Ita/301/2010 Of Sri.v.r.sreekumar v. The Commissioner Of Incometax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 15TH SEPTEMBER 2010 / 24TH BHADRA 1932 ITA.No. 301 of 2010() --------------------- ITA.304/COCH/2008 of I.T.A.TRIBUNAL,COCHIN BENCH .................... APPELLANT: -------------------- V.R.SREEKUMAR,M/S.SNEHA FUEL LAND, TRICHUR. BY ADV. SRI.P.BALAKRISHNAN (E) SRI.V.SREEKUMAR SRI.TONY CHACKO RESPONDENT(S): --------------- THE COMMISSIONER OF INCOME TAX, CENTRAL,TRICHUR. BY SC SRI. JOSE JOSEPH. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 15/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -------------------------------------------- -------------------------------------------- Dated this the 15th day of September, 2010 JUDGMENT Ramachandran Nair, J. The question raised in the appeal filed against the order issued bythe Tribunal in M.P. produced as Annexure E is whether the Tribunalwas justified in clarifying through earlier order retaining the addition atRs. 10 lakhs and by further stating that deletion ordered was only Rs.5,91,650/-. We have heard counsel appearing for the appellant andhave gone through the original order of the Tribunal and revised orderissued by them in rectification proceedings based on application filedby the revenue, which is under challenge in this appeal. Whenassessment of the appellant was considered by the Officer for theassessment year 1999-2000, the assessing officer noticed that there wasno source for Rs. 15,91,650/- which is a cash advance by the assesseefor taking over a property from another person based on Power ofAttorney executed by the owner of the property. The assesseeproduced particulars regarding funds availed from his wife and father- in-law. The assessing officer accepted the source pertaining to Rs.5,91,650/- received from his wife. Therefore he retained the additiononly for the balance amount of Rs. 10 lakhs. When the appellant filedappeal before the CIT (Appeals), the CIT (Appeals), who has the powerto enhance the assessment found that source explained for Rs.5,91,650/- also is not acceptable and therefore he enhanced theassessment by increasing the addition from Rs. 10 lakhs to Rs.15,91,650/- against which the assessee filed appeal before the Tribunal.The Tribunal however deleted the addition made by the CIT (Appeals),obviously by retaining the original addition sustained in assessment,that is Rs. 10 lakhs. However, in the Tribunal's order there is amistaken statement that enhancement made by the CIT to the tune ofRs. 15,91,650/- has to be reduced. Though the assessing officer bymechanically following the sentence in the Tribunal's order deleted theentire addition and reversed the order, he filed an application before theTribunal for correcting the order. The Tribunal vide Annexure E orderclarified that deletion was only Rs. 5,91,650/- and the additionoriginally made in assessment that is Rs. 10 lakhs shall remain sustained in the Tribunal's order. Even though counsel for theappellant pointed out that Tribunal had allowed the claim in theoriginal order, we are unable to accept the contention because what isspecifically found by the Tribunal is that addition or enhancementmade by the CIT (Appeals) is not sustainable. In fact they have rightlytreated one sentence in their original order as a mistake in asmuch asdeletion ordered which is the addition made by CIT (Appeals) was Rs.5,91,650/-whereas the Tribunal in their original order wrongly statedthe deletion as Rs. 15,91,650/-. In other words, appellant's challengeagainst rectified order of the Tribunal lacks merits because Tribunalhas only corrected a mistake in their original order through Annexure Eorder. If at all appellant had any grievance he should have challengedthe original order of the Tribunal that is Annexure D which was passedon 22.6.2009. Since no appeal was filed against that order, additionsustained in the original order and confirmed by the Tribunal cannot beinterfered with by this Court in an appeal filed against rectified orderissued by the Tribunal. In other words, the question raised, that isaddition of Rs. 10 lakhs, does not arise from the order of the Tribunal. Consequently appeal is dismissed. (C.N.RAMACHANDRAN NAIR) Judge. (K. SURENDRA MOHAN) Judge. kk