ACIT - 22(1), MUMBAI V. JOHN GALT INTERNATIONAL, MUMBAI

ITA 6472/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 9682 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2012-2013
• Appeal Filed On: 04-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARJU GARODIA
• Assessee Lawyers: R S KHANDELWAL
• Keywords: Rejection of books of accounts; Period of limitation; Time period of passing order; Condonation of delay
• Section: 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH, MUMBAI , , , BEFORE SHRI RAJENDRA, AM AND SHRI RAM LAL NEGI, JM ./ ITA NO. 6473 / MUM/ 201 6 ( / ASSESSMENT YEAR: 2011 - 12 ) THE ACIT - 22(1), ROOM NO. 322, 3 RD FLOOR, INCOME TAX OFFICE, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012 VS. M/S JOHN GALT INTERNATIONAL, A - 1, MAYA BUILDING, PLOT NO. 533, 17 TH ROA D, KHAR (W), MUMBAI - 400052 ./ ./ PAN/GIR NO. : AACFJ 7761 M ( / APPELLANT ) .. ( / RESPONDENT ) & ./ ITA NO. 64 72 / MUM/ 201 6 ( / ASSESSMENT YEAR: 2012 - 13 ) THE ACIT - 22(1), 322, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 VS. M/S JOHN GALT INTERNATIONAL, A - 1, MAYA BUILDING, PLOT NO. 533, 17 TH ROAD, KHAR (W), MUMBAI - 400052 ./ ./ PA N/GIR NO. : AACFJ 7761 M ( / APPELLANT ) .. ( / RESPONDENT ) /REVENUE BY : MS. ARJU GARODIA (DR) /ASSESSEE BY : SHRI R.S. KHANDELWAL (AR ) / DATE OF HEARING : 03 /08 /2017 / DATE OF PRONOUNCEMENT : 08/ 09 /2017 / O R D E R PER RAM LAL NEGI, JM THESE APPEALS HAVE BEEN PREFERRED BY THE REVENUE AGA INST ORDER S DATED 19/08/2016 PASSED BY THE LD. CIT (A) - 34 , MUMBAI PERTAI NING TO THE ASSESSMENT YEAR S 2011 - 12 & 2012 - 13 RESPECTIVELY , WHEREBY THE LD. CIT (A) HAS 2 ITA NO S . 6472 & 6473/MUM/2016 ASSESSMENT YEAR S : 2011 - 12 & 2012 - 2013 PARTLY ALLOWED THE APPEAL S FILED BY THE ASSESSEE AGAINST ASSESSMENT ORDER S PASSED U /S 143 (3 ) O F THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) . 6473/MUM/2016 ( ASSESSMENT YEAR: 2011 - 12 ) 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FIRM ENGAGED IN THE BUSINESS OF FABRICATION OF ENGINEERING GOODS LIKE C RANES, G IRDERS, MACHINERY AND DOING VARIOUS JOBS FOR MINISTRY OF DEFENCE , FILED ITS RETURN OF INCOME FOR THE A.Y. 2011 - 12 DECLARING THE TOTAL INCOME OF RS. 1,47,80, 350/ - . DURING ASSESSMENT PROCEEDINGS, THE AO INTER ALIA NOTICE D DISCREPANCIES IN BOOKS OF ACCOUNTS OF THE ASSESSEE. ACCORDINGLY, THE A O REJECTED THE BOOKS OF ACCOUNT AND ESTIMATED THE GP RATIO FOR THE YEAR UNDER CONSIDERATION AT 15% OF THE TOTAL TURNOVER AND MADE ADDITION OF RS. 77,94,863/ - TO THE INCOME OF THE ASSESSEE. IN APPEAL, THE LD. CIT (A) DELETED THE ADDITION HOLDING THAT THERE IS NO JUSTIFICATION EITHER IN THE REJECTION OF BOOKS OF ACCOUNTS OR ESTIMATION OF GP. AGGRIEVED BY THE SAID ORDER, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 3. THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND OF APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT (A): - 1. ON THE FACTS CIRCUMSTANCES OF THE CASE AND IN - LAW, THE LEARNED CIT (APPEAL) ERRED IN HOLDING THAT THE ASSESSING OFFICER WRONGLY REJECTED THE BOOKS OF ACCOUNT AND FURTHER IN DELETING THE ADDITION OF RS. 77,94,863/ - FOR A.Y. 20 11 - 12 TOWARDS PURCHASES WITHOUT APPRECIATING THAT THE ASSESSEE WAS UNABLE TO PRODUCE EVIDENCE IN SUPPORT OF THE PURCHASES. 2. THE APPELLANT, PRAYS THAT THE ORDER OF THE CIT (A) ON THE ABOVE GROUND WE SET ASIDE AND THAT OF THE AO BE RESTORED. 