IN THE ITAT MUMBAI BENCH ‘SMC’
Shrikant Real Estates (P.) Ltd.
IT Appeal No. 4304 (Mum.) of 2012
Mumbai  140 ITD 155 (Munbai – Trib)
[Assessment Year 2008-09]
October 19, 2012
N.K. Billaiya, Accountant Member
With this appeal the assessee has challenged the correctness of the order of the Ld. CIT(A)-8, Mumbai dt.2.5.2012 pertaining to assessment year 2008-09.
2. The assessee has questioned the correctness by raising the following grounds of appeal:
“1. The Ld. CIT(A) erred in confirming the action of the AO in rejecting the application for rectification u/s. 154 of the I.T. Act, 1961 made by the appellant company.
2. The Ld. CIT(A) further erred in confirming the action of the AO in computing the income tax payable on short term capital of Rs. 2,65,853/- at the normal rate of 30% as against tax payable @ 10% as provided in Sec. 111A of the I.T. Act, 1961.”
3. Briefly stated the facts of the case are that for the year under consideration, the assessee filed e-return which was revised by filing another e-return on 5.1.2009. The assessee received intimation u/s. 143(1) of the Act and found that the income assessed and the rate of tax is different from the income returned and the taxes paid by him. The assessee immediately moved an application u/s. 154 of the Act before the AO stating that as per intimation u/s. 143(1), the taxable income is shown at Rs. 4,80,610/- against the returned income at Rs. 4,47,454/-. It was further pointed out that the tax has been calculated at normal rate on entire income ignoring the fact that the assessee has shown Short term Capital gain at Rs. 2,65,853/- which should have been taxed at special rate as applicable on Short Term Capital gain. The AO rejected the application u/s. 154 of the Act holding that the assessee has not shown Short Term Capital Gain u/s. 111A at S. No. A7 of Schedule CG appearing on page 19 of the e-return. The AO further observed that the same mistake has been occurred in the original as well as in the revised return of income filed by the assessee. According to the AO, the proper remedy was by filing a revised return of income instead of moving an application u/s. 154 of the Act. The AO accordingly rejected the application u/s. 154 of the Act.
4. Aggrieved, the assessee took the matter before the Ld. CIT(A) but without any success.
5. The Ld. Counsel for the assessee drew our attention to page 19, 27 and 32 of the Paper Book which are part of the e-return filed for the year under consideration. Drawing our attention to internal page-11 of the revised e-return, the Ld. Counsel pointed out that at item No. 3 a(i) inadvertently and due to clerical error in the amount column, it has been mentioned as Nil. However, at the same time under Item No. (3aii) and (3aiii) Short Term capital gain had been shown at Rs. 2,65,853/-. Further drawing our attention to internal page P-19 of the revised e-return under schedule CG-capital gain, although at Item No. 6, the assessee has shown total short term capital gain at Rs. 2,65,853/- but again due to inadvertence and clerical error at item No. 7 – Short Term Capital gain u/s. 111A included in 6 shown as Nil. The Ld. Counsel argued that due to these clerical errors, the mistake occurred which deserves to be rectified.
6. Per contra Ld. Departmental Representative supported the findings of the lower authorities.
7. We have heard the rival submissions and perused the orders of the lower authorities and the copy of the revised e-return filed by the assessee. In the present system of e-filing of return which is totally depended upon the usage of software, It is possible that some clerical errors may occur at the time of entering the data in the electronic form. The return is prepared electronically which is converted into an XML file either through the free down loaded software provided by the CBDT or by the softwares available in the market. In either of the case, there is every possibility of entering incorrect data without having the expert knowledge of preparing an XML file. XML file so created is uploaded to the official Website i.e. www.Incometaxindiaefiling.gov.in. Once the return is uploaded ITR-V , which is the acknowledgement of the return so filed , is generated by the system itself and if , the return is not signed digitally, then ITR-V so generated has to be signed and sent to Central Processing Centre, Bangluru within 120 days.
8. Keeping in mind this system of e-filing of the returns , Coming back to the facts of the case, we find that the assessee has claimed Short Term Capital Gains and has shown it in the revised e-return but the same figure did not appear under the item where the short term capital gain is to be taxed at special rate u/s. 111A of the Act i.e. internal page-19 of the return under Schedule CG – Capital gains under item No. 7. However, at the same time we find that under Schedule SI-income chargeable to income tax at special rates IB which is at internal P-24 of the return, the assessee has shown Short Term Capital Gains (iiia) special rate 10% income Rs. 2,65,853 tax thereon Rs. 26585/- which clearly establishes that the assessee has shown Short Term Capital Gains liable to be taxed at special rate of 10%. Accordingly, reversing the finding of the Ld. CIT(A), we direct the AO to allow credit of the Short Term Capital gains subject to special rate of tax as per provisions of Sec. 111A of the Act and rectify the intimation u/s. 143(1) accordingly.
9. In the result, the appeal filed by the assessee is allowed.