JITENDRA KUMAR AGARWAL, Jaipur V. ACIT, Jaipur

MA 16/JPR/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2331 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 10-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S L PODDAR
• Keywords: Peak credit

Judgement Text

MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) M.A. NOS. 16, 17 & 18/JP/2012 (ARISING OUT OF ITA NOS. 1158, 1159 & 1160/JP/2 01) ASSESSMENT YEARS : 2005-06, 2006-07 & 2008-09 PAN: AEDPA 0732 L SHRI JITENDRA KUMAR AGARWAL VS. THE ACIT P/O M/S. GARG JEWELLERS CIRCLE- 1 222, JOHRI BAZAR, JAIPUR JAIPUR (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.L. PODDAR DEPARTMENT BY: SHRI RAJESH OJHA DATE OF HEARING: 12-09-2014 DATE OF PRONOUNCEMENT: 19-09-2014 ORDER PER R.P. TOLANI, JM THESE ARE THREE ASSESSEE'S MISCELLANEOUS APPLICAT IONS FIELD U/S 254 (2) OF THE ACT AGAINST THE ORDER OF THE TRIBUNAL DA TED 30-12-2010 FOR THE ASSESSMENT YEARS 2005-06, 2006-07 & 2008-09 RAISING THE COMMON ISSUES WITH FOLLOWING CONTENTS. THE ABOVE-MENTIONED APPEAL HAS BEEN DECIDED BY THE HON'BLE BENCH VIDE THEIR ORDER DATED 30-12-2010 ALO NG WITH ITA NO. 1158/JP/2010 & 1160/JP/2010 & ALSO DEPARTMENTAL APPEAL IN MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 2 ITA NO. 639, 1329, 1330 & 1331/JP/2010 FOR A.Y. 200 4-05 TO 2007- 08. THERE ARE SOME MISTAKES IN THE ORDER WHICH ARE AS UNDER :- (I) THAT THE HON'BLE BENCH HAS DECIDED THE GROUND N O. 3 OF THE ASSESSEE'S APPEAL AGAINST THE SUSTAINING THE AD DITION OF RS. 80,90,000/-OUT OF TOTAL ADDITION OF RS. 4,32,78 ,5957- IN PARA NO.69 & 70 WHICH ARE AS UNDER - PARA NO. 69 THE ASSESSING OFFICER MADE ADDITION OF RS. 4,32,78,595/- ON ACCOUNT OF TRANSACTION IN LAND WHICH WERE FOUND RECORDED IN THE SEIZED MATERI AL. THE ASSESSING OFFICER HAS MADE TOTAL OF ALL THE ENT RIES OF OUTGOING AMOUNT FOR THE YEAR UNDER CONSIDERATION AND ADDED THE SAME AS UNDISCLOSED INVESTMENT IN LAND. T HE LEARNED CIT(A) BY ADOPTING PEAK THEORY REDUCED THE AMOUNT OF ADDITION AT RS. 80.90 LACS. PARA NO. 70 - WE HAVE ALREADY DISPOSED OFF THIS GROUND WHILE DISPOSING THE ISSUE FOR A. Y. 2005-06. WE HAV E DIRECTED TO APPLY N.P. RATE OF 10% ON THE TOTAL ADD ITION MADE BY THE ASSESSING OFFICER FOR THE YEAR UNDER CONSIDERATION. IN THE PARA NO. 70 THE HON'BLE BENCH HAS DIRECTED T O SUSTAIN THE ADDITION @10% ON ADDITION MADE BY THE ASSESSING OFF ICER. THE ASSESSING OFFICER HAS MADE ADDITION OF RS. 4,32,78, 595/-. THE LEARNED ASSESSING OFFICER HAS MADE THIS ADDITION BY WRONG CALCULATING THE FIGURES FOR THE YEAR. THE HON'BLE ITAT HAS MADE PART OF ITS ORDER TO THE ANNEXURE A-5/71 TO 5/76 RELATING TO PAGE NO. 370 TO 373 AND 375 TO 379 OF SEIZED MATERIAL RELATES TO INCOMING AND OUTGOING ON ACCOUNT OF LAND DEALING. THE TOTAL OF WHICH IS RS. 8,88,94,273/-. T HE YEAR WISE BREAKUP WAS ALSO SUBMITTED WHICH WAS AS UNDER :- MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 3 ASSESSMENT YEAR AMOUNT 2005-06 5500828.00 2006-07 14943803.00 2007-08 12185400.00 2008-09 56264242.00 TOTAL 88894273.00 BUT THE YEARWISE ADDITION SUSTAINED ON TURNOVER BY THE HON'BLE ITAT ARE AS UNDER:- ASSESSMENT YEAR AMOUNT 2005-06 5350000.00 2006-07 43278595.00 2007-08 12185400.00 2008-09 57827101.00 TOTAL 118641096.00 THEREFORE, THERE ARE MISTAKES IN ADDITION SUSTAIN I N ASSESSMENT YEAR 2005-06, 2006-07 AND 2008-09. THIS NEEDS TO BE RECTIFIED. 