BIHARI LAL HOLA RAM, Jaipur V. ITO, Jaipur

MA 16/JPR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5590 (ITAT-JAIPUR)
• Duration Of Justice: 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 03-02-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NEENA JAIF JCIT DHK

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 16/JP/2017 ARISING OUT OF ITA NO. 117/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2006-07. M/S BIHARI LAL HOLA RAM, 75, GOPAL JI KA RASTA, JOHARI BAZAAR, JAIPUR. CUKE VS. THE ITO, WARD - 1(1), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAEFB 3499 A VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C.PARWAL (C.A) JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JAIF (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07.04.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 17 /04/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE SEEKING RECALLING OF THE TRIBUNALS ORDER DATED 22/12/2016. 2. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE APPLICATION. THE LD. COUNSEL SUBMITTED THAT, WHILE DECIDING THE APPEAL, THE HONBLE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO RESTRICT THE PENALTY TO THE EXTENT OF ADDITION SUSTAINED QUA DIFFERENCE IN STOCK I.E., RS . 2,42,338/-. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO FINDING IS GIVEN ON THE MERIT OF THE LEVY OF THE PENALTY. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVES OPPOSED THE SUBMISSIONS AND SUBMITTED THAT, THERE IS NO MISTAKE APPARENT FROM THE RECORD. THE HONBLE TRIBUNAL HAS TAKEN NOTE OF THE SUBMISSION OF THE PARTIES AND HAS DULY APPRECIATED THE FACT. UNDER THESE 2 M.A. NO. 16/JP/2017 M/S BIHARI LAL HOLA RAM, JAIPUR. FACTS, THE ASSESSEE IS TRYING TO SEEK, UNDER THE GA RB OF RECTIFICATION REVIEW OF THE ORDER DATED 22/12/2016 WHICH IS NOT PERMISSIBLE UND ER THE LAW. 3. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. THE HONBLE TRIBUNAL IN ITA NO. 117/JP/2016 IN PARA 4.2 HAS DECIDED THE ISSUE BY OBSERVING AS UNDER:- 4.2 WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE AO HAD INITIATED PENAL TY PROCEEDINGS AS PER PARA 10.3 OF THE ASSESSMENT ORDER IN RESPECT OF THE DIFF ERENCE IN STOCK. HOWEVER, IN THE ASSESSMENT ORDER IT IS OBSERVED BY THE AO TH AT THE PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT ARE BEING INITIA TED SEPARATELY FOR CONCEALMENT AS DISCUSSED IN PARA 5 & 6 OF THE ORDER . PARA 5 & 6 OF THE ASSESSMENT ORDER READ AS UNDER- 5. THE SUBMISSION OF THE ASSESSEE AS ABOVE WAS CON SIDERED AND THE SAME HAS BEEN DEALT WITH IN THE FORGOING PARAS. 6. THE ASSESSEE FURNISHED G.P. RATE CHART VIDE LET TER FILED ON 21/11/2007 WHICH IS REPRODUCED AS UNDER:- DETAILS OF G.P. RATES A.Y TURNOVER GP GP RATE(%) 2003 - 04 56,71,300 10,40,949 18.35 2004 - 05 63,13,051 11,64,193 18.44 2005 - 06 81,02,590 15,3,444 18.68 REGARDING DECLINE IN GP RATE THE ASSESSEE SUBMITTED VIDE SAME LETTER THAT THE G.P. WAS BETTER COMPARED TO THE PRECEDING YEAR. FROM THE ABOVE PARAS, IT CANNOT BE INFERRED THAT TH E AO HAD INITIATED PENALTY PROCEEDINGS, HENCE THE BASIS OF INITIATION OF PROCE EDINGS IS ABSENT IN THE ASSESSMENT ORDER. HOWEVER, IN PARA 10.3, THE AO HA S OBSERVED AS UNDER:- 10.3. IN VIEW OF THE ABOVE STATED FACTS THE CLAIM OF PURCHASES MADE PRIOR TO DATE OF SURVEY BUT NO RECORDED UPTO THE DATE OF SURVEY IS NOT ACCEPTED AND THE CLAIM OF ADDITIONAL PURCHASES OF RS. 14,55, 282/- IS NOT ALLOWED. THE EXCESS STOCK FOUND DURING SURVEY IS REWORKED AT RS. 1,58,38,634/- AGAINST WHICH THE ASSESSEE HAS OFFERED TO TAX A UM OF RS. 1 ,35,61,270/- IN THE RETURN OF INCOME. THE DIFFERENCE OF RS. 22,77,364/ - IS ADDED TO THE INCOME OF THE ASSESSEE. THE CLAIM OF EXCESS STOCK TO BE C ONSIDERED AT RS. 1,22,34,684/- AS PER SUBMISSION MADE VIDE LETTER DA TED 3 M.A. NO. 16/JP/2017 M/S BIHARI LAL HOLA RAM, JAIPUR. 11.04.2008/26.12.2008 IS THEREFORE, REJECTED. PENA LTY PROCEEDINGS U/S 271(1)(C) OF THE ACT IS INITIATED FOR CONCEALMENT O F INCOME. THEREFORE, IT CAN BE CONSTRUED THAT THE PENALTY WAS INITIATED IN RESPECT OF THE ADDITION MADE ON ACCOUNT OF EXCESS STOCK OF RS. 22, 77,364/-. IT IS NOT DISPUTED THAT IN QUANTUM, THIS ADDITION OF RS. 22,7 7,364/- WAS REDUCED TO RS. 2,42,338/-. THEREFORE, WE FIND MERIT INTO THE CONTE NTION OF THE LD. COUNSEL FOR THE ASSESSEE. , WE DIRECT THE AO TO RESTRICT THE P ENALTY TO THE EXTENT OF THE ADDITION SUSTAINED QUA DIFFERENCE IN STOCK I.E. 2,4 2,338/-. THIS GROUND OF THE ASSESSEES APPEAL IS PARTLY ALLOWED AS DISCUSSED HE REIN ABOVE. FROM THE ABOVE FINDING, IT IS EVIDENT THAT THE FACT S HAVE BEEN DULY APPRECIATED AND THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH NEEDS RECTIFICATION. ACCORDINGLY, WE DISMISSED THE APPLICATION FILED BY THE ASSESSEE. 4. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISM ISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 17.04.2017 . SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 17 /04/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S BIHARI LAL HOLA RAM, JOHARI BAZAAR, JAIPUR. 2. THE RESPONDENT THE ITO WARD 1(1), JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (M.A NO. 16/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 4 M.A. NO. 16/JP/2017 M/S BIHARI LAL HOLA RAM, JAIPUR.