The Assisatant Commissioenr of Income-tax, Srinagar V. M/s. Pardeep Singh Wazir, Baramulla.

MA 119/ASR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1370 (ITAT-AMRITSAR)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.119(ASR)/2013 (ARISING OUT OF I.T.A. NO.379(ASR)/2012) ASSESSMENT YEAR:2008-09 PAN :AAIFP4025E ASSTT. COMMR. OF INCOME-TAX, VS. M/S. PRADEEP SINGH WAZIR, CIRCLE-3, SRINGAR. BABA RESHI ROAD, KANLI BAGH, BARAMULLA. (APPELLANT) (RESPONDENT) AND C.O. NO.32(ASR)/2012 (ARISING OUT OF I.T.A. NO.379(ASR)/2012) ASSESSMENT YEAR:2008-09 M/S. PRADEEP SINGH WAZIR, VS. ASSTT. COMMR. OF INCO ME-TAX, BARAMULLA. CIRCLE-3, SRINAGAR. (APPELLANT) (RESPONDENT) DEPARTMENT BY:SH.MAHAVIR SINGH, DR ASSESSEE BY:NONE DATE OF HEARING: 17/01/2014 DATE OF PRONOUNCEMENT:30/01/2014 ORDER PER BENCH ; MA NO.119(ASR)/2013 2 THIS MISCELLANEOUS APPLICATION OF THE REVENUE ARIS E FROM THE ORDER OF THE TRIBUNAL DATED 29.11.2012 PASSED IN ITA NO.3 79(ASR)/2012 AND C.O. NO.32(ASR)2012 FOR THE ASSESSMENT YEAR 2008-09. THE MISC. APPLICATION FILED BY THE ASSESSEE, FOR THE SAKE OF CONVENIENCE IS REPRODUCED AS UNDER: IN THIS CONNECTION, IT IS SUBMITTED THAT THE PRESE NT APPEAL IS FILED AGAINST THE ORDER OF HONBLE ITAT, AMRITSAR IN ITA NO. 379(ASR)/2012 AND C.O. NO.32(ASR)/2012 DATED 29.11. 2012 ON THE GROUND MENTIONED BELOW: THAT THE HONBLE ITAT, AMRITSAR BENCH HAS DELETED T HAT NET PROFIT RATE OF 5% APPLIED ON TRANSPORT RECEIPT BY THE LD. CIT(A), JAMMU. THE LD. CIT(A) HAS DIRECTED TO APPLY NET PROFIT RATE OF 5% RELYING UPON HIS OWN JUDGMENT IN THE ASSESSEES OWN CASE FOR THE A.Y 2005-06. THE DECISION OF THE LD. CIT(A) ON THE ISSUE OF NET PROF IT RATE OF 5% HAS BEEN ACCEPTED BY THE DEPARTMENT. THEREFORE, THE ORD ER OF THE A.O. ON THE ISSUE OF NET PROFIT RATE MERGED WITH THE ORDER OF LD. CIT(A), JAMMU. THE HONBLE ITAT HAS ERRED IN NOT APPRECIATI NG THE FACT THAT THE ORDER OF LD. CIT(A), JAMMU ON THIS ISSUE OF NET PROFIT RATE OF 5% ON TRANSPORT RECEIPT. FURTHER, THE ASSESSEE HAS FILED C.O.NO.32(ASR)/2012 ARISING OUT OF ITA NO.379(ASR)/2012. THE DEPARTMENT HAS RAISED THE GROUND OF APPEAL ON THE ISSUE OF VIOLATIONS OF SECTION 40(A)( IA) OF THE ACT WHEREAS THE ASSESSEE HAS RAISED THE ISSUE OF APPLYI NG 5% NET PRFIT RATE ON TRANSPORT RECEIPTS. THE ASSESSEE SHOULD HAVE RAI SED THE ISSUE OF VIOLATION OF 40(A)(IA) OF THE ACT IN THE CROSS OBJE CTION WHICH HAS NOT BEEN RAISED. THE GROUNDS OF APPEAL ON THE ISSUE OF APPLYING 5% ON THE TRANSPORT RECEIPTS SHOULD HAVE BEEN RAISED BY THE A SSESSEE BY FILING AN APPEAL AND NOT IN THE CROSS OBJECTION. IN THE VIEW OF ABOVE THE ORDER PASSED BY THE COURT IS NOT IN ACCORDANCE WITH LAW. HENCE, IT IS REQUESTED THAT THE MISC. APPLICATION O F THE DEPARTMENT FOR THE RECALL OF THE ORDER OF THE ITAT AMRITSAR IN ITA NO.379(ASR)/2012 AND C.O. NO.32(ASR)2012 DATED 29.1 1.2012 MAY MA NO.119(ASR)/2013 3 KINDLY BE ADMITTED ON THE ABOVE MENTIONED GROUND. I N THIS REGARD, KINDLY FIND ENCLOSED HEREWITH THE FOLLOWING DOCUMEN T: 1. ATTESTED COPIES OF AOS ORDER U/S 143(3) OF THE ACT . 2. ATTESTED COPIES OF THE ORDER OF LD. CIT(A). 3. CERTIFICATES INTIMATING THE DATE OF COMMUNICATION O F APPELLATE. 