M/s P. G. Virgincar & Sons, Margao V. The Assistant Commissioner of Income Tax, Circle-1, Margao., Margao

MA 16/PAN/2016

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 7726 (ITAT-PANAJI)
• Duration Of Justice: 2 year(s) 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 18-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: Y V RAVIRAJ
• Keywords: Rectification of order
• Section: 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI RAM LAL NEGI , J M M A NO . 16/PAN.2016 (ARISING OUT OF ITA NO. 48 /PAN.201 6 ) (ASSESSMENT YEAR: 20 12 - 13 ) ASST. CIT, CIRCLE - 1, MARGAO, PAULA, PANAJI, GOA VS. M/S. P. G. VIRGINCAR & SONS B. NO. 38, NEAR MUNICIPAL GARDEN, SALCETE, MARGAO, GOA PAN/GIR NO. AAEFP 0142 N ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI Y. V. RAVIRAJ RESPONDENT BY : SHRI PRAMOD VAIDYA DATE OF HEARING : 16.11. 201 8 DATE OF PRONOUNCEMENT : 17.01 .2019 O R D E R PER SHAMIM YAHYA, A. M.: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN THE O RDER OF THIS TRIBUNAL IN ITA NO . 48 /PAN . /201 6 VIDE ORDER DATED 1 2. 07 .201 6 . 2. THE SUBMISSION OF THE ASSESSEE ARE AS UNDER: 1. THE ISSUE INVOLVED IN THE SAID APPEAL BY THE DEPT. AS PER GROUNDS OF APPEAL IS ,' WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE CIT (A) - I ERRED IN DELETING THE ADDITION OF RS.3306018/ - MADE BY A.O ON ACCOUNT OF REVISED GROSS PROFIT COMPUTED BY AOP. GR. NO 2 SPECIFICALLY RAISES THIS ISSUE. GR. NO. 3 AND 4 ARE IN SUPPORT OF GR.NO 2 GRANTING RELIEF. GR. NO'S 1,5 AND 6 ARE GENERAL IN NATURE. IT IS IMPORTANT TO STATE HERE THAT THE ADDITION MADE BY A.O WAS DELETED BY CIT(A) BASED ON AVERAGE PROFIT OF THE ENTIRE BUSINESS CONSISTING OF ACTIVITY OF PURCHASE, SALE OF PETROL AND DIESEL & ACTIVITY OF SALE OF VEHICLE, LUBE AND SPARES. HENCE THE GROUNDS TAKEN BY DEPT RELATE TO DELETION OF SUCH ADDITION BY CI T (A) BASED ON AVERAGE PROFITS OF THE ENTIRE BUSINESS. THERE WAS NO SEPARATE GROUND ALSO BY THE DEPT RELATING DELETION OF ADDITION ON ACCOUNT OF SALE OF VEHICLE, LUBE AND SPARES. 2 MA NO. 16/PAN.2016 IT MAY ALSO BE NOTED THAT THE AVERAGE PROFIT RATE OF 1.64% ADOPTED BY CIT - (A) AND ACCEPTED BY THE ASSESSEE IS THE AVERAGE PROFIT RATE OF THE ENTIRE BUSINESS AND NOT OF THE ACTIVITY OF PURCHASE AND SALE OF PETROL & DIESEL. 2. THE HON'BLE TRIBUNAL VIDE ITS ORDER DATED 12.07.2016 WHILE DECIDING THE ISSUE HAS SPLIT THE GROUND RAISED BY THE DEPT IN TO DELETION OF ADDITION RELATING TO 2 ACTIVITIES EVEN THOUGH NO SUCH SEPARATE GROUNDS WERE RAISED BY THE DEPT BEFORE THE HON'ABLE TRIBUNAL. ALSO THE DELETION OF ADDITION BY CIT (A) WAS BASED ON AVERAGE PROFIT RATE OF 1.64% WHICH IS PR OFIT OF ENTIRE BUSINESS. 