ITO, Jaipur V. SHARWAN KUMR AGARWAL, Jaipur

ITA 9/JPR/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 2101 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 03-01-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAILENDRA SHARMA DHK
• Keywords: Question of law
• Section: 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO ] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.09/JP/17 ( ARISING OUT OF ITA NO. 880/JP/11 ) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE DY. COMMISSIONER OF INCOME TAX, CIRCLE-7, JAIPUR CUKE VS. M/S J.K. JEWELLERS INTERNATIONAL, A-36, TAKTESHAHI RAOD, JLN MARG, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAEFJ9839Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE JKTLO DH VKSJ LS@ REVENUE BY : SHAILENDRA SHARMA LQUOKBZ DH RKJH[K@ DATE OF HEARING : 28/04/2017 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT: 01/05/2017. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO . 880/JP/2011 DATED 25.05.2015. IN ITS APPLICATION, THE REVENUE HAS S UBMITTED THAT THE TRIBUNAL HAS SET ASIDE THE MATTER TO THE FILE OF THE AO TO D ECIDE THE SAME IN CONSONANCE WITH THE HONBLE RAJASTHAN HIGH COURT JUDGEMENT IN CASE OF ANUJ KUMAR VARSHNEY AND OTHERS. 2. IT WAS SUBMITTED BY THE REVENUE THAT THE DECISION O F THE TRIBUNAL IN SETTING ASIDE THE ASSESSMENT IS NOT JUSTIFIABLE AS ANY MATTER CANNOT BE SET ASIDE FOR AFRESH ASSESSMENT SUBJECT TO AN UNCERTAIN FUTUR E EVENT AND ALSO FOR INDEFINITE PERIOD. THE SET- ASIDE ASSESSMENTS ARE R EQUIRED TO BE COMPLETED BY MA NO. 09/JP/17 DCIT, CIRCLE-7, VS. M/S J.K.JEWELLERS INTERNATIONA L, JAIPUR 2 THE AO WITHIN THE TIME PRESCRIBED IN SECTION 153(2 A) OF THE IT ACT, 1961 WHICH IS ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN W HICH THE ORDER OF THE ITAT IS RECEIVED BY THE CONCERNED COMMISSIONER. THIS LIMI TATION CANNOT BE EXTENDED BY THE HONBLE ITAT ITSELF FOR INDEFINITE AND UNCER TAIN PERIOD. AS NO LIMITATION HAS BEEN PRESCRIBED FOR THE DECISION OF THE HONBLE HIGH COURT, THEREFORE AN ASSESSMENT CANNOT BE KEPT IN ABEYANCE TILL SUCH ORD ER OF THE HONBLE HIGH COURT. SINCE THE MISTAKE IS APPARENT FROM THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR THE SAME MAY KINDLY BE RECTIFIED UNDE R SECTION 254(2) OF IT ACT, 1961 BY RECALLING THE APPEAL ORDER AND DECIDING THE SAME ON MERITS. 3. HERE IT WOULD BE RELEVANT TO REFER TO THE FINDIN GS OF THE CO-ORDINATE BENCH, WHICH IS THE SUBJECT MATTER OF PRESENT APPLI CATION, WHICH IS AS UNDER: 3. WE ARE NOT INCLINED TO GRANT ADJOURNMENT AND IN ASMUCH AS WHETHER THE QUESTION OF LAW HAS BEEN ACCEPTED, STAGE OF HEA RING AND LIKELIHOOD OF DECISION HAS NOT BEEN EXPLAINED TO US BESIDES THE A SSESSING OFFICER WILL TAKE A VIEW IN THIS MATTER IN CONSONANCE WITH THE H ONBLE RAJASTHAN HIGH COURTS JUDGMENT. IT WILL AVOID REPEATED FIXATION A ND UNCESSARY PENDENCY BEFORE THE ITAT INASMUCH AS THE HONBLE RAJASHTHAN HIGH COURT JUDGMENT WILL BE BINDING ON ALL CONCERNS. IN VIEW T HEREOF, WE REJECT THE ADJOURNMENT APPLICATION. AFTER HEARING THE ID DR, P ERUSING THE MATERIAL AVAILABLE ON THE RECORD, WE SET ASIDE THE MATTER BA CK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME IN CONSONANCE WITH THE HONBLE RAJASHTHAN HIGH COURT JUDGMENT IN THE ABOVE BATCH A S AND WHEN THE SAME IS DELIVERED. 4. THE LD DR TOOK US THROUGH THE RELEVANT PROVISION S OF SECTION 153(2A) OF THE ACT WHICH STATES AS UNDER: (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-S ECTIONS(1), (1A), (1B) AND (2) IN RELATION TO THE ASSESSMENT YEAR COMMENCING O N THE 1ST DAY OF APRIL, 1971 AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER O F FRESH ASSESSMENT IN PURSUANCE OF AN ORDER U/S 250 OR 254 OR SECTION 263 OR SECTION 264, SETTING MA NO. 09/JP/17 DCIT, CIRCLE-7, VS. M/S J.K.JEWELLERS INTERNATIONA L, JAIPUR 3 ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 250 OR SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMM ISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSI ONER OR, AS THE CASE MAY BE, THE ORDER U/S 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL C OMMISSIONER OR COMMISSIONER. 5. FROM THE PERUSAL OF MATERIAL AVAILABLE ON RECORD , IT IS NOTED THAT THE ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS RELATE D TO UNVERIFIED PURCHASES AMOUNTING TO RS 1,19,58,445. THE COORDINATE BENCH VIDE ITS ORDER DATED 25.05.2015 HAS SET ASIDE THE MATTER TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HI GH COURT IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO(SUPRA) IS DELIVERED . FROM THE PERUSAL OF RECORDS, IT IS ALSO NOTED THAT THE PROVISIONS OF SE CTION 153(2A) OF THE ACT WERE NOT BROUGHT TO THE NOTICE OF THE COORDINATE BENCH. WE ACCORDINGLY RECALL THE ORDER PASSED BY THE COORD INATE BENCH DATED 25.05.2015 AND DIRECT THE REGISTRY TO FIX THE MATTE R FOR FRESH HEARING IN DUE COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 01/05/2017. SD/- SD/- ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 01/ 05/2017 MA NO. 09/JP/17 DCIT, CIRCLE-7, VS. M/S J.K.JEWELLERS INTERNATIONA L, JAIPUR 4 SANTOSH* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- DY. COMMISSIONER OF INCOME TAX, CIRC LE-7,JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S J.K. JEWELLERS INTERNATIONAL, A -36, TAKTESHAHI RAOD, JLN MARG, JAIPUR 3. VK;DJ VK;QDR@ CIT I, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-I, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 09/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR