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TMI Blog2013 (8) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... ct rejecting the same, has come before us. 3. The tribunal under the common order, set-aside the order passed by the Commissioner of CIT (Appeals), directed the assessing officer to pass orders on the rectification application dated 3.7.2001 and allowed the same in accordance with law. 4. The revenue contending that the tribunal has proceeded on a totally erroneous assumption that the application filed by the assesses seeking for rectification of the order of the assessing officer unless rectified will amount to taxing an income twice; that the income of Rs.20.00 lakhs as had been originally offered by the assesses in each case was an income that is required to be deleted as it was offered by mistake and that such income had been offered and assessed in the hands of another company by name M/s Mulberry Silks Limited (MSL) who had offered the amount for tax for the very block assessment period and it was the subject matter of proceedings before the settlement commission on an application filed by the other assessee viz., MSL and therefore bringing to tax the very amount in the hands of the present respondent/the assesses, the appellants before it, was not proper and they should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any M/s MSIL. The company followed up the matter by filing an appeal and met with success before the tribunal insofar as the assessment in its hands is concerned. 8. In the meanwhile, another company by name M/s MSL - the sister concern of M/s MSIL in which the respondents/assesses in these appeals were all common directors, made an offer before the settlement commission offering an amount of Rs.4,84,88,500/- as their share capital invested in M/s MSIL and the entire amount had been invested by the company itself and some balance investment in the share capital by M/s MSIL was by some other person as per its application dated 18.6.2001 and ultimately its application under Section 245D(4) of the Act came to be disposed of by the settlement commission on 30.3.2005 and the returns filed by the respondent/assesses disclosing the income of Rs.20.00 lakhs for the block period, the assessment order came to be passed in the case of Sri Rajendra Kumar Bothra - the respondent in ITA 91/07 on 31.1.2001 and in respect of the other four appeals which had been passed on 19.6.2001 determining their tax liability inclusive of interest and penalty and this had been followed by raising demand. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the premise of a return that the assessee himself had filed and had offered a sum of Rs.20.00 lakhs as undisclosed income of the earlier period and by way of investment in the shares of M/s MSL and therefore, there was no occasion for the assessing officer to rectify this order etc. 13. It is as against these five orders passed by the CIT - appeals rejecting the appeals of the assesses in each of their appeals, the assesses preferred further appeals to the Income Tax Appellate Tribunal and as noticed in the five appeals, the income tax appellate tribunal proceeded to pass a common order which is the subject matters of these appeals. 14. The appellate tribunal allowed all the five appeals mainly on the premise that the amount was the subject matter of search and investigation at the premises of M/s MSIL for a sum of Rs.4,84,88,500/- that the entire amount has been offered as the undisclosed income of M/s MSL by way of share investment in M/s MSIL in the application filed by M/s MSL and before the settlement commission under Section 245D(4) of the Act and when such entire amount of Rs.4,84,88,500/- had already been offered as the undisclosed income of another company M/s MSL and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome was only the amount after excluding the offer of Rs.20.00 lakhs each of the respondents/assesses and such a mistake or assumption has clearly vitiated the order. 18. Learned counsel also submits that though in the case of the Company M/s MSIL, the view taken by the appellate tribunal has been affirmed by this Court in the further appeal by the revenue by dismissing ITA 170/06 as per order dated 12.12.2011 for passing this order this Court had also proceeded on the assumption as has been made by the tribunal and the lower authorities and the matter had not been examined and therefore, at any rate, the assesses being different on the mistaken assumption is clear, matter warrants examination and therefore, questions posed in these appeals should be answered in favour of the revenue and against the assesses. 19. For such purpose, Mr Aravind has drawn our attention to the order of the settlement commission dated 30.3.2005 and the computation of tax in that and the total undisclosed income of M/s MSL is taken only to be Rs.2,65,04,626/-. It is also contended that what was sought for rectification is not the order of assessment passed by the assessing officer but a rectification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether the amount of Rs.20.00 lakhs in the hands of each of the assesses at Rs.1 crore had infact been brought to tax in the hands of any of the players in the drama viz., in the hands of M/s MSIL or in the hands of M/s MSL. 23. Perhaps this argument could have been accepted but for one reason. The stand of M/s MSIL and the present respondents-assesses, not to bring the amount of Rs.4,84,88,500/- to the extent of Rs.3,84,88,500/- in the hands of the Company and to the extent of Rs.1 crore 20 lakhs in the hands of the respondents/assesses, all proceeded on the premise that the very amount had been offered by M/s MSL before the settlement commission as its undisclosed income but a perusal of the order passed by the settlement commission does reveal that it is not the entire amount that is brought to tax as an undisclosed income of M/s MSL but it is only to the extent of Rs.2,65,04,626/-. We find that there is assumption based on which the tribunal allowed the appeal of the assessee viz., that the amount had been assessed as income of M/s MSL and that M/s MSL had also paid tax on this amount and this assumption is erroneous. 24. The tribunal which had based its conclusion for such pu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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