3. WE SUBMIT AS UNDER (A) AS PER SPECIFIC GROUNDS RAISED BY THE DEPT, THE DELETION OF ADDITION BY CIT (A) BY ADOPTING PROFIT RATE OF ENTIRE BUSINESS @ 1.64 % WAS CHALLENGED. HENCE THERE WAS NO SEPARATE GROUND BY DEPT. CHALLENGING PROFITS OF EACH ACTIVITY SEPARATELY. (B) THE AVERAGE PROFIT RATE OF 1.64% ADOPTED BY CIT (A) AND ACCEPTED BY THE ASSESSEE IS THE AVERAGE PROFIT RATE OF THE TOTAL BUSINESS OF THE ASSESSEE. (C) THE ACTUAL PROFIT RATE FOR THE YEAR AND AVERAGE PROFIT RATE IN THE ACTIVITY OF PURCHASE AND SALE OF PETROL IS MUCH LOWER AND ADOPTING HIGHER RATE OF 1.64%, ONLY TO SUCH ACTIVITY RESULTS IN ENHANCEMENT OF INCOME. 4. THE HON'ABLE TRIBUNAL IN PARA '5' OF ITS ORDER DATED 12.07.2016 HAS ADOPTED THE AVERAGE RATE OF 1.64% ONLY TO ACTIVITY OF PURCHASE AND SALE OF DIESEL WHEREAS THE DELETION OF ADDITION BY CIT (A) WAS BASED ON AVERAGE PROFIT RATE OF 1.64% FOR THE ENTIRE BUSINESS OF THE ASSESSEE. ALSO THE DEPT IN THE GROUNDS OF APPEAL HAS CHALLENGED THE DELETION OF ADDITION BA SED ON AVERAGE PROFITS OF THE ENTIRE BUSINESS. A COPY OF ORDER DATED 12.07.2016 PASSED BY THE HON'ABLE IN ITA NO: 48 / PNJ / 2016 FOR A.Y: 2012 - 13 IS ENCLOSED HEREWITH AS ANNEXURE - 'A' 5. IN THE LIGHT OF ERROR POINTED OUT IN PARAGRAPH 5 ON PAGE 3 AND 4 OF THE ORDER AND FOR THE REASONS SET OUT IN VARIOUS PARAGRAPHS HEREIN ABOVE, IT IS RESPECTFULLY SUBMITTED THAT THE TRIBUNAL MAY BE PLEASED TO AMEND ITS CONCLUSIONS SUITABLY IN PARAGRAPH 4 ON PAGE 3 AND 4 OF ITS ORDER. 3. WE HAVE HEARD BOTH THE COUNSEL AN D PERUSED THE RECORDS. WE FIND THAT IN THE MAIN APPEAL CONSEQUENT UPON THE ADDITION BY THE A.O ., THE LD. CIT(A) HAS APPLIED GROSS PROFIT RATE OF 1.64% UPON THE TOTAL TURNOVER OF THE ASSESSEE AND HAS ACCORDINGLY GRANTED RELIEF. 4. UPON THE REVENUES AP PEAL IN THIS REGARD, THE ITAT HAD UPHELD THE ACTION OF THE LD. CIT(A) ONLY WITH RESPECT TO THE SALE AND PURCHASE OF PETROL AND DIESEL. THUS, THE ITAT HAD UPHELD THE REVENUES GRIEVANCE IN RESPECT OF THE OTHER ITEM OF THE ASSESSEES 3 MA NO. 16/PAN.2016 TURNOVER. NOW THE ASSESS EE HAS SUBMITTED A MISCELLANEOUS APPLICATION CONTENDING THAT THE ITAT HAS ERRED IN THIS REGARD AS THERE WAS NO SUCH GROUND BY THE REVENUE BEFORE IT. 5. WE FIND THAT WHEN THE APPEAL IS FILED BEFORE THE ITAT, THE ITAT HAS THE JURISDICTION TO GRANT PART REL IEF. IF THE ASSESSEE IS AGGRIEVED BY THAT, THE SAME CANNOT BE THE SUBJECT MATTER OF MISCELLANEOUS APPLICATION. WHAT THE ASSESSEE IS SEEKING BEFORE US IS A REVIEW OF THE ORDER OF THE ITAT WHICH IS NOT PERMISSIBLE U/S. 2 5 4 ( 2 ) OF THE A CT. IT IS SETTLED LAW THAT THE ERROR IN THE JUDGMENT , IF ANY, CANNOT BE CONSTRUED TO BE MISTAKE APPARENT FROM RECORD. IT IS ALSO SETTLED LAW THAT THE REVIEW OF THE ORDER IN THE GARB OF RECTIFICATION OF MISTAKE APPARENT FROM RECORD IS NOT PERMISSIBLE. 6. IN THIS REGARD, THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE STANDS DISMISSED. O RDER PRONOUNCED BY LISTING THE RESULT ON THE NOTICE BOARD OF THE BENCH UNDER RULE 34(4) OF THE APPELLATE TRIBUNAL RULES, 1963. SD/ - RAM LAL NEGI JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER DATED : 1 7 . 0 1 . 2 0 1 9 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, PANJI CITY CONCERNED; (5) THE DR, ITAT, PANJI ; (6) GUARD FILE . BY ORDER ROSHANI , SR. PS ( SR. P.S. / P.S. ) ITAT