OTAML V. PUROHIT, MUMBAI V. INCOME TAX OFFICER WARD 14(2)(4), MUMBAI

MA 101/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6949 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.101/M/2017 (ARISING OUT OF ITA NO.7766/M/2014) ASSESSMENT YEAR: 2009-10 M/S. OTMAL V. PUROHIT, 401, SALASAR, JOTH BAGESHWARI PARK, BHAYANDER (WEST), MUMBAI 400 101 PAN: AQEPP 0999H VS. INCOME TAX OFFICER, WD-14(2)(4), MUMBAI (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI PRAKASH JHUNJHUNWALA, A.R. REVENUE BY : SHRI V. JUSTIN, D.R. DATE OF HEARING : 06.07.2018 DATE OF PRONOUNCEMENT : 23.07.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE HAS SOUGHT THE RECTIFICATION OF THE ORDER DATED 16.01.201 7 PASSED IN ITA NO.7766/M/2014. 2. THE LD. A.R. SUBMITTED BEFORE THE BENCH THAT WHILE PASSING THE ORDER, THE TRIBUNAL DID NOT DECIDE THE ISSUE OF ESTIMATION OF PROFIT BASED UPON THE SUBMISSIONS AND CONTENTIONS OF THE COUNSEL PUT BEFORE THE BENCH DU RING THE COURSE OF HEARING WHICH WERE INCORPORATED BY THE T RIBUNAL IN PARA 6 OF THE SAID ORDER ALONG WITH THE DECISION OF THE CO- ORDINATE BENCH IN THE CASE OF RAMESH KUMAR VS. ACIT IN ITA NO.3512 & 3513/M/2013 FOR A.Y. 2004-05 & 2005-06 DAT ED MA NO.101/M/2017 (ARISING OUT OF ITA NO.7766/M/2014) M/S. OTMAL V. PUROHIT 2 22.04.2015 WHEREIN THE NET COMMISSION HAS BEEN ESTIMA TED AT 0.10%. THE LD. COUNSEL SUBMITTED THAT SINCE THE ISSUE OF ESTIMATION OF INCOME REMAINED UNADJUDICATED AND MAT TER WAS SET ASIDE WITHOUT ANY DIRECTION, THE ORDER TO THAT EXTENT IS CONTAINED WITH APPARENT MISTAKE ON RECORD AND THERE FORE NEEDS TO BE RECTIFIED. 3. THE LD. D.R., ON THE OTHER HAND, OBJECTED TO THE ARGUMENTS OF THE LD. A.R. BY SUBMITTING THAT THE TRIB UNAL HAS PASSED AN ORDER SETTING ASIDE THE ISSUE TO THE FILE OF THE AO WITHOUT GIVING ANY DIRECTIONS AND PRAYED THAT THE M A FILED BY THE ASSESSEE SHOULD BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE OBSERVE FROM THE PERUSAL OF OUR TRIBUNAL ORDER THAT THE ARGUMENTS OF THE LD. COUNSEL OF THE ASSESSEE HAS BEEN INCORPORATED IN PA RA 6 OF THE SAID ORDER WHICH IS REPRODUCED BELOW: 6. THE ID. AR SUBMITTED BEFORE THE BENCH THAT THE LD.CIT(A) HAS ENHANCED THE ASSESSMENT BY ESTIMATING THE INCOME AT 1.5% OF THE TOTAL CASH CREDIT ENTRIES IN THE BOOK PASS BOOKS/STATEMENTS OF THE AS SESSEE AND HIS PROPRIETARY CONCERNS. THE ID. AR SUBMITTED THAT TOT AL CASH CREDIT ENTRIES AS CALCULATED BY THE AO AT RS. 1,82,65,69,168/- WAS NO T CORRECT AS THE AO ALSO INCLUDED THE VARIOUS CHEQUES/RTGS RETURNED UNPAID A ND INTER-BANK TRANSFERS IN THE VARIOUS BANK ACCOUNTS OF THE ASSESSEE AND HIS P ROPRIETARY CONCERNS WHICH WAS SUBSTANTIATED AND PROVED BY FILING THE BANK STA TEMENTS OF VARIOUS BANKS AND PRAYED THAT THE INCOME BE ESTIMATED BY TAKING G P RATE 0.25 ON THE TOTAL CASH CREDIT ENTRIES AFTER EXCLUDING CHEQUES/R TGS RETURNED UNPAID AND INTERBANK TRANSFERS IN THE BANK ACCOUNTS OF THE ASSESSEE. IN DEFENCE OF HIS ARGUMENTS , THE LD.AR REFERRED AND RELIED ON THE DECISION OF CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF RAMES H KUMAR JAM V/S ACIT I ITA NO.3512 AND 3513/MUM/2013 (AY-2004-05 AND 2005- 06) DATED 22.4.2015 WHEREIN THE NET COMMISSION INCOME HAS BEE N ESTIMATED AT 0.10%. MA NO.101/M/2017 (ARISING OUT OF ITA NO.7766/M/2014) M/S. OTMAL V. PUROHIT 3 5. WE OBSERVE THAT WHILE PASSING THE ORDER, THE TRIB UNAL HAS GIVEN DIRECTION TO EXCLUDE TRANSFER ENTRIES/RET URNED CHEQUES/INTER BANK TRANSFERS IN ASSESSEES BANK ACC OUNT WHEREAS THE ISSUE ON THE ASSESSMENT BY ESTIMATION O F INCOME ON THE REMAINING AMOUNT WAS INADVERTENTLY OMITTED. T HUS THERE IS A MISTAKE TO THIS EXTENT IN THE ORDER DATE D 16.01.2017. NOW WE DIRECT THE ASSESSEE TO EXCLUDE TH E RETURNED CHEQUES/RTGS/INTER BANK TRANSFERS IN ASSES SEE'S BANK ACCOUNT AND ASSESS THE INCOME BY WAY OF ESTIMA TING THE COMMISSION ON THE REMAINING AMOUNT AFTER APPLYING T HE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL I N THE CASE OF RAMESH KUMAR VS. ACIT IN ITA NO.3512 & 3513/M/2013 FO R A.Y. 2004-05 & 2005-06 DATED 22.04.2015. THE ORDER OF THE TRIBUNAL STANDS AMENDED AND MODIFIED TO THAT EXTEN T. 6. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 23.07.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: .07.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.