Sukhbir Singh, V. ITO, Ward-I,

MA 133/DEL/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3757 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-06-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 1995-1996
• Appeal Filed On: 17-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K CHAND
• Assessee Lawyers: R S SANGWA N; V B ARYA
• Keywords: Business income
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH FRIDAY ; NEW DELHI BEFORE SHRI C.L. SETHI, JM AND SHRI K.D. RANJAN, AM M.A. NO.133/DEL OF 2010 (IN I.T.A. NO.4993/DEL OF 2003) ASSESSMENT YEAR: 1995-96 SHRI SUKHBIR SINGH KATARIA, INCOME-TAX OFFICER , PROP. M/S AVINASH CERAMICS, VS WARD-1, GURGAON . DAULATABAD ROAD, GURGAON. APPLICANT RESPONDENT APPLICANT BY: S/SHRI V.B. ARYA & R.S. SANGWA N RESPONDENT BY: SHRI N.K. CHAND, SR. DR ORDER PER C.L. SETHI, JM THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FIL ED BY THE ASSESSEE IN REGARD TO THE ORDER DATED 20 TH JULY, 2006 PASSED BY THIS TRIBUNAL IN THE ABOVE REFERRED APPEAL PERTAINING TO THE ASSTT. YEAR 1995-96. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE H AS STATED THAT WHILE DECIDING THE APPEAL, THE TRIBUNAL HAS INADVERTENTLY FAILED TO ALLOW/GIVE BENEFIT OF SET OFF OF RS.3 LACS OUT OF THE NET PROF IT ESTIMATED BY THE AO. 3. THE FACTS GIVING RISE TO THIS MISCELLANEOUS APPL ICATION ARE, IN BRIEF, STATED AS UNDER:- 2 4. A SURVEY U/S 133A OF THE ACT WAS CONDUCTED AGAIN ST THE ASSESSEE, DURING THE COURSE OF WHICH, THE ASSESSEE SURRENDERE D THE SUM OF RS.3 LACS AS UNDISCLOSED INCOME OF BUSINESS CARRIED ON UNDER THE NAME AND STYLE M/S AVINASH CERAMICS. HOWEVER, THE ASSESSEE FILED HIS RETURN OF INCOME DECLARING TOTAL INCOME AT RS.54,137/- ON 31.10.95 W ITHOUT INCLUDING THEREIN THE AMOUNT OF RS.3 LACS, WHICH WAS SURRENDERED DURI NG THE COURSE OF SURVEY. THE AO INITIATED PROCEEDINGS U/S 147 OF THE ACT, AN D ISSUED NOTICE U/S 148 ON 16.11.1999. THEREAFTER, THE ASSESSMENT CAME TO BE COMPLETED U/S 143(3)/148 ON 28.3.2002, WHERE THE ASSESSEES TOTAL INCOME WAS DETERMINED AS UNDER: (I) NET PROFIT @ 10% OF TOTAL SALES MADE BY THE ASSESSEE OF RS.1,21,71,559/- RS.12,17,155/- (II) ADDITION ON ACCOUNT OF SURRENDER MADE AT AT THE TIME OF SURVEY U/S 133A RS. 3,00,000/- TOTAL INCOME RS.15,17,155/- OR RS.15,17.160/- 5. BEING AGGRIEVED, THE ASSESSEE PREFERRED AN APPEA L BEFORE THE LD. CIT(A). 6. BEFORE THE CIT(A), THE ASSESSEE HAD TAKEN A GROU ND CHALLENGING THE AOS ORDER IN ESTIMATING THE INCOME AT RS.12,17,155 /- AND IN MAKING ADDITION OF THE SUM OF RS.3 LACS. 3 7. THE ADDITION OF RS.3 LACS MADE BY THE AO WAS SUS TAINED BY THE LEARNED CIT(A). HOWEVER, THE ADDITION OF RS.12,17, 155/- BY APPLYING THE RATE OF NET PROFIT AT 10% TO TOTAL SALE HAS BEEN DE LETED BY THE CIT(A) BY HOLDING THAT THE ESTIMATION OF BUSINESS INCOME AT R S.12,17,155/- AS AGAINST THE NET PROFIT SHOWN AT RS.54,137/- MADE BY THE AO CANNOT BE SUSTAINED. 8. AGAINST THE ORDER OF CIT(A), THE DEPARTMENT FILE D AN APPEAL BEFORE THE TRIBUNAL TAKING A GROUND THAT LEARNED CIT(A) HA S ERRED IN DELETING THE ADDITION OF RS.12,17,155/-. 