOVE APPLICATION IT IS STATED THAT THE ASSESSEE WHO IS IN THE BUSINESS OF TRADING IN JEWELLERY HAD FLOATED A LUCKY DRAW AND MONTHLY GOLD SCHEME CONSISTING OF 250 MEMB ERS AND THE SCHEME WAS FOR A DURATION OF 20 MONTHS. IT IS S UBMITTED THAT THE ASSESSEE HAD SHOWN THE MEMBERSHIP AMOUNT RECEIV ED AS SUNDRY CREDITORS AND REFLECTED THE SAME AS SALES IN THE YEAR IN WHICH THE LUCKY DRAW GETS CONCLUDED. BUT DURING THE A.YS 2006- 07 AND 2008-09 THE AO ASSESSED THE RECEIPT OF THE MEMBERSHIP FEE DURING THE PARTICULAR YEAR AS CASH CREDITS AND TREATED IT AS ASSESSEES INCOME U/S 68 OF THE ACT AND IT WAS CHAL LENGED BEFORE DATE OF HEARING : 16.09.2016 DATE OF PRONOUNCEMENT : 30.09.2016 MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 2 OF 3 THE CIT (A) AND ALSO BEFORE THE ITAT WHEREIN THE AD DITION OF RS.43 99 060 ON ACCOUNT OF MONIES COLLECTED AS PART OF ASSESSEES MONTHLY GOLD SCHEME LUCKY DRAW WAS CONFIRMED. 3. IN THIS M.A. IT IS STATED THAT AT THE END OF TH E INSTALLMENT THE MONEYS WERE TRANSFERRED TO THE SAL ES A/C AND THE SAID AMOUNTS WERE OFFERED TO TAX IN THE RELEVANT A. YS. IT IS SUBMITTED THAT BY VIRTUE OF THE ITAT ORDER IT IS R ESULTING IN DOUBLE TAXATION OF THE SAME AMOUNT TWICE CAUSING LOSS AND HARDSHIP TO THE ASSESSEE. HE SUBMITTED THAT THE ASSESSEE HAD FI LED APPLICATIONS U/S 154 OF THE I.T. ACT BEFORE THE AO TO GIVE CONSEQUENTIAL RELIEF IN THE RELEVANT A.YS BY REDUCIN G THE RESPECTIVE AMOUNT FROM THE SALES. HE SUBMITTED THAT THE SAID A PPLICATION IS PENDING BEFORE THE RESPECTIVE AOS. HE THEREFORE PR AYED FOR A CLARIFICATION FROM ITAT THAT IN THE YEARS WHEN THE AMOUNTS ARE TRANSFERRED TO SALES A/C THE SAME SHOULD BE REDUCE D FOR COMPUTATION PURPOSES AS THE SAME HAS ALREADY BEEN SUBJECTED TO TAX IN THE INITIAL YEAR OF THE INSTALMENT SCHEME. 4. THE LEARNED DR ON THE OTHER HAND SUPPORTED THE ORDERS OF THE TRIBUNAL AND SUBMITTED THAT NO FURTHE R CLARIFICATION IS NECESSARY. HE ALSO SUBMITTED THAT FURTHER DIREC TION IN RESPECT OF THE A.YS NOT BEFORE THE TRIBUNAL CANNOT BE GIVEN BY THE TRIBUNAL AND THAT SUCH A DIRECTION BY THE TRIBUNAL WOULD RESULT IN THE REFUND OF THE TAX ON THE ACCEPTED AND RETURNED INCOME OF THE ASSESSEE WHICH IS NOT PERMISSIBLE. 5. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD WE FIND THAT THE TRIBUNAL HAS CONFIRMED THE ADDITION OF RS.43 99 060 AS THE INCOME OF THE A.Y 2008-09. CONSE QUENT TO MA NO 37 OF 2016 SAILESH KUMAR AGARWAL HYDE RABAD PAGE 3 OF 3 THE SAME THE SALES OFFERED BY THE ASSESSEE IN THE SUBSEQUENT A.YS SHOULD BE REDUCED BUT IF THE ASSESSEE HAS VOLU NTARILY OFFERED THE SAME THE AO CANNOT REFUND THE TAX PAID ON ADMI TTED INCOME. FURTHER AS RIGHTLY POINTED OUT BY THE LEARNED DR T HIS TRIBUNAL CANNOT GIVE A DIRECTION FOR THE A.YS NOT BEFORE IT. THEREFORE IN OUR OPINION IT WOULD BE IN THE INTEREST OF JUSTICE TO ADD ONLY THE FOLLOWING SENTENCE AT THE END OF PARA 18 OF THE TRI BUNALS ORDER IN ITA NO.525 & 1211/HYD/2011 DATED 20.07.2012. THE ASSESSEE SHALL HOWEVER BE AT LIBERTY TO MAKE A CLAIM FOR REDUCTION OF SALES IN THE YEARS IN WHICH IT HAS OFFERED TO TAX AND THE AO SHALL CONSIDER THE SAME O N MERITS IN ACCORDANCE WITH LAW. 6. IN THE RESULT MISCELLANEOUS APPLICATION OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH SEPTEMBER 2016. SD/- SD/- (S.RIFAUR RAHMAN) ACCOUNTANT MEMBER (P. MADHAVI DEVI) JUDICIAL MEMBER HYDERABAD DATED 30 TH SEPTEMBER 2016. VINODAN/SPS COPY TO: 1 SHRI SHAILESH KUMAR AGARWAL 5-9-273 TO 291/A-19 & 20 BASHEERBAGH HYDERABAD 2 DY. COMMISSIONER OF INCOME TAX CIRCLE 5(1) AAYAK AR BHAVAN BASHEERBAGH HYDERABAD 3 CIT (A)-V HYDERABAD 4 CIT IV HYDERABAD 5 THE DR ITAT HYDERABAD 6 GUARD FILE BY ORDER