SWASTIK UDYOG, Jaipur V. ITO, TONK

MA 112/JPR/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 5381 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 24-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROSHANTA MEENA
• Keywords: Rejection of books of accounts

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 FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 112/JP/2017 (ARISING OUT OF ITA NO. 74/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2009-10 M/S SWASTIK UDYOG F-72, 73, INDUSTRIAL AREA, NEWAI DISTT. TONK CUKE VS. THE ITO WARD-TONK TONK LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAJFS8181K VIHYKFKHZ@ APPEL LANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT ROSHANTA MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 24/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 05/10/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINAT E BENCH IN ITA NO. 74/JP/2017 DATED 03/04/2017. 2. DURING THE COURSE OF HEARING, THE LD. AR SUBMITT ED THAT THE AO HAS LEVIED PENALTY ON ESTIMATED TRADING ADDITION AF TER REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT. IT WAS SUBMITTE D THAT DURING THE COURSE OF HEARING, DETAIL WRITTEN SUBMISSIONS WERE FILED AND ALSO DECISIONS OF THE JURISDICTIONAL HIGH COURT WERE CIT ED ON THE PROPOSITION M.A. NO. 112/JP/2017 M/S SWASTIK UDYOG, TONK VS. ITO, TONK 2 THAT THERE CANNOT BE ANY LEVY OF PENALTY ON ESTIMAT ED ADDITION MADE BY THE AO AS A RESULT OF REJECTION OF BOOKS OF ACCOUNT . IN THIS REGARD, OUR REFERENCE WAS DRAWN TO THE WRITTEN SUBMISSIONS FILE D BEFORE THE CO- ORDINATE BENCH ON 03.03.2017 WHERE AT PARA 3.2, THE ASSESSEE HAS CONTENDED THAT NO PENALTY ON MERE ESTIMATION CAN BE LEVIED AND IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF THE SHIV LAL TAK V/S CIT 251 ITR 373 (RAJ.) AND CIT VS. MAHENDRA SINGH KHEDL A 252 CTR 0453(2012) BESIDES OTHER DECISIONS. 3. IT WAS ACCORDINGLY SUBMITTED BY THE LD AR THAT T HE WRITTEN SUBMISSIONS AS WELL AS THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT HAVE ESCAPED THE ATTENTION OF THE CO-ORDINATE BENCH AND THEREFORE, THERE IS A MISTAKE WHICH IS APPARENT FRO M THE RECORD AND IT WAS ACCORDINGLY PRAYED THAT THE ORDER PASSED BY THE CO-ORDINATE BENCH MAY KINDLY BE RECALLED FOR HEARING THE MATTER AFRES H. 4. THE LD. DR IS HEARD WHO HAS OPPOSED THE MISCELLA NEOUS APPLICATION SO FILED BY THE ASSESSEE. 5. HAVING HEARD BOTH THE PARTIES AND PURSUING MATER IAL AVAILABLE ON THE RECORD INCLUDING THE DECISION PASSED BY THE CO- ORDINATE BENCH, IT IS NOTED THAT AT PARA 5.4 OF ITS ORDER, THE CO-ORDINAT E BENCH HAS TAKEN NOTE OF THE WRITTEN SUBMISSIONS FILED BY THE LD. AR . THEREFORE, AS FAR AS THE FILING OF THE WRITTEN SUBMISSIONS IS CONCERNED, THE SAME IS AVAILABLE ON THE RECORD AND HAS BEEN TAKEN NOTE OF BY THE COO RDINATE BENCH. THEREAFTER, THE CO-ORDINATE BENCH HAS GIVEN ITS FIN DING IN PARA 5.6 OF ITS ORDER WHEREIN IT HAS CONFIRMED THE LEVY OF PENALTY BY THE AO. HOWEVER, WE FIND THAT THERE IS NO DISCUSSION REGARDING THE A PPLICABILITY OR M.A. NO. 112/JP/2017 M/S SWASTIK UDYOG, TONK VS. ITO, TONK 3 OTHERWISE OF VARIOUS JURISDICTIONAL HIGH COURT DECI SIONS SO CITED BY THE LD. AR IN HIS WRITTEN SUBMISSIONS. IN VIEW OF THE S AME, WE ARE OF THE VIEW THAT THE NON-CONSIDERATION OF THE DECISIONS OF THE JURISDICTIONAL HIGH COURT CONSTITUTES A MISTAKE APPARENT FROM THE RECORD AND IN VIEW OF THE SAME, WE HEREBY RECALL THE ORDER PASSED BY T HE CO-ORDINATE BENCH DATED 03/04/2017. THE REGISTRY IS DIRECTED TO FIX THE MATTER FOR HEARING IN DUE COURSE. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED B Y THE ASSESSEE IS DISPOSED OFF IN LIGHT OF ABOVE DIRECTIONS. PRONOUNCED IN THE OPEN COURT ON 05/10/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/10/2018. * GANESH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S SWASTIK UDYOG, TONK 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, TONK 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 112/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR