PREMIER DRUG HOUSE, V. ACIT 14(3),

MA 118/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3491 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2015
• Court: TRIBUNAL
• Assessee Lawyers: REEPAL G TRALSHAWALA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, AM & SHRI SANJAY GARG , J M M A NO. 118 / MUM/20 1 5 (ARISING OUT OF ITA NO . 5781 /MUM/20 1 2 ) ( ASSESSMENT YEAR : 200 8 - 0 9 ) M/S PREMIER DRUG HOUSE, A - 102, SHREE VALLABH APT. CHS, POISAR GYMKHANA ROAD, NEAR KAMALA VIHAR SPORTS CLUB, KANDIVLI (WEST),MUMBAI - 400 067 VS. ACIT, 14(3) MUMBAI ./ ./ PAN/GIR NO. : A AA FP 2486 M ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI REEPAL G. TRALSHAWALA REVENUE BY : SHRI MANOJ KUMAR DATE OF HEARING : 21 - 08 - 2015 DATE OF PRONOUNCEMENT : 21 - 08 - 2015 O R D E R PER R.C.SHARMA, AM : . . TH IS MISCELLANEOUS APPLICATION AROSE OUT OF ITA NO. 5781 /MUM/20 1 2 , VIDE ORDER DATED 20 - 2 - 2015 . 2. THROUGH THIS MISCELLANEOUS APPLICATION IT WAS CONTENDED BY LD. AR THAT ADDITION MADE BY AO BY REFERRIN G DIFFERENCE IN PURCHASER AND SALES IN THE MONTH OF MARCH, 2008 WAS DULY CONSIDERED BY THE CIT(A) AFTER CALLING A REMAND REPORT. THEREFORE, NOT CONSIDERING THE RELEVANT OBSERVATION OF THE CIT(A) VIS - - VIS REMAND REPORT OF THE AO AMOUNTS TO MISTAKE APPARENT ON THE RECORD WHILE CONCLUDING THE TRADING. 3. ON THE OTHER HAND, IT WAS CONTENDED BY THE LD. DR THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. MA NO. 118 /20 1 5 2 4. WE HAVE CONSIDERED RIVAL CONTENTIONS, CAREFULLY GONE THROUGH THE MISCELLANEOUS APPLICATION AS WELL A S ORDER OF THE TRIBUNAL AND ALSO ORDER S PASSED BY THE LOWER AUTHORITIES AND FOUND THAT THE TRIBUNAL HAS ASKED THE AO TO APPLY THE GP RATE OF 9% IN PLACE OF GP RATE OF 7.5% SHOWN BY THE ASSESSEE ON THE PLEA THAT THE CIT(A) HAS NOT CONTROVERTED THE OBSERVATI ON MADE BY THE AO WITH REGARD TO THE DIFFERENCE IN THE PURCHASE AND SALES OF THE ASSESSEE FOR THE MONTH OF MARCH, 2008. FROM THE ORDER OF CIT(A) WE FOUND THAT THE CIT(A) HAS CALLED FOR A REMAND REPORT FROM THE AO ON THIS GROUND WHEREIN THE AO HAS SUBMITTED THAT SALES AND PURCHASES SHOWN BY THE ASSESSEE IN THE BOOKS OF ACCOUNT WAS CORRECT, RELEVANT REMAND REPORT HAS ALSO BEEN REPRODUCED BY CIT(A) IN HIS ORDER. HOWEVER, NOT CONSIDERING THE REMAND REPORT AND THE OBSERVATION OF THE AO, AMOUNTS TO A MISTAKE APPA RENT ON THE RECORD. ACCORDINGLY, OUR OBS ERVATION IN PARA NO.8 OF THE ORDER DATED 20 - 2 - 2015, PASSED IN ITA NO.5781/MUM/2012 IS MODIFIED AND THE SAME BE READ AS U NDER : - 8. FROM THE RECORD, WE FOUND THAT IN THE REMAND REPORT CALLED FOR BY THE CIT(A), THE AO HAS STATED THAT THE SALES AND PURCHASES SHOWN BY THE ASSESSEE IN THE BOOKS OF ACCOUNT WAS CORRECT . UNDER THESE CIRCUMSTANCES, WE FIND FORCE IN THE CONTENTION OF THE LD. AR THAT THE AO WAS NOT JUSTIFIED IN APPLYING THE ARBITRARY GP RATE OF 17.80% . T HEREFORE, WE RESTORE THE MATTER BACK TO THE FILE OF THE AO FOR DETERMINING THE CORRECT GP RATE, CONSIDERING THE RELEVANT FACTS AS DISCUSSED ABOVE . WE DIRECT ACCORDINGLY MA NO. 118 /20 1 5 3 5 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED IN PART FOR STATI STICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21/08 /2015 SD/ - ( SANJAY GARG ) SD/ - ( R.C.SHARMA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 21/08 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CI T 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//