9. AFTER HEARING BOTH THE PARTIES, THE TRIBUNAL VID E ITS ORDER DATED 20 TH JULY, 2006 ALLOWED THE REVENUES APPEAL BY HOLDING THAT THE AO WAS JUSTIFIED TO ESTIMATE THE INCOME OF THE ASSESSEE BY APPLYING THE NET PROFIT RATE OF 10% TO THE DECLARED SALE. NOW, THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION SAYING THAT ADDITION OF RS.3 LACS MADE BY THE AO HAS NOT BEEN DELETED BY THE TRIBUNAL WHILE CONFIRMING THE ADDITI ON OF RS.12,17,155/-. 10. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY PE RUSED THE MATERIAL ON RECORD. 11. FROM THE FACTS OF THE CASE, IT IS AMPLY CLEAR T HAT THE CONCERNED APPEAL WAS FILED BY THE REVENUE AGAINST THE ORDER OF LEARN ED CIT(A) IN DELETING THE ADDITION OF RS.12,17,155/- AS AGAINST THE NET PROFI T SHOWN BY THE ASSESSEE AT RS.54,137/-. IN OTHER WORDS, THE SOLE GROUND RAISE D BY THE REVENUE IN THE 4 CONCERNED APPEAL RELATES TO THE CIT(A)S ORDER IN D ELETING THE ADDITION TO THE EXTENT OF RS.11,63,018/- I.E. RS.12,17,155/- MINUS RS.54,137/-. IT IS AN ADMITTED POSITION THAT NO APPEAL WAS FILED BY THE A SSESSEE AGAINST THE ORDER OF CIT(A) IN CONFIRMING THE ADDITION OF RS.3 LACS O N ACCOUNT OF UNDISCLOSED INCOME SURRENDERED BY THE ASSESSEE DURING THE COURS E OF SURVEY. THE ASSESSEE ALSO DID NOT FILE ANY CROSS OBJECTION IN R ELATION THERETO. THE ASSESSEE ALSO NEVER CONTENDED BEFORE THE TRIBUNAL T HAT IN CASE THE PROFIT IS ESTIMATED AT RS.12,17,155/-, AS DONE BY THE AO, NO SEPARATE ADDITION OF RS.3 LACS SHOULD HAVE BEEN MADE. IN OTHER WORDS, THE IS SUE WITH REGARD TO THE ADDITION OF RS.3 LACS SUSTAINED BY THE CIT(A) WAS N EITHER BEFORE THE TRIBUNAL NOR IT WAS ARGUED DURING THE COURSE OF HEA RING OF THE APPEAL. THE ASSESSEE HAS ALSO ADMITTED THIS FACT IN THE MISCELL ANEOUS APPLICATION, WHERE IT HAS BEEN STATED THAT THE ASSESSEE WAS NOT IN APP EAL AGAINST THE ADDITION OF RS.3 LACS SUSTAINED BY THE LD. CIT(A). IN THE MISC ELLANEOUS APPLICATION, THE ASSESSEE HAS ALSO ADMITTED THE FACT THAT THE DEPART MENT FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF CIT(A), AND THE T RIBUNAL VIDE ORDER DATED 26.7.2006 UPHELD THE ESTIMATED INCOME OF RS.12,17,1 55/-. IT IS, THUS, CLEAR THAT THE ADDITION OF RS.3 LACS WAS NOT A SUBJECT MA TTER OF APPEAL FILED BY THE REVENUE NOR THE SAME WAS RAISED BY THE ASSESSEE BY WAY OF FILING CROSS OBJECTION OR BY TAKING A PLEA UNDER RULE 27 OF THE INCOME-TAX RULES. SINCE 5 THE POINT NOW RAISED IN THE MISCELLANEOUS APPLICATI ON WAS NOT A SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL, WHEN THE MATT ER WAS CONSIDERED AND DECIDED BY THE TRIBUNAL, THE QUESTION OF COMMITTING ANY MISTAKE APPARENT FROM RECORD BY NOT ALLOWING OR GIVING THE BENEFIT O F SET OFF OF RS.3 LACS AGAINST THE NET PROFIT OF RS.12,17,155/- DID OR COU LD NOT ARISE AND THUS, THIS PRESENT MISCELLANEOUS APPLICATION IS MISCONCEIVED A ND NOT MAINTAINABLE. 12. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 13. THIS DECISION WAS PRONOUNCED IN THE OPEN COURT ON 4 TH JUNE, 2010. (K.D. RANJAN) (C.L. SETHI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 4 TH JUNE, 2010 VIJAY COPY TO: 1. APPLICANT. 2. RESPONDENT. 3. CIT 4. CIT(A) 5. DR ASSISTANT REGISTRAR