Income Tax Appellate Tribunal - Kolkata
Ashok Kumar Mondal, Burdwan vs Ito, Ward - 2(2), Asansol, Asansol on 16 February, 2018
आयकर अपील य अधीकरण, यायपीठ - "B" कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "B" KOLKATA
Before Shri N.V.Vasudevan, Judicial Member and
Shri Waseem Ahmed, Accountant Member
व वध आवेदन (Misc. Application)
M. ANo.184/Kol/2017
(arising out ITA No.163/Kol/2014)
नधारण वष / Assessment Year:2010-11
Ashok Kumar Mondal बनाम Income Tax Officer,
Begunia More, Post /V/s. W ard-2(2), Asansol,
Barakar, Dist. Burdwan, Sahana Apartment,
Pin 713 324 Lower Chelidanga,
[P AN No. ADZPM 7709 G] Asansol-713304
(original appellant) (original Respondent)
(Applicant) .. (Respondent)
अपीलाथ क ओर से /By Applicant
!"यथ क ओर से / By Respondent Shri S.Dassgupta, Addl. CIT-SR-
DR
सन
ु वाई क तार ख / Date of Hearing 16-02-2018
घोषणा क तार ख / Date of Pronouncement 16-02-2018
आदे श / ORDER
PER Waseem Ahmed, Accountant Member:-
By way of this Miscellaneous Application (MA) the assessee seeks to rectify the mistake apparent from record in the order of Tribunal in ITA No.163/Kol/2014 passed on 16.09.2016.
2. At the time of hearing nobody appeared from the side of assessee, however, we find that the MA filed by the assessee can be disposed of without the appearance of Ld. AR for the assessee. Therefore, we proceed to adjudicate the issue raised by assessee in his MA after hearing Ld. DR for the Revenue.
3. The grievance raised by assessee is that amount involved in dispute was at ₹68,15,748/- only. However while deciding the appeal, the Tribunal inadvertently has recorded the amount of ₹62,68,458/-. Thus, it was prayed to make the necessary rectification in the order of Tribunal.
MA No184/Kol/2017
Ashok Kr. Mondal vs. ITO Wd-2(2), Asl Page 2
4. Ld. DR conceded the mistake apparent from record but drew our attention on the ground of appeal raised by assessee in Memo of Appeal in Form 36 and submitted that the ground recorded in the order of Tribunal and the ground raised by assessee in Memo of Appeal in Form No. 36 are different.
5. We have heard Ld. DR and perused the materials available on record. We note that assessee in his appeal has raised the following grounds of appeal, which are reproduced below:-
"1) For that the order of Ld. CIT(A) is arbitrary, excessive and hence bad in law.
2) For that on the facts of the case the Ld. AO was not justified in disallowing the payment to the creditors worth Rs.6815748/- u/s. 40A(33) of the IT Act' 1961. The payment as made to the creditors is allowed under Rule 6DD(b) and the addition as made for violation of section 40A(3) is not applicable in the instant case and hence it should be deleted.
3) For that the appellant craves leave to add, alter, and amend any further grounds of appeal before or at the time of hearing."
It is undisputed fact that Tribunal has recorded other grounds while adjudicating the issue raised in the grounds of appeal. The grounds recorded by Tribunal in its order has already been recorded in ITA No.163/Kol/2014, which is also reproduced below:-
"(1) For that the order of the ld. CIT(A) is arbitrary, illegal and bad in law. (2) For that the ld. CIT(A) erred in confirming the addition of Rs.62,68,458/- being the amount paid for purchase of country liquor under the rules and directions framed by the Government, paid as such, the provisions of section 40A(3) were not applicable. (3) For that the ld. CIT(A) erred in confirming the addition of Rs.62,68,458/- when the payment was directly made in the bank account of the seller and a such the provisions of sec. 40A(3) were not applicable.
(4) For that the ld. CIT(A) erred in confirming the addition of Rs.62,68,458/- when village where the assessee's shop was established had no banking facility and the payment made directly to the bank account of the seller was not hit by the provisions of sec.40A(3) (5) For that even otherwise having regard to the nature and extent of banking facilities available consideration of business expediency and other relevant factors the ld. CIT(A) erred in confirming the addition made by the AO u/s 40A(3). (6) For that the ld. CIT(A) erred in confirming the addition of Rs.20,640/- from carriage inward Rs.2,57/- from Tel. and Mobile expenses Rs.6,143/- from shop expenses Rs.6,807/- from electric expenses on adhoc basis when the expenses were fully incurred for business expenses and considering the turnover of the business the expenses incurred were quite fair and reasonable. (7) For that on the facts and circumstances of the case the order of the CIT(A) be modified and the assessee be given the relief prayed for."
However on perusal of the grounds of appeal raised by assessee as well as ground recorded by Tribunal, the issue arose with regard to violation of provision of Section 40A(3) of the Income Tax Act, 1961. Thus, the order rendered by the Tribunal cannot be said erroneous merely that the grounds recorded by the Tribunal are different with MA No184/Kol/2017 Ashok Kr. Mondal vs. ITO Wd-2(2), Asl Page 3 the grounds filed in Memo of Appeal in Form 36. As the grievance in the grounds of appeal raised by the assessee as well as in the ground recorded by the Tribunal are common, thus, the principle on which the order was rendered by the Tribunal suffers no infirmity except the amount involved. Accordingly, we hold that the ground recorded by the Tribunal will be substituted with the grounds raised by assessee. Similarly, the disputed amount recorded by the Tribunal for ₹62,68,458/- will be substituted with the amount of Rs.68,15,748/-. Thus, the grievance raised by assessee is answered accordingly. Hence, the assessee will be entitled to keep relief for an amount of Rs.68,15,748/- only. We order accordingly. Consequently, MA of assessee is allowed.
6. In the result, MA of assessee stands allowed.
Order pronounced in the court at the close of the hearing i.e. 16th February, 2018.
Sd/- Sd/- ( या यक सद(य) (लेखा सद(य) (N.V.Vasudevan) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata, *Dkp *दनांकः- 16/02/2018 कोलकाता । आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-Ashok Kr.Mondal, Begunia More, Post Barakar, Dist. Burdwan,Pin 713324
2. !"यथ /Respondent-Income Tax Officer, Ward-2(2), Sahana Apartment, Lower Chelidanga, Asansol-713304
3. संबं5धत आयकर आयु6त / Concerned CIT
4. आयकर आयु6त- अपील / CIT (A)
5. वभागीय ! त न5ध, आयकर अपील य अ5धकरण, Kolkata / DR, ITAT, Kolkata
6. गाड फाइल / Guard file.
By order/आदे श से, /True Copy/ Sr. Private Secretary Head of Office/DDO आयकर अपील य अ5धकरण, कोलकाता ।