Shri M. Abdul Zahid., Hospet. V. The Assistant Commissioner of Income Tax, Central Circle-2, Belagavi., Belagavi

MA 06/PAN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6560 (ITAT-PANAJI)
• Duration Of Justice: 9 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y V RAVIRAJ
• Assessee Lawyers: SHRINIVAS NAYAK
• Keywords: Rectification of order
• Section: 37(1); 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI RAM LAL NEGI , J M M A NO S . 05 TO 0 9 / PAN . / 201 8 (ARISING OUT OF ITA (SS) NO S . 07 TO 1 1 /PAN.2017) (ASSESSMENT YEAR S : 20 05 - 06 TO 200 9 - 10 ) SHRI M. ABDUL ZAHID, HOSPET, KARNATAKA VS. ASST. CIT, CENTRAL CIRCLE - 2, BELAGAVI, KARNATAKA PAN/GIR NO. AAEPZ 4485 C ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI SHRINIVAS NAYAK RESPONDENT BY : SHRI Y. V. RAVIRAJ DATE OF HEARING : 16.11. 201 8 DATE OF PRONOUNCEMENT : 17.01 .2019 O R D E R PER SHAMIM YAHYA, A. M.: BY WAY OF TH ESE MISCELLANEOUS APPLICATION S , THE ASSESSEE SEEKS RECTIFICATION OF MISTAKE IN THE COMMON ORDER OF THIS TRIBUNAL IN ITA (SS) NOS. 07 TO 1 1 /PAN/2017 AND OTHERS VIDE ORDER DATED 22.12.2017. 2. THE SUBMISSION OF THE ASSESSEE ARE AS UNDER: WE NOTED IN THE ORDER PASSED BY YOUR HONOUR THAT TWO MISTAKES HAVE CREPT INTO THE ORDER WHICH ARE APPARENT ON RECORD. THEREFORE, THIS APPLICATION HAS BEEN MADE U/S . 254(2] OF THE INCOME TAX ACT TO RECTIFY THESE TWO MISTAKES. A] THE FIRST MISTAKE RELATES TO NOT MENTIONING AY 2009 - 10 UNDER PARA 7 LAST LINE. IN THIS REGARD, IT IS SUBMITTED THAT THE TRIBUNAL HAS TAKEN THE APPEAL OF THE ASSESSEE FOR AY 2005 - 06 TO 2011 - 12 IN TWO GROUPS. THE FIRST GROUP OF APPEAL RELATE S TO THE AY 2005 - 06 TO 2009 - 10 & SECOND GROUP OF APPEAL RELATES TO AY 2010 - 11 & 2011 - 12 WHICH IS APPARENT FROM PARA 1 OF TRIBUNAL ORDER. THE TRIBUNAL WHILE DECIDING APPEAL FOR AY 2005 - 06 TO 2009 - 10 UNDER PARA 2 TO 7 OF ITS ORDER, UNDER PARA 7 IN THE SECOND LAST LINE OMITTED TO MENTION AY 2009 - 10 WHILE HOLDING AS UNDER: 'IN THE RESULT, IN FIRST GROUP OF APPEALS, APPEAL FILED BY ASSESSEE FOR AY 2005 - 06, 2006 - 07, 2007 - 08 & 2008 - 09 ARE PARTLY ALLOWED, RESULTANTLY, THE APPEAL FILED BY REVENUE FOR AY 2005 - 06, 2008 - 09 & 2009 - 10 ARE DISMISSED.' YOUR HONOUR WILL SEE THAT IN THE APPEAL FILED BY THE ASSESSEE, AY 2009 - 10 HAS BEEN MISSED OUT. THUS, THIS IS THE MISTAKE APPARENT ON RECORD. WE THEREFORE, REQUEST YOUR HONOUR THAT LAST FOUR LINES OF PARA 7 OF THE ORDER BE RECTIFIED SO AS TO INCLUDE AY 2009 - 10. 2 MA NOS.05 TO 09/PAN./2018 B) THE SECOND MISTAKE APPARENT IN THE ORDER OF THIS TRIBUNAL RELATES TO THE ADDITION/ DISALLOWANCE IN RESPECT OF PURCHASES MADE FROM THE UNREGISTERED DEALERS. THE FACTS IN THIS REGARD ARE THAT THE ASSESSEE HAS FILED A PPEALS IN THE AFORESAID CASE FOR AY 2005 - 06 TO 2011 - 12 WHILE THE REVENUE HAS FILED APPEALS FOR AY 2005 - 06, 2008 - 09 TO 2011 - 12. THE ASSESSEE HAS SHOWN INCOME IN EACH OF THE ASSESSMENT YEARS AS REPRODUCED IN THE ORDER OF THIS TRIBUNAL OF EVEN DATE UNDER PARA 4PG 6. THE AO NOTED DURING THE COURSE OF THE AY 2005 - 06 TO 2010 - 11 THAT THE ASSESSEE HAS MADE PURCHASES FROM UNREGISTERED DEALER FOR IRON ORE & DISALLOWED ALL THE PURCHASES MADE FROM THE UNREGISTERED DEALER IN EACH OF THE AY AS THE ASSESSEE COULD NOT PROD UCE THE SUPPLIERS. WHEN MATTER WENT BEFORE CIT(A), CIT(A) SUSTAINED THE ADDITION ON THE BASIS OF THE PROFIT TO BE ESTIMATED @ 6% OF TOTAL TURNOVER IN EACH OF THE ASSESSMENT YEARS AFTER CONSIDERING THE PROFIT ALREADY DECLARED BY THE ASSESSEE. THE ASSESSEE A S WELL AS THE REVENUE HAS COME IN - APPEAL BEFORE THIS TRIBUNAL & THE ASSESSEE HAS CONTENDED THAT REASONABLE PERCENTAGE OF THE PURCHASES FROM UNREGISTERED DEALER AFTER CONSIDERING THEPERCENTAGE OF PROFIT DECLARED BY THE ASSESSEE IN THE COMPUTATION OF INCOME BE DISALLOWED AND THE DISALLOWANCE SHOULD NOT BE ON THE BASIS OF PROFIT ESTIMATED ON TOTAL TURNOVER DURING THE YEAR. THE TRIBUNAL IN ITS ORDER UNDER PARA 5 PG 6 COMMITTED THE MISTAKE WHILE MENTIONING SUBMISSION OF THE COUNSEL IN THE FOLLOWING WORDS: 'THE I D AR FOR THE ASSESSEE PRAYED THAT A REASONABLE PERCENTAGE OF PURCHASES FROM THE UNREGISTERED DEALERS MAY BE RESTRICTED AND NOT ON THE BASIS OF THE TOTAL TURNOVER DURING THE YEAR. ON THE OTHER HAND, THE ID DRFOR THE REVENUE PRAYED FOR DISALLOWANCE OF ENTIRE PURCHASES FROM URD. JT WAS ARGUED THAT THE PURCHASES FROM THE UNREGISTERED DEALERS ARE ILLEGAL. THE ILLEGAL PURCHASES AND THE TRANSPORTATION OF IRON ORE IS PUNISHABLE UNDER THE HEAL LAW. AND THE AO RIGHTLY DISALLOWED IT UNDER SECTION 37(1) OF THE ACT THE LD DR PRAYED FOR SUSTAINING THE ENTIRE PURCHASES MADE FROM THE UNREGISTERED DEALERS.' THE LD AR ALSO STATED THAT IN THE CASE OF MANOJKUMAR JAIN V DCIT (SUPRA) PANAJI BENCH OF THIS TRIBUNAL ESTIMATED PROFIT FROM IRON ORE BUSINESS @ 4%. THE MENTIONING OF INC ORRECT SUBMISSION OF THE ASSESSEE AFFECTED THE ADDITION SUSTAINED BY THE TRIBUNAL IN EACH OF THE ASSESSMENT YEARS. THE TRIBUNAL EVEN THOUGH TOOK THE VIEW THAT REASONABLE PERCENTAGE OF PROFIT OF THE PURCHASES FROM UNREGISTERED DEALER BE DISALLOWED IN EACH O F THE ASSESSMENT YEARS BUT IGNORED THE FACT THAT THE INCOME ALREADY DECLARED BY THE ASSESSEE SHOULD BE INCLUDED IN THE SAID 4%. THE RELEVANT FINDINGS OF THE TRIBUNAL AT PARA 7 ARE REPRODUCED AS UNDER: 'CONSIDERING THE FACT OF THE PRESENT CASE AND THE OTHER ASSESSMENT YEAR UNDER CONSIDERATION, WE ARE OF THE VIEW THAT DISALLOWANCE OF REASONABLE PERCENTAGE OF PROFIT FROM UNRECORDED PURCHASE INVOLVED IN ALL YEAR WOULD MEET THE END OF JUSTICE. CONSIDERING THE FACT OF PRESENT CASE, WE ESTIMATE THE PROFIT OF THE A SSESSEE @4% ON THE PURCHASES MADE FROM THE UNREGISTERED DEALERS. THUS, RESTRICT THE ADDITION ACCORDINGLY. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY TO RESTRICT THE ADDITION @4% OF THE PROFIT FROM THE IRON ORE PURCHASES FROM THE UNREGISTERED DEALERS.' S INCE THE SAID MISTAKE IS APPARENT ON RECORD, WE THEREFORE REQUEST YOUR HONOUR TO RECTIFY THE SAID MISTAKE AND DIRECT THE AO TO RESTRICT THE ADDITION @4% OF THE PROFIT FROM IRON ORE PURCHASES FROM UNREGISTERED DEALER AFTER CONSIDERING THE PERCENTAGE OF PROF IT ALREADY SHOWN BY THE ASSESSEE IN THIS REGARD. WE THEREFORE REQUEST YOUR HONOUR TO RECTIFY BOTH THE MISTAKES APPARENT IN THE COMMON ORDER OF THIS TRIBUNAL DT 22/12/2017. 3 MA NOS.05 TO 09/PAN./2018 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. THE MISTAKE POINTED OUT IN PARA A ABOVE NEEDS TO BE RECTIFIED. ACCORDINGLY, WE MODIFY PARA 7 AS UNDER: 'IN THE RESULT, IN FIRST GROUP OF APPEALS, APPEAL FILED BY ASSESSEE FOR AY 2005 - 06, 2006 - 07, 2007 - 08 , 2008 - 09 & 2009 - 10 ARE PARTLY ALLOWED, R ESULTANTLY, THE APPEAL FILED BY REVENUE FOR AY 2005 - 06, 2008 - 09 & 2009 - 10 ARE DISMISSED.' 4. AS REGARDS THE MISTAKE POINTED OUT IN PARAGRAPH B ABOVE, WE ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE ITAT. THE I TAT HAD DIRECTED THAT A REASONABLE PERCENTAGE OF PROFIT FROM THESE PURCHASES SHOULD BE DISALLOWED. THE ITAT ESTIMATED THE PROFIT OF THE ASSESSEE AT THE RATE OF 4% OF THE PURCHASES MADE FROM THE UNREGISTERED DEALERS. FROM THE ABOVE, IT IS EVIDENT THAT THE TRIBUNAL HAD DIRECTED THAT 4% PROFIT THE ASSESSEE IS ESTIMATED TO HAVE MADE ON THE UNREGISTERED PURCHASES. THE A.O. HAS ACCORDINGLY BEEN DIRECTED TO RESTRICT THE ADDIT ION TO THIS EXTENT, I.E., 4% PROFIT. HENCE, RESTRICTING THE PROFIT TO THIS EXTENT ADMITTEDLY INVOLVES REDUCTION OF THE GROSS PROFIT ALREADY DECLARED BY THE ASSESSEE. HENCE , IN OUR CONSIDERED OPINION, WHAT THE ASSESSEE IS SEEKING IS ALREADY ORDERED BY THE T RIBUNAL. HENCE, IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT FROM RECORD, LIABLE FOR CORRECTION IN THE AFORESAID ORDER OF THE TRIBUNAL. 5. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATION IS DISPOSED OFF AS ABOVE. O RDER PRONOUNCED BY L ISTING THE RESULT ON THE NOTICE BOARD OF THE BENCH UNDER RULE 34(4) OF THE APPELLATE TRIBUNAL RULES, 1963. SD/ - RAM LAL NEGI JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER DATED : 17.01.2019 4 MA NOS.05 TO 09/PAN./2018 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, PANJI CITY CONCERNED; (5) THE DR, ITAT, PANJI ; (6) GUARD FILE . BY ORDER ROSHANI , SR. PS ( SR. P.S. / P.S. ) ITAT