2018 (10) TMI 1493 - AT - Income Tax

Rectification of mistake u/s 154 - reconciliation of total turnover as per TDS certificate and as per books of account - Held that - The present AO has examined all the TDS certificates and claimed that they are not matching with the figures of books of account. Undoubtedly, the present AO at this juncture, has raised a completely different issue before the Hon ble Bench, that is the income relating to all the other TDS certificates , which was neither the issue raised by the AO in the original assessment order nor was the issue for adjudication before the CIT(A) and before the Tribunal. Therefore such a different issue which has no connection with the issue cannot be a matter of miscellaneous application as filed by the revenue u/s 254(2) of the Act. We note that the ld. DR has tried to raise a new issue which neither was before AO nor was the issue for adjudication before the Bench. Therefore considering these facts we do not think that there is a mistake apparent on record. It is a well settled position of law that in order to be a mistake apparent from the record of the case, it must be an error apparent, obvious and glaring. In the assessee s case under consideration the Tribunal has considered the submissions of ld. DR for Revenue, as well as the ld. AR for assessee. Submissions made by Revenue has been considered by the Tribunal wherein Ld. DR argued that on verification of the TDS certificate submitted by the assessee it is found that the amount credited to ₹ 1,80,01,850/- against the TDS claimed of ₹ 1,00,991/- was not credited into the profit and loss account, therefore, the AO has rightly added back ₹ 1,80,01,850/- to the total income of the assessee. Therefore, the subject matter of the Miscellaneous Application had already been considered by the Tribunal, hence there should not be any mistake apparent from the record . Miscellaneous Application filed by the Revenue is dismissed.

Summary

Issues:
1. Discrepancy between TDS certificates and receipts not recorded in books of account.
2. Consideration of undisclosed income based on rectification petition.
3. Jurisdiction transfer and examination of TDS certificates by present AO.
4. Alleged mistake apparent from record for rectification under section 254(2) of the Income Tax Act, 1961.

Issue 1: Discrepancy between TDS certificates and receipts not recorded in books of account:
The appellant sought rectification under section 254(2) of the Income Tax Act, 1961, citing a mistake apparent in the Tribunal's order. The revenue pointed out a difference of ?56,91,041 between TDS certificates and receipts not recorded in the books of account for the assessee. The revenue contended that this difference, along with another amount of ?12,45,974, should be considered as undisclosed income. The Tribunal noted that the revenue's application did not arise from the assessment order and the previous Tribunal order. The AO had previously made an addition to the income, which was later relieved by the CIT(A) and ITAT, based on the income being credited in the profit and loss account. The present AO raised a new issue of mismatch between TDS certificates and book figures, which was not part of the original assessment, CIT(A), or Tribunal's consideration. The Tribunal concluded that the new issue raised by the present AO did not constitute a mistake apparent on record.

Issue 2: Consideration of undisclosed income based on rectification petition:
The revenue argued that the undisclosed income should include the discrepancy amount of ?56,91,041 and an additional amount of ?12,45,974, as per the rectification petition filed by the assessee. However, the Tribunal found that the new issue raised by the present AO was unrelated to the previous assessment and relief granted by the CIT(A) and ITAT. Therefore, the Tribunal dismissed the revenue's claim for considering the amounts as undisclosed income.

Issue 3: Jurisdiction transfer and examination of TDS certificates by present AO:
After the jurisdiction transfer to a new AO, discrepancies in TDS certificates were examined, leading to the claim of a mismatch of ?56,91,041 in the case of one party. The present AO also considered an additional sum of ?12,45,974 as undisclosed income based on a rectification petition. The Tribunal noted that the new issue raised by the present AO was not part of the original assessment or previous consideration by the CIT(A) and ITAT, and therefore, could not be addressed through a miscellaneous application under section 254(2) of the Act.

Issue 4: Alleged mistake apparent from record for rectification under section 254(2) of the Income Tax Act, 1961:
The Tribunal emphasized that for a mistake to be rectified under section 254(2) of the Act, it must be an error that is apparent, obvious, and glaring. The Tribunal considered the arguments presented by both the revenue and the assessee, noting that the issue raised by the revenue had already been addressed in the previous Tribunal order. The Tribunal concluded that there was no mistake apparent from the record that warranted rectification under section 254(2) of the Act, and therefore dismissed the Miscellaneous Application filed by the revenue.

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