2.1 THE LD. COUNSEL FOR THE ASSESSEE CONTENDS THAT ITAT IN ITS ORDER HAS AGGREGATED THE TURNOVER AT RS. 8,88,94,273/- WHERE AS THE CUMULATIVE EFFECT OF THE ITAT ORDER LEADS TO AN IMPRESSION THAT THE T URNOVER AMOUNTS TO RS. 11,86,41,096/-. THE ITO WHILE GIVING THE AFFECT TO THE APPELLATE ORDER HAS DETERMINED THE HIGHER FIGURE. THEREFORE, THIS BEING THE MISTAKE APPARENT FROM RECORD NEEDS TO BE RECTIFIED. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PARA 69 AND 70 OF ITAT ORDER IN THIS B EHALF WHICH ARE AS UNDER:- MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 4 69. THE AO MADE ADDITION OF RS. 4,32,78,595/- ON ACCOUNT OF TRANSACTION IN LAND WHICH WERE FOUND RE CORDED IN THE SEIZED MATERIAL. THE AO HAS MADE TOTAL OF ALL T HE ENTRIES OF OUTGOING AMOUNT FOR THE YEAR UNDER CONSIDERATION AN D ADDED THE SAME AS UNDISCLOSED INVESTMENT IN LAND. THE LD. CIT (A) BY ADOPTING PEAK THEORY REDUCED THE AMOUNT OF ADDITION AT RS. 80.90 LACS. 70. WE HAVE ALREADY DISPOSED OFF THIS GROUND WHILE DISPOSING THE ISSUE FOR ASSESSMENT YEAR 2005-06. WE HAVE DIRECTED TO APPLY NET PROFIT RATE OF 10% ON THE TOT AL ADDITION MADE BY THE AO FOR THE YEAR UNDER CONSIDERATION. 2.3 THE LD. DR CONTENDS THAT THERE IS NO MERIT IN T HE MISCELLANEOUS APPLICATIONS INASMUCH AS THE TABLE REFERRED TO BY T HE ASSESSEE FINDS NO PLACE IN THE ITAT ORDER. THE TRIBUNAL HAS SIMPLY HELD THA T NET PROFIT RATE OF 10% SHOULD BE APPLIED ON THE TOTAL ADDITION MADE BY THE AO. THUS THERE IS NO MISTAKE IN THE ITAT ORDER. IF THERE IS ANY MISTAKE IN THE ORDER OF THE AO AS TO GIVING EFFECT TO APPELLATE ORDER, THE SAME CANNO T BE A REASON TO RECALL THE ITAT ORDER. THE ASSESSEE HAS REMEDY TO FILE THE APP EAL AGAINST THE ORDER GIVING EFFECT BY THE AO. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND MERIT IN THE CONTENTIO NS OF THE LD. DR . THE TABLES MENTIONED BY THE ASSESSEE IN THE MISCELLANEO US APPLICATION FINDS NO PLACED IN ITAT ORDER. THE DIRECTION OF THE ITAT TO THE AO IS SIMPLE. MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 5 THEREFORE, THERE IS NO MISTAKE AS CONTEMPLATED BY T HE ASSESSEE IN THE MISCELLANEOUS APPLICATIONS. THEREFORE, THE MISCELLA NEOUS APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. 3.0 IN THE RESULT, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19-09-2014 . SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 19 TH SEP 2014 *MISHRA COPY FORWARDED TO:- 1. SHRI JITENDRA KUMAR AGARWAL, JAIPUR 2. THE ACIT, CIRCLE- 1, JAIPUR , 3. THE LD. CIT 4. THE LD. CIT(A), 5..THE LD. DR 6.THE GUARD FILE (MA NO. 16, 17 &18/JP/2012) BY ORDER AR ITAT, JAIPUR MA 16/JP/2012 SHRI JITENDRA KUMAR AGARWAL VS. ACIT CIRCLE-1, JAIPUR 6