4. CERTIFICATE UNDER RULE 15 OF I.T.RULES, 1962. 5. ORDER OF HONBLE ITAT AGAINST WHICH FILING OF MISC. APPLICATION IS PREFERRED. KINDLY ENTERTAIN THE APPEAL DOCUMENTS AND OBLIGED. 2. NONE ATTENDED INSPITE OF VALID SERVICE OF NOTICE ON BEHALF OF THE ASSESSEE AND THEREFORE, WE ARE PROCEEDING TO DECIDE THE MISC. APPLICATION EX-PARTE, AFTER HEARING THE LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 3. THE LD. DR, MR. MAHAVIR SINGH, READ THE MISC. AP PLICATION AND ARGUED THAT THERE IS MISTAKE APPARENT FROM RECORD A ND PRAYED TO RECALL THE ORDER OF THE TRIBUNAL DATED 29.11.2012. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS REGARDS THE FIRST MISTAKE, THE REVENUE HAS POINT ED OUT THAT THE ITAT IN ITS ORDER DATED 29.11.2012 (SUPRA) HAS COMMITTED AN ERR OR IN NOT APPRECIATING THE FACTS THAT THE ORDER OF THE LD. CIT(A), JAMMU O N THE ISSUE OF NET PROFIT RATE OF 5% ON TRANSPORT RECEIPT HAS BEEN ACCEPTED B Y THE DEPARTMENT. THE MISTAKE POINTED OUT IN THE MISC. APPLICATION, IN FA CT, IS NOT A MISTAKE MA NO.119(ASR)/2013 4 APPARENT FROM RECORD AND THEREFORE, THE FIRST MISTA KE AS AGITATED BY THE REVENUE IS REJECTED. 4.1. AS REGARDS THE 2 ND MISTAKE, THE MAIN OBJECTION OF THE REVENUE IS THA T THE ASSESSEE SHOULD HAVE FILED AN APPEAL AND NOT CR OSS OBJECTION AND THE POINTS RAISED IN THE CROSS OBJECTION, IF AT ALL FI LED SHOULD HAVE BEEN WITH RESPECT TO THE VIOLATION OF SECTION 40(A)(IA) OF TH E ACT. IN THIS REGARD, AS PER PROVISIONS OF SECTION 253(4), THE AO OR THE ASSESS EE ON THE RECEIPT OF NOTICES THAT AN APPEAL AGAINST THE ORDER OF THE LD . CIT(A) OR .. HAS BEEN PREFERRED UNDER SECTION 253(1), 253(2) OR 253A BY T HE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY NOT HAVE APPEALED AGAI NST SUCH ORDER OR ANY PART THEREOF; WITHIN THIRTY DAYS OF THE RECEIPT OF THE NOTICE, FILE A MEMORANDUM OF CROSS-OBJECTIONS, VERIFIED IN THE PR ESCRIBED MANNER AGAINST ANY PART OF THE ORDER OF THE AO/CIT(A).. AND SUCH MEMORANDUM SHALL BE DISPOSED OF BY THE APPELLATE TRIBUNAL AS IF IT WERE ON APPEAL PRESENTED WITHIN THE TIME SPECIFIED IN SUB-SECTION (3) OR (3A ) OF SECTION 253. AS PER READING OF THE SAID PROVISIONS, THE OTHER PARTY CA N FILE AGAINST ANY APPELLATE ORDER WHICH SHALL BE DISPOSED OFF BY THE TRIBUNAL, AS IT WERE AN APPEAL. THEREFORE, THERE CANNOT BE ANY BAR ON TAKING ANY GR OUND AGAINST ANY APPELLATE ORDER OF THE CIT(A), WHICH HAS VALIDLY BE EN TAKEN IN THE C.O. AND THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD FROM OUR ORDER IN ITA MA NO.119(ASR)/2013 5 NO.379(ASR)/2012 AND C.O. NO.32(ASR)/2012 DATED 29. 11.2012. THEREFORE, THE SAME MISTAKE AS POINTED OUT BY THE REVENUE IS R EJECTED. ACCORDINGLY, THE MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED . 5. IN THE RESULT, THE M.A.NO.119(ASR)/2013 FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH JANUARY, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30TH JANUARY, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. PRADEEP SINGH WAZIR, BARAMULLA, K ASHMIR. 2. THE ACIT, CIR.3, SRINAGAR. 3. THE CIT(A), JAMMU 4. THE CIT, JAMMU 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR