Prasant Kumar Gupta, Kanpur V. Income Tax Officer-2(3), Kanpur

MA 110/LKW/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3323 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-06-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-04-2015
• Assessment Year: 2006-2007
• Appeal Filed On: 17-11-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HARISH GIDWANI
• Keywords: Gross profit estimation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI. A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.110/LKW/2014 [ARISING OUT OF ITA NO.468/LKW/2010] ASSESSMENT YEAR:2006-07 SHRI. PRASANT KUMAR GUPTA PROP. M/S ANMOL SALT TRADERS 58, INDUSTRIAL ESTATE, KANPUR V. INCOME TAX OFFICER 2(3) KANPUR PAN:ADUPG3932A (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI. RAKESH GARG, ADVOCATE RESPONDENT BY: SHRI. HARISH GIDWANI, D.R. DATE OF HEARING: 24 04 2015 DATE OF PRONOUNCEMENT: 05 06 2015 O R D E R PER SUNIL KUMAR YADAV: THIS MISCELLANEOUS APPLICATION IS PREFERRED ON BEHALF OF THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 10.9.2014 IN I.T.A. NO. 468/LKW/2010 WITH THE SUBMISSION THAT AN ERROR IS CREPT IN THE ORDER OF THE TRIBUNAL AND THEREFORE NECESSARY RECTIFICATION IS CALLED FOR. 2. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT IN THE ASSESSEES APPEAL A SPECIFIC GROUND WAS TAKEN BY THE ASSESSEE THAT WHEN ADDITION WAS MADE BY REJECTING THE BOOKS OF ACCOUNT AND APPLYING THE GROSS PROFIT RATE, THEN THE OTHER ADDITION OF RS.7,12,625/- FOR UNDERVALUATION OF STOCK NEED NOT BE MADE OR VICE-VERSA. IN SUPPORT OF THIS PROPOSITION, THE ASSESSEE HAS PLACED RELIANCE UPON VARIOUS JUDGMENTS DURING THE COURSE OF HEARING OF THE APPEAL, BUT THE TRIBUNAL HAS CONFIRMED CERTAIN ADDITIONS BESIDE ESTIMATION OF THE GROSS PROFIT RATE. THEREFORE, THE :- 2 -: ORDER OF THE TRIBUNAL IS IN CONTRAVENTION OF VARIOUS JUDICIAL PRONOUNCEMENTS AND NECESSARY RECTIFICATION IS CALLED FOR. 3. THE LD. D.R. HAS CONTENDED THAT THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE ASPECT RAISED DURING THE COURSE OF HEARING OF THE APPEAL, THEREFORE, THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. 4. HAVING CAREFULLY EXAMINED THE MISCELLANEOUS APPLICATION VIS--VIS THE ORDER OF THE TRIBUNAL DATED 10.9.2014, WE FIND THAT THE TRIBUNAL HAS DISPOSED OF THE REVENUES APPEAL AS WELL AS THE ASSESSEES APPEAL VIDE ITS CONSOLIDATED ORDER DATED 10.9.2014. AFTER REJECTING THE BOOKS OF ACCOUNT, THE ASSESSING OFFICER HAS REVALUED THE CLOSING STOCK BESIDES ESTIMATING THE GROSS PROFIT RATE. THE TRIBUNAL HAS ADJUDICATED GROUNDS NO.1 TO 4 RELATING TO REJECTION OF THE BOOKS OF ACCOUNT AND ESTIMATION OF GROSS PROFIT RATE AND VALUATION OF CLOSING STOCK ALONG WITH GROUND NO.1 IN THE REVENUES APPEAL RELATING TO LOW GROSS PROFIT RATE TOGETHER AND WHILE ADJUDICATING THE SAME, THE TRIBUNAL HAS NOTED IN PARA 10 OF ITS ORDER THAT THE ASSESSEE HAS FURNISHED DIFFERENT STATEMENTS BEFORE THE ASSESSING OFFICER AND THE LD. CIT(A) AND THERE WAS SUBSTANTIAL DISCREPANCIES IN THE QUANTITY OF DIFFERENT NAMAK AND THE LD. CIT(A) DID NOT MAKE ANY EFFORT TO OBTAIN THE REASONS FOR THE DISCREPANCIES. THE LD. CIT(A) HIMSELF HAS WORKED OUT THE VALUATION OF CLOSING STOCK WITHOUT AFFORDING AN OPPORTUNITY TO THE ASSESSING OFFICER TO MAKE HIS COMMENTS WITH REGARD TO THE NEW WORKING FURNISHED BY THE ASSESSEE. HAVING NOTICED THAT THE LD. CIT(A) HAS NOT PROPERLY ADJUDICATED THE ISSUE, THE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO HIS FILE WITH A DIRECTION TO RE-ADJUDICATE THE ISSUE AFRESH AFTER OBTAINING COMMENTS FROM THE ASSESSING OFFICER WITH REGARD TO THE NEW WORKING OF CLOSING STOCK FURNISHED BY THE ASSESSEE. SINCE THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT ASPECT WHILE ADJUDICATING THE ISSUE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL. :- 3 -: 5. IT IS ALSO A SETTLED POSITION OF LAW THAT ONCE THE BOOKS OF ACCOUNT ARE REJECTED, THE ASSESSING OFFICER IS AT LIBERTY EITHER TO ADJUDICATE THE ISSUES INDEPENDENTLY OR TO ESTIMATE THE GROSS PROFIT RATE. THE TRIBUNAL WAS NOT SATISFIED WITH THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY SET ASIDE HIS ORDER AND RESTORED THE ISSUE TO HIS FILE FOR RE-ADJUDICATION. THE TRIBUNAL HAS NOT CONFIRMED THE GROSS PROFIT ADDITION EITHER MADE BY THE ASSESSING OFFICER OR BY THE LD. CIT(A). THEREFORE, THE CONTENTION ON BEHALF OF THE ASSESSEE, THAT NO FURTHER ADDITION CAN BE MADE AFTER ESTIMATING THE GROSS PROFIT ON REJECTION OF THE BOOKS OF ACCOUNT, IS NOT SUSTAINABLE IN THE EYES OF LAW. SINCE WE DO NOT FIND ANY ERROR APPARENT IN THE ORDER OF THE TRIBUNAL, WE REJECT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 6. MOREOVER, THE SCOPE OF RECTIFICATION UNDER SECTION 254(2) OF THE ACT IS VERY LIMITED AS HAS BEEN HELD THROUGH VARIOUS JUDICIAL PRONOUNCEMENTS. ONLY ERROR APPARENT IN THE ORDER OF THE TRIBUNAL CAN BE RECTIFIED AND UNDER THE GARB OF SECTION 254(2), THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER. HAVING READ THE CONTENTS OF THE MISCELLANEOUS APPLICATION, WE ARE OF THE VIEW THAT THE ASSESSEE IS TRYING TO GET THE ORDER OF THE TRIBUNAL REVIEWED UNDER SECTION 254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE UNDER THE LAW. 7. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTIONED PAGE. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5 TH JUNE, 2015 JJ:0505 :- 4 -: COPY FORWARDED TO: 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR