The ACIT, Circle-1, Rajahmundry, Rajahmundry V. M/s Venkata Raju Contractor, Rajahmundry

MA 15/VIZ/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4610 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-07-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 19-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T S N MURTHY
• Keywords: Rectification of order

Judgement Text

MP NO.15/VIZAG/2016 K. VENKATA RAJU (CONTRACTOR), RAJAHMUNDRY 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.P.NO.15/VIZAG/2016 (ARISING OUT OF ITA NO.370/VIZAG/2012) ( / ASSESSMENT YEAR: 2009-10) ACIT, CIRCLE - 1, RAJAHMUNDRY VS. K. VENKATA RAJU (CONTRACTOR) RAJAHMUNDRY [PAN: AABFK 4007A ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI T.S.N. MURTHY, DR / RESPONDENT BY : SHRI G.V.N. HARI, AR / DATE OF HEARING : 24.06.2016 / DATE OF PRONOUNCEMENT : 22.07.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION FILED BY THE REVENUE, REQUESTING RECTIFICATION OF ORDER PASSED BY THIS TRIBUNAL, IN ITA NO.370/VIZAG/2012 DATED 30.11.2015 FOR THE ASSESSMENT YEAR 2009-10 IS ADJUDICATED AS UNDER. MP NO.15/VIZAG/2016 K. VENKATA RAJU (CONTRACTOR), RAJAHMUNDRY 2 2. DURING THE COURSE OF HEARING, THE LD. D.R. SUBMI TTED THAT ON GOING THROUGH THE ORDER PASSED BY THE HONBLE BENCH, IT I S NOTICED THAT THERE IS A MISTAKE IN NON-CONSIDERATION OF GROUND NO.4 OF GROUNDS OF APPEAL RAISED BY THE REVENUE, CHALLENGING THE ORDER OF CIT (A), SCALED DOWN THE ESTIMATION OF NET PROFIT FROM 20% TO 15% ON SAND BU SINESS. THE D.R. FURTHER SUBMITTED THAT THE HONBLE ITAT, DID NOT AD JUDICATE THE ISSUE REGARDING ESTIMATION OF NET PROFIT IN RESPECT OF SA ND BUSINESS, WHICH WAS ESTIMATED BY THE A.O. @ 20% AND THE CIT(A) HAS SCAL ED DOWN TO 15% ON TOTAL TURNOVER. THE D.R. FURTHER SUBMITTED THAT THE HONBLE ITAT, ERRED IN NOT ADJUDICATING THE ISSUE OF ESTIMATION O F NET PROFIT FROM THE BUSINESS OF SAND SALES, EVEN THOUGH A SEPARATE GROU ND VIDE GROUND NO.4 ON THE ISSUE WAS RAISED BY THE DEPARTMENT. THEREFO RE, THE SAID MISTAKE CONSTITUTES A MISTAKE APPARENT FROM THE RECORD WHIC H NEEDS TO BE RECTIFIED U/S 254(2) OF THE ACT. 3. ON THE OTHER HAND, THE LD. A.R. FOR THE ASSESSEE FAIRLY ACCEPTED THAT THERE IS A MISTAKE IN THE TRIBUNAL ORDER, WHIC H NEEDS RECTIFICATION. 4. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. ON VERIFICATION OF THE ORDER PASSED BY THIS BENCH, IN ITA NO.370/VIZAG/2012, WE FIND THAT THE BENCH, BY OVERS IGHT DID NOT GIVEN MP NO.15/VIZAG/2016 K. VENKATA RAJU (CONTRACTOR), RAJAHMUNDRY 3 ANY FINDINGS ON GROUND NO.4 RAISED BY THE REVENUE, CHALLENGING THE LD. CIT(A) ORDER TOWARDS REDUCING ESTIMATION OF NET PRO FIT ON SAND BUSINESS FROM 20% TO 15%. THEREFORE, WE ARE OF THE OPINION THAT IT IS A MISTAKE APPARENT FROM THE RECORD WHICH NEEDS TO BE RECTIFIE D U/S 254(2) OF THE ACT. HENCE, BY EXERCISING POWERS VESTED WITH THE T RIBUNAL U/S 254(2) OF THE ACT AND ALSO BY RELIED UPON THE JUDGEMENT OF HO NBLE SUPREME COURT, IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD . VS. CIT (2007) 295 ITR 466, THE ORDER PASSED BY THIS TRIBUNAL, IN ITA NO.370/VIZAG/2012 HAS BEEN RECALLED, HEARD AND DISPOSED OFF AS UNDER. 5. THE BRIEF FACTS OF THE ISSUE IS THAT THE ASSESSE E IS INVOLVED IN THE BUSINESS OF TRADING IN SAND. DURING THE COURSE OF A SSESSMENT PROCEEDINGS, THE A.O. HAS REJECTED BOOKS OF ACCOUNT S AND ESTIMATED NET PROFIT OF 20% ON TOTAL TURNOVER FROM THE BUSINESS O F SAND SALES. ON FIRST APPEAL, THE CIT(A) HAS SCALED DOWN THE ESTIMATION O F NET PROFIT FROM 20% TO 15%. THE CIT(A) AFTER CONSIDERING THE RELEV ANT SUBMISSIONS OF THE ASSESSEE AND ALSO TAKEN INTO CONSIDERATION COMP ARABLE CASES IN THAT LINE OF BUSINESS HAS SCALED DOWN THE ESTIMATION OF NET PROFIT TO 15%. THE CIT(A) HAS RIGHTLY SCALED DOWN THE ESTIMATION O F NET PROFIT. WE DO NOT SEE ANY REASONS TO INTERFERE WITH THE ORDER PAS SED BY THE LD. MP NO.15/VIZAG/2016 K. VENKATA RAJU (CONTRACTOR), RAJAHMUNDRY 4 CIT(A). HENCE, WE INCLINED TO UPHOLD THE CIT(A) OR DER AND REJECT THE GROUND RAISED BY THE REVENUE. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS ALLOWED AND GROUND NO.4 OF ITA NO.370/VIZAG/2012 IS REJECTED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 ND JUL16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ! /VISAKHAPATNAM: % /DATED : 22.07.2016 VG/SPS )! *! /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT THE ACIT, CIRCLE-1, RAJAHMUNDRY 2. / THE RESPONDENT M/S. K. VENKATA RAJU, CONTRACTO R, VEMAGIRI, KADIAM MANDAL, RAJAHMUNDRY 3. + / THE CIT, RAJAHMUNDRY 4. + ( ) / THE CIT (A), VISAKHAPATNAM 5. ! . , . , ! / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , ! / ITAT, VISAKHAPATNAM