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M/s Risk Design And Advertising Ltd., Plot No.8, Shah Industrial Estate, Off Veera Desai Road, Andheri (W), Mumbai-400053 Vs. The Dy. Commissioner of Income Tax CC 38, Mumbai.
February, 26th 2015
                    ,                  ""          
      IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI

BEFORE HON'BLE S/SHRI H.L. KARWA, PRESIDENT AND B.R.BASKARAN (AM)
         .. ,                           .. ,   

                   MISC.APPLICATION No.429/Mum/2014
                arising out of I.T.A. No.2332/Mum/2012
               (   / Assessment Year :2008-09)

  M/s Risk Design And Advertising / The Dy. Commissioner of Income
  Ltd.,                                  Tax CC ­ 38,
  Plot No.8, Shah Industrial Estate, Vs. Mumbai.
  Off Veera Desai Road,
  Andheri (W),
  Mumbai-400053
       ( /Appellant)              ..      (    / Respondent)
             . /   . / PAN/G IRNo.: AACCD0946R


           /Appellant by:               Dr.P.Daniel

              /Respondent by:           ShriSchidanand Dube

              / Date of Hearing
                                                : 20.2.2015
             /Date of Pronouncement : 25.2.2015

                                / O R D E R


 Per B.R.BASKARAN, Accountant Member:

       The assessee has filed this Misc. Application against the order dated

 10.11.2014 passed by the Bench in ITA No. I.T.A. No.2332/Mum/2012 for

 Assessment Year 2008-09.


 2.    The ld.counsel appearing for the assessee submitted that the

 assessee, vide ground No.2, had sought for relief of Rs.2.60 crores.

 However, the Bench has dismissed the same by stating that the AO has

 not made any addition of Rs.2.60 crores to the total income. The ld.

 Counsel submitted that the assessee had originally offered the above said
                                                             MA 429/Mum/2014
                                    2


amount of Rs.2.60 crores in the return of income filed by it for the

assessment year 2008-09.     The above said amount was offered in AY

2008-09 consequent to the composite offer made during the course of

survey operation conducted in the assessee's group.       However, while

finalizing the assessment for the assessment year 2006-07, the AO has

persuaded the assessee to file revised return of income for AY 2006-07 by

including the very same amount of Rs.2.60 crores. Consequently, the

assessee filed the revised return and accordingly the above said amount of

Rs.2.60 crores was offered in AY 2006-07. He submitted that the assessee

did not prefer any appeal against the assessment order passed for AY

2006-07.   Since there cannot be double assessment of same income, the

assessee sought relief of Rs.2.60 crores in assessment year 2008-09 in the

appeal filed before the ld.CIT(A). However, the First Appellate Authority

rejected the same on the reasonings that the AO did not make any

addition and further the assessee could make such claim, only by filing

revised return of income as per the decision of Hon'ble Supreme Court

rendered in the case of Goetze (India) Ltd. v. CIT [284 ITR 323 (SC)].

Accordingly, the assessee challenged the said decision of ld.CIT(A) in

ground No.2 filed before the     ITAT.   However, the Tribunal did not

consider the arguments advanced in that behalf at the time of hearing.

The ld. counsel further submitted that the decision rendered by the

Hon'ble Supreme Court in the case of Goetze (India) Ltd (supra) does not

impinge the power of Appellate Authority and the said legal position has
                                                              MA 429/Mum/2014
                                     3


been clarified by the Hon'ble Jurisdictional High Court in the case of

Pruthvi Brokers & Shareholders Pvt. Ltd. (2012) 349 ITR 336. The ld.

Counsel further submitted that the assessee has accepted the assessment

of Rs.2.60 crores in the assessment year 2006-07 and hence the assessee

is legally entitled to exclude the said income from the total income

computed for AY 2008-09. He further submitted that the claim made by

the assessee for exclusion of the above said amount is a legal claim and

hence the same can be urged before the Appellate authorities for the first

time also. He submitted that the assessee urged all these issues before

the Tribunal and the Tribunal did not give its decision thereon.

Accordingly he submitted that non-consideration of the claim of the

assessee has resulted into a mistake apparent from record, which needs to

be rectified.


3.    We have heard the ld.DR and perused the record. A perusal of the

assessment order would show that the AO did not make any addition to

the total income returned by the assessee. In fact, the AO has accepted

the total income of Rs.2.07 crores declared by the assessee in its return of

income. According to the assessee the above said total income of Rs.2.07

crores includes the amount of Rs.2.60 crores offered during the course of

survey operations. The case of the assessee is that that, subsequent to

the filing of the return of income for the assessment year 2008-09, the

assessee was constrained to offer very same amount of Rs.2.60 crores in

the assessment year 2006-07 by filing the revised the return of income.
                                                              MA 429/Mum/2014
                                     4





The ld.counsel made a statement at a Bar that the assessee did not file

any appeal against the assessment order passed for the assessment year

2006-07, wherein the amount of Rs.2.60 crores was assessed by the AO.

Since the amount of Rs.2.60 crores was assessed in AY 2006-07, the

assessee filed a ground of appeal before the ld.CIT(A) in the appeal filed

for the assessment year 2008-09 for exclusion of the amount of Rs.2.60

crores already admitted in the return of income filed for AY 2008-09.

However, the ld.CIT(A) rejected the said contention on the reasoning that

the AO has not made any addition to returned income and also further, on

the reasoning that the assessee could make such claim by filing revised

return of income only, in view of the decision of the Hon'ble Supreme

Court rendered in the Goetze (India) Ltd (supra). Not satisfied with the

decision of Ld CIT(A), the assessee has urged Ground no.2 before the

Tribunal. Though the assessee has contested the said ground of appeal

by urging various contentions, yet the Tribunal has failed to address all of

them, more particularly the contention urged in the context of decision of

the Hon'ble Supreme Court rendered in the case of Goetze (India) Ltd

(supra). Hence, we are of the view that the non-consideration of all the

contentions, more particularly the legal contentions urged by the assessee,

has resulted into a mistake apparent from the record. Accordingly, we find

merit in the MA filed by the assessee.
                                                              MA 429/Mum/2014
                                     5


4.    With the consent of both the parties, we also heard the parties on

merits with respect to Ground No.2 urged by the assessee.         As stated

earlier the AR has given a statement at Bar to the effect that the assessee

has accepted the assessment of Rs.2.60 crores in the assessment year

2006-07, by not filing any appeal before the Appellate authority. Further,

it is a settled proposition of law that the Income Tax Act does not provide

for double assessment of the same income, whether in the same year or in

two assessment years. Under these set of facts, we are of the view that

there is, prima facie, some merit in the claim of the assessee for exclusion

of the amount of Rs.2.60 crores in AY 2008-09. Even though the Hon'ble

Supreme Court has held in the case of Goetz India Ltd (supra) that fresh

claims could be made by the assessee only by filing revised returns of

income, yet the Hon'ble Apex Court has, in clear terms, held that the said

decision does not impinge the power of the Tribunal. It is well settled

proposition of law that the assessing officer is required to compute the

correct total of income and further, as stated earlier, there could not be

double assessment of same income.





5.     Under these set of facts, we are of the view that the claim of the

assessee for exclusion of Rs.2.60 crores from the total income computed

for AY 2008-09 on the ground of double assessment needs to be

considered by the assessing officer, since the claim of the assessee needs

to be examined with the relevant facts.     Accordingly, we set aside the

order of ld. CIT(A) and restore the matter stated above to the file of the
                                                                MA 429/Mum/2014
                                      6


AO with the direction to examine the same afresh after giving adequate

opportunity of being heard to the assessee and take appropriate decision

in accordance with the law.


6.     In the result, the MA filed by the assessee is allowed and ground

No.2 urged in the appeal is treated as allowed.


     The above order was pronounced in the open court on 25th Feb, 2015.

             25th Feb, 2015    


        sd                                               sd/-

(.. / H.L. KARWA)                         (..  ,/ B.R. BASKARAN)
  / PRESIDENT                               /Accountant Member

  Mumbai: 25th Feb,2015.


. ../ SRL , Sr. PS


        /Copy of the Order forwarded to :
1.  / The Appellant
2.  / The Respondent.
3.     () / The CIT(A)- concerned
4.      / CIT concerned
5.       ,     ,                   /
      DR, ITAT, Mumbai concerned
6.     / Guard file.


                                                          / BY ORDER,
             true copy
                                                    (Asstt. Registrar)
                                      ,   /ITAT, Mumbai

 
 
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