M/s Jay Minerals., Hospet. V. The Assistant Commissioner of Income Tax, Central Circle-2, Belagavi., Belagavi

MA 10/PAN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6556 (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: 2008-2009
• 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; Rule of consistency
• Section: 12; 10; 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 . 10 , 11 & 12 / PAN . / 201 8 (ARISING OUT OF ITA (SS) NO S . 05, 06 & 19 /PAN.2017) (ASSESSMENT YEAR S : 20 0 8 - 0 9 TO 20 10 - 11 ) M/S. JAY MINERALS HOSPET, KARNATAKA VS. ASST. CIT, CENTRAL CIRCLE - 2, BELAGAVI, KARNATAKA PAN/GIR NO. AAFFJ 9363 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. 05, 06 & 19 /PAN/2017 AND OTHERS VIDE ORDER DATED 22.12.2017. 2. THE SUBMISSION OF THE ASSESSEE ARE AS UNDER: A) THE 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 APPEALS IN THE AFORESAID CASE FOR AY 2008 - 09 TO 20 09 - 10 WHILE THE REVENUE HAS FILED APPEALS FOR AY 2008 - 09 TO 2010 - 11. THE ASSESSEE HAS SHOWN INCOME IN EACH OF THE ASSESSMENT YEARS AND FOR REFERENCE THE AY 2008 - 09 DETAILS AS REPRODUCED IN THE ORDER OF THIS TRIBUNAL OF EVEN DATE UNDER PARA 2PG2. THE AO NOT ED DURING THE COURSE OF THE AY 2008 - 09 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 PRODUCE 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 ASSESEE. THE ASSESSEE AS WELL AS THE REVE NUE HAS COME IN APPEAL BEFORE THIS TRIBUNAL & THE ASSESSEE HAS CONTENDED THAT REASONABLE PERCENTAGE OF THE PURCHASES FROM UNREGISTERED DEALER AFTER CONSIDERING THE PERCENTAGE 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 PG4 2 MA NOS.10, 11 & 12/PAN./2018 COMMITTED THE MISTAKE WHILE MENTIONING SUBMISSION OF THE COUNSEL IN THE FOLLOWING WORDS: 'THE L D AR FOR THE ASSES SEE PRAYED FOR A REASONABLE DISALLOWANCE ON ACCOUNT OF PURCHASES FROM URD, ON THE OTHER HAND, THE LD DRFOR THE REVENUE SUPPORTED THE ORDER OFAO. THE ID DRFOR THE REVENUE PRAYED FOR DISALLOWANCE OF ENTIRE PURCHASES FROM URD. THE ID DRFOR THE REVENUE PRAYED FOR DISALLOWANCE OF ENTIRE PURCHASES FROM URD. IT WAS ARGUED THAT THE PURCHASES FROM THE UNREGISTERED DEALERS ARE ILLEGAL THE ILLEGAL PURCHASES AND THE TRANSPORTATION OF IRON ORE IS PUNISHABLE UNDER THE LOCAL LAW. AND THE AO RIGHTLY DISALLOWED IT UNDER SEC TION 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 INCORRECT - 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 DEAL ER BE DISALLOWED IN EACH OF 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 FOR AY 2008 - 09 & 2009 - 10 AT PARA 8 PAGE 9 ARE REPRODUCED AS UNDE R: 'CONSIDERING THE FACT OF THE PRESENT CASE WE ESTIMATE THE FURTHER PROFIT OF ASSESSEE @ 6% ON THE PURCHASES FROM UNREGISTERED DEALERS. THUS, THE ADDITION RESTRICTED BY IDCIT(A) @6% IS MODIFIED TO THE EXTENT THAT A FURTHER PROFIT @4% FROM PURCHASES FROM U NREGISTERED DEALERS BE ALSO ADDED TO THE INCOME OF THE ASSESSEE IN ALL ASSESSMENT YEARS. NO OTHER CONTRARY DECISION WAS BROUGHT TO OUR NOTICE. THE ASSESSING OFFICER IS DIRECTED ACCORDINGLY TO RESTRICT THE ADDITION @4% OF THE COST OF PURCHASES OF IRON ORE FROM THE UNREGISTERED DEALERS DURING THE YEAR' THE RELEVANT FINDINGS OF THE TRIBUNAL FOR AY 2010 - 11 AT PARA 10 PAGE 10 ARE REPRODUCED AS UNDER: 'CONSIDERING THE FACT THAT WE HAVE ALREADY SUSTAINED THE ADDITIONS @4% OF PROFIT FROM PURCHASES FROM URD FOR TW O EARLIER ASSESSMENT YEARS I.E AY 2008 - 09 AND 2009 - 10. THUS KEEPING IN VIEW, THE PRINCIPLE OF CONSISTENCY, THE DISALLOWANCE FOR THIS YEAR IS ALSO RESTRICTED TO 4% OF PROFIT FROM PURCHASES FROM URD DURING THE YEAR UNDER CONSIDERATION ' SINCE THE SAID MISTA KE 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 PROFIT ALREADY SHOWN BY THE ASSESSEE IN THIS REGARD. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. AS REGARDS THE MISTAKE POINTED OUT IN THE ORDER OF THIS TRIBUNAL , WE ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE ITAT. THE ITAT HAD DIRECTED THAT A 3 MA NOS.10, 11 & 12/PAN./2018 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 RES TRICT THE ADDITION 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 O RDERED BY THE TRIBUNAL. HENCE, IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT FROM RECORD, LIABLE FOR CORRECTION IN THE AFORESAID ORDER OF THE TRIBUNAL. 4 . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISPOSED OFF AS ABOVE. O RDER PRONOUNCED BY LISTING 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 : 1 7 . 0 1 . 2 0 1 9 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