2012 (7) TMI 335 - AT - Income Tax

Addition of Gross Profit - notional tax effect - AO has not established any case of bogus claim or double deduction of expenses by the appellant Rectification under Section 254(2) of IT Act Held that - At the time when the impugned appeal of the Revenue was dismissed by the Tribunal vide order dated 14-05-2010, reliance was placed on certain decisions and the CBDT Circular available at that time adjudication was proper after due consideration of the facts as also the law applicable at that point of time - All the latest development thereafter thus raised a controversy and being controversial in nature therefore cannot be made the basis for rectification of the order as prescribed under Section 254(2) of IT Act - petition of the Revenue dismissed

Summary

Issues:
1. Appeal filed by Revenue against deletion of addition of Gross Profit.
2. Applicability of CBDT Circulars in cases of NIL assessment.
3. Notional tax effect exceeding prescribed limit for maintainability of appeal.
4. Debate on whether notional income can be considered for computing annual value.

Analysis:

1. The Tribunal dismissed the Revenue's appeal against the deletion of the addition of Gross Profit. The Departmental Representative argued that the addition might have tax implications beyond the prescribed limit, making the appeal maintainable. However, the Tribunal found the question of CBDT Circular applicability settled and relied on previous decisions and a Delhi High Court ruling to dismiss the appeal as not maintainable.

2. The Revenue moved a miscellaneous petition, stating that the assessing officer had added a sum to the total income of the assessee based on the difference in gross profit shown. The CIT(A) had deleted the addition, leading to the Revenue's appeal before the ITAT. The Tribunal dismissed the appeal based on the tax effect being below the prescribed limit, citing a decision of the Delhi High Court. The Revenue argued that the notional tax effect exceeded the limit, but the Tribunal found the issue debatable and not suitable for rectification under the IT Act.

3. Regarding the notional tax effect, the Tribunal considered Instruction No. 05 of 2008 and referenced a case withdrawn from a special bench. The Gujarat High Court had admitted a question on whether the Tribunal was right in dismissing an appeal based on low tax effect exceeding the prescribed limit. The respondent assessee argued that the issue had become debatable post the Tribunal's decision, making it unsuitable for rectification under the IT Act.

4. Considering the developments and controversies post the Tribunal's decision, the Tribunal found that the issue had become debatable and controversial. Therefore, the Tribunal dismissed the Revenue's petition, stating that the rectification under Section 254(2) of the IT Act was not applicable due to the evolving nature of the issue and the law at the time of the original decision.