ITO, HANUMANGARH V. Smt. Prem Devi, HANUMANGARH JUNCTION

ITA 353/JODH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7852 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 19-09-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 30-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: U C JAIN
• Section: 154

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 353 /JODH/2014 (A.Y. 200 9 - 1 0 ) ITO, WARD - 2, HANUMANGARH. VS. SMT. PREM DEVI, PROP. M/S. VIKASH CONSTRUCTION CO. , SECTOR NO. 9/2, NEAR NIRANKARI SATSANG BHAWAN, HANUMANGARH JN. (APPELLANT) PAN NO. AJZPD 6961 F (RESPONDENT) ASSESSEE BY : SHRI U.C. JAIN & SHRI RAJENDRA JAIN . DEPARTMENT BY : SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 1 9 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 22 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 25 /02 /201 4 OF L D . CIT(A), BIKANER . THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING ADDITION OF RS. 10,26,850/ - MADE ON ACCOUNT OF APPLYING NP RATE @ 5% . 2 THE APPELLANT RESERVES ITS RIGHT TO ADD, AMEND OR ALTER THE GROUND S OF APPEAL ON OR BEFORE THE DATE THE APPEAL IS FINALLY HEARD FOR DISPOSAL. 2 DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET STATED THAT THIS APPEAL BY THE DEPARTMENT IS NOT MAINTAINABLE BECAUSE THE GROUND TAKEN IS NOT ARISING OUT OF THE ORDER PASSED BY THE LD. CIT(A) U/S. 154 OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) RATHER THE GROUND TAKEN IS ARISI NG OUT OF THE ORDER DATED 31/12/2013 PASSED IN APPEAL NO. 345/BIKANER/2011 - 12 AND IF THE APPEAL HAS BEEN FILED AGAINST THE SAID ORDER, IT IS BARRED BY LIMITATION , SO , NOT MAINTAINABLE. EVEN ON MERIT , LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE LD. CIT(A) WHILE PASSING THE ORDER U/S. 154 OF THE ACT HAS TAKEN A JUST VIEW AND TH E FINDING OF THE LD. CIT(A) HAS NOT BEEN CHALLENGED BY THE DEPARTMENT. THEREFORE, THERE IS NO MERIT IN THIS APPEAL OF THE DEPARTMENT . 3. ON THE OTHER HAND , LEARNED D.R. SUBMITTED THAT THE ORDER PASSED BY THE LD. CIT(A) WAS COMMUNICATED TO THE DEPARTMENT ON 22/04/2014. THEREFORE, THE APPEAL FILED ON 28/05/2014 IS WITHIN TIME . AS REGARDS TO THE MERIT OF THE CASE, LEARNED D.R. SUPPORTED THE ORDER OF THE ASSESSING OFFI CER . 4. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND THE MATERIAL ON RECORD, IT APPEARS THAT THE DEPARTMENT HAS FILED THE APPEAL 3 AGAINST THE ORDER DATED 25/02/2014 PASSED U/S. 154 OF THE ACT. IN THE SAID ORDER , THE LD. CIT(A) RECTIFIED THE MISTAKE BY STATING THAT THE ERROR HAD OCCURRED DUE TO TYPING MISTAKE WHICH IS APPARENT FROM THE RECORD BECAUSE IN THE EARLIER ORDER DATED 31/12/2013, THE GROSS PROFIT RATE OF 5% SUBJECT TO INTEREST AND REMUNERATION TO THE PARTNERS AND DEPRECI ATION WAS WRONGLY MENTIONED WHICH COULD HAVE BEEN IN THE CASE OF PARTNERSHIP FIRM WHILE THE ASSESSEE IS A PROPRIETORSHIP FIRM AND THE NET PROFIT RATE OF 0.80% WAS JUSTIFIABLE CONSIDERING THE PAST HISTORY OF THE ASSESSEE. IN THE PRESENT CASE, THE MISC. APPLICATION U/S. 154 OF THE ACT WAS FILED BY THE DEPARTMENT WHICH WAS ALLOWED BY THE LD. CIT(A) AND THE MISTAKE WAS RECTIFIED. THEREFORE, THERE COULD NOT HAVE BEEN ANY GRIEVANCE TO THE DEPARTMENT . IN THAT VIEW OF THE MATTER, WE DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT. 5. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED. ( ORDER PRONOUNCED IN THE COURT ON 22 ND SEPTEMBER , 201 4) . ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 22 ND SEPTEMBER , 201 4 . VR/ - 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .