Appeal details
Counselvise Citation
[2016] 131 COUNSELVISE.COM (IT) 5783 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 10 month(s) 15 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
05-09-2016
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
2005-2006
Appeal Filed On
20-10-2014
Judgement Text
HARISH JHAMNANI ITA NO. 644/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNA L INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JM & SHRI N.S. SAINI, AM ITA NO.644/IND/2014 A.Y. 2005-06 SHRI HARISH JHAMNANI UJJAIN PAN ABHPG 1832E ::: APPELLANT VS INCOME TAX OFFICER 1(1) UJJAIN ::: RESPONDENT APPELLANT BY SHRI RAJENDRA SODANI RESPONDENT BY SHRI RAJIV VARSHNEY DATE OF HEARING 4.7.2016 DATE OF PRONOUNCEMENT 5.9. 2016 O R D E R THIS IS THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 27.8.2014 OF THE CIT(A), UJJAIN. 2. THE ONLY ISSUED INVOLVED IN THIS APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ACT ION OF HARISH JHAMNANI ITA NO. 644/IND/2014 2 THE ASSESSING OFFICER IN APPLYING AD-HOC ADDITION @ 5 % NET PROFIT ON THE TURNOVER OF RS.2,33,34,799/-. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT THE ASSESSEE DEALS IN WHOLESALE PURCHASE AND SALE OF POHA, PARMAL, DAL AND RICE. THE ASSESSEE FILED RETURN OF INCOM E SHOWING TOTAL INCOME OF RS.1,03,760/-. AFTER SCRUTIN Y OF THE RETURN, THE ASSESSING OFFICER MADE ADDITION OF RS. 30 ,000/- ON ACCOUNT OF TRADING RESULT AND RS. 10,000/- ON ACCOUN T OF INADMISSIBLE EXPENSES. THE LEARNED CIT PASSED AN ORD ER U/S 263 OF THE ACT BY DIRECTING THE ASSESSING OFFIC ER TO ASSESSEE THE INCOME OF THE ASSESSEE AFTER VERIFYING TH E DETAILS SUBMITTED AFTER GIVING THE ASSESSEE AN OPPORTU NITY OF BEING HEARD. IN COMPLIANCE WITH THE SAID ORDER, THE ASSESSING OFFICER PASSED ORDER U/S 143(3)/263 OF THE ACT BY APPLYING AD-HOC ADDITION @ 5% NET PROFIT ON THE TURNOVER OF RS.2,33,34,799/-. ON APPEAL, THE LEARNED CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. HARISH JHAMNANI ITA NO. 644/IND/2014 3 4. WE HAVE HEARD BOTH THE SIDES. WE FIND THAT AN IDENTICAL ISSUE HAD COME UP BEFORE THE PANAJI BENCH OF THE TRIBUNAL IN THE CASE OF SMT. SUNITA AJIT PATIL VS. ACIT ; ITA NO.190/PAN/2015 WHEREIN THE TRIBUNAL VIDE ITS ORDER DATED 28.6.2016 WHEREIN IT WAS HELD AS UNDER :- 9. IN THE PRESENT CASE, ADMITTEDLY, THE ORDER UNDER SECTION 263 HAS ONLY MODIFIED THE ASSESSMENT. THE ASSESSMENT ORDER HAS NOT BEEN CANCELLED NOR ANY FRESH ASSESSMENT DIRECTED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263. THIS BEING SO, THE ENTERTAINMENT OF THE APPEAL BY THE COMMISSIONER OF INCOME TAX (APPEALS) ITSELF IS ERRONEOUS AND WITHOUT JURISDICTION. BE THAT AS IT MAY, NO APPEAL AGAINST THE ORDER GIVING EFFECT TO THE ORDER PASSED BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263 BY THE ASSESSING OFFICER IS MAINTAINABLE BEFORE HARISH JHAMNANI ITA NO. 644/IND/2014 4 THE COMMISSIONER OF INCOME TAX (APPEALS) NOR BEFORE THE APPELLATE TRIBUNAL ALSO AS THIS APPEAL IS NOT AGAINST THE ORDER PASSED UNDER SECTION 263 BY THE COMMISSIONER OF INCOME TAX. IN THESE CIRCUMSTANCES, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED AS NOT MAINTAINABLE. 10. IN THE RESULT, APPEAL AS WELL AS STAY PETITION FILED BY THE ASSESSEE ARE DISMISSED. 5. FOLLOWING THE AFORESAID ORDER OF THE PANAJI BENCH O F THE TRIBUNAL, WE HOLD THAT IN THE PRESENT CASE, NEITHE R THE ASSESSMENT ORDER HAS NOT BEEN CANCELLED NOR ANY FRESH ASSESSMENT HAS BEEN DIRECTED TO BE MADE BY THE COMMISSIONER OF INCOME TAX UNDER SECTION 263. THIS BEING SO, THE ENTERTAINMENT OF THE APPEAL BY THE COMMISSION ER OF INCOME TAX (APPEALS) ITSELF IS ERRONEOUS AND WITHOUT JURISDICTION. BE THAT AS IT MAY, NO APPEAL AGAINST THE OR DER GIVING EFFECT TO THE ORDER PASSED BY THE COMMISSIONE R OF HARISH JHAMNANI ITA NO. 644/IND/2014 5 INCOME TAX UNDER SECTION 263 BY THE ASSESSING OFFIC ER IS MAINTAINABLE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) NOR BEFORE THE APPELLATE TRIBUNAL ALSO AS THIS APPEAL IS NOT AGAINST THE ORDER PASSED UNDER SECTION 26 3 BY THE COMMISSIONER OF INCOME TAX. IN THESE CIRCUMSTANCES, THE APPEAL FILED BY THE ASSESSEE STANDS DISMISSED BEING NOT MAINTAINABLE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMIS SED. PRONOUNCED IN OPEN COURT ON 5.9.2016 SD/- SD/- (N.S. SAINI) (D.T . GARASIA) ACCOUNTANTMEMBER JUDICIAL MEMBER 5.9.2016