4. THESE APP EAL S WERE HEARD ON 03/08/2017. WE NOTICE D THAT THERE IS A DELAY OF 17 DAYS IN FILING OF THIS APPEAL. THE REGISTRY HAS SPECIFICALLY POINTED OUT THAT THE APPEAL IS TIME BARRED BY 17 DAYS AND NO APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED IN THIS CAS E. 3 ITA NO S . 6472 & 6473/MUM/2016 ASSESSMENT YEAR S : 2011 - 12 & 2012 - 2013 5. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET POINTED OUT THAT THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE BEING BARRED BY LAW OF LIMITATION. WE ALSO NOTICE THAT THE REVENUE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY IN FI LING OF THE PRESENT APPEAL. 6. SUB - SECTION 5 OF SECTION 253 OF THE INCOME TAX ACT PROVIDES THAT THE TRIBUNAL MAY ADMIT APPEAL OR PERMIT FILING OF MEMORANDUM OF CROSS - OBJECTION OF RESPONDENT AFTER EXPIRY OF RELEVANT PERIOD OF LIMITATION REFERRED TO IN SU B - SECTION 3 AND 4 SECTION 253, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING THE APPEAL WITHIN THAT PERIOD. IN THE PRESENT CASE, SINCE THE REVENUE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY, THE TRIBUNAL HAS NO JURISDICT ION TO DECIDE THE ISSUE AS TO WHETHER THE REVENUE HAD SUFFICIENT CAUSE, WHICH PREVENTED IT FROM FILING THE INSTANT APPEAL WITHIN LIMITATION PERIOD. HENCE, THE PRESENT APPEAL IS NOT MAINTAINABLE. WE, THEREFORE, DISMISS THE APPEAL OF THE REVENUE IN LIM INE BE ING BARRED BY LIMITATION. ITA NO. 6472 / MUM/2016 (ASSESSMENT YEAR: 2012 - 13 ) THE FACTS OF THE CASE AND THE ISSUE INVOLVED IN THE PRESENT APPEAL IS IDENTICAL TO THE FACTS OF THE CASE AND ISSUE INVOLVED IN REVENUES APPEAL IN ASSESSEES CASE FOR THE A.Y. 2 011 - 12 , DISCUSSED ABOVE , EXCEPT THE AMOUNT OF ADDITION MADE BY THE AO. HENCE, WE DO NOT CONSIDER IT NECESSARY TO AGAIN REPRODUCE THE SAID FACTS. 2 . THE REVENUE HAS RAISED THE FOLLOWING EFFECTIVE GROUND OF APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE L D. CIT (A): - 4 ITA NO S . 6472 & 6473/MUM/2016 ASSESSMENT YEAR S : 2011 - 12 & 2012 - 2013 1. ON THE FACTS CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (APPEAL) ERRED IN HOLDING THAT THE ASSESSING OFFICER WRONGLY REJECTED THE BOOKS OF ACCOUNT AND FURTHER IN DELETING THE ADDITION OF RS. 66,63,920/ - FOR A.Y. 2012 - 13 WHERE TH E AUDITOR HIMSELF HAS POINTED THE DISCREPANCIES IN TAX AUDIT REPORT FOR WHICH NO EXPLANATION/REASONING WAS GIVEN. 2. THE APPELLANT, PRAYS THAT THE ORDER OF THE CIT (A) ON THE ABOVE GROUND WE SET ASIDE AND THAT OF THE AO BE RESTORED. 3. SINCE, WE HAVE DISMISSED THE APPEAL OF THE REVENUE PERTAINING TO THE ASSESSMENT YEAR 2010 - 11 BEING BARRED BY LAW OF LIMITATION, WE ALSO DISMISS THIS APPEAL FOR THE SAME REASONS AS THERE IS A DELAY OF 17 DAYS IN FILING THE PRESENT APPEAL AND THE REVENUE HAS NOT FILED ANY APPLICATION FOR CONDONATION OF DELAY. IN THE RESULT, APPEAL S FILED BY THE REVENUE FOR ASSESSMENT YEAR S 2011 - 12 & 2012 - 13 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH . SEP T , 2017 . SD/ - SD/ - ( RAJENDRA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 8/ 9 / 2017 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP ELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / 5 ITA NO S . 6472 & 6473/MUM/2016 ASSESSMENT YEAR S : 2011 - 12 & 2012 - 2013 DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MU MBAI