Yeshwant Jadhav, Pune V. Income-tax Officer,

MA 165/PUN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1730 (ITAT-PUNE)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 24-01-2014
• Assessment Year: 1998-1999
• Appeal Filed On: 27-08-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S.PANNU, ACCOUNTANT MEMBER M.A. NO.165/PN/2013 ARISING OUT OF ITA NO.283/PN/2004 (ASST. YEAR: 1998-99) SHRI YESHWANT TULSIDAS JADHAV, 195/1, MITRA NAGAR, BUDHWAR PETH, SOLAPUR. PAN: AEMPJ1987R APPLICANT VS. ITO, WARD-2(1), SOLAPUR RESPONDENT APPLICANT BY : SHRI VIJAY MEHTA RESPONDENT BY : SHRI P.L. PATHADE DATE OF HEARING : 31-01-2014 DATE OF PRONOUNCEMENT : 19-02-2014 ORDER PER SHAILENDRA KUMAR YADAV, J.M: THIS MISCELLANEOUS APPLICATION HAS BEEN MOVED BY T HE ASSESSEE ARISING OUT OF ORDER OF THE TRIBUNAL IN IT A NO. 283/PN/2004 DATED 28-09-2012. 2. THE ASSESSEE INTER ALIA HAS SUBMITTED THAT THE A PPEAL WAS DISPOSED OFF BY THE TRIBUNAL VIDE ITS ORDER DAT ED 28.09.2012 ALONG WITH ASSESSEES APPEAL AGAINST THE PENALTY ORDER PASSED U/S 271(L)(C) OF THE ACT BY THE ASSESS ING OFFICER FOR THE SAME YEAR BEING ITA NO.1251/PN/2004 AS WELL AS DEPARTMENT'S APPEAL FOR A.Y.1997-1998 BEING ITA NO. 206/ PN/ 2006. THE ASSESSEES APPLICATION PERTAIN TO RE CTIFICATION OF THE TRIBUNAL ORDER QUA ISSUES OF ENHANCEMENT OF SALES MADE BY THE CIT(A) AND ADDITION SUSTAINED ON ACCOUN T OF SALE OF OLD GUNNY BAGS. THE STAND OF ASSESSEE IS THAT H E HAD SHOWN THE SALES ON ACCOUNT OF CONTRACT RECEIPTS REC EIVABLE AT 55,83,582/- (58,774 QUINTALS * 95). THE ASSESSING OFFICER CAME TO A CONCLUSION THAT THE ASSESSEE'S RECEIVABLE S WERE 29,50,425/- AS AGAINST 28,15,610/-. 3. THE ASSESSING OFFICER HAD RELIED UPON THE ADDL. COLLECTOR'S LETTER DATED 13.01.1999 IN COMING TO TH E SAID CONCLUSION AND MADE AN ADDITION OF 1,34,815/- TO THE INCOME OF THE ASSESSEE. ACCORDING TO LEARNED AUTHO RIZED REPRESENTATIVE, THE SAID ADDITION WAS NOT AGITATED BEFORE THE ASSESSING OFFICER BECAUSE OF THE SMALLNESS OF THE A MOUNT. ON GOING THROUGH THE ASSESSMENT ORDER AND LETTER OF THE ADDL. COLLECTOR DISCUSSED ABOVE, THE CIT(A) WAS OF THE OPINION THAT THE ASSESSEE HAD SHOWN LESSER CONTRACT RECEIPTS TO THE EXTENT OF 19,90,483/- AND HENCE, ENHANCED THE INCOME OF THE ASSESSEE BY THAT AMOUNT. IN APPEAL, THE TRIBUNAL HAS HELD THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSEE'S INCOME SH OULD HAVE BEEN 75,74,065/- (79727 QUINTALS * 95) AS AGAINST 55,83,582/- AND HENCE, INCOME OF THE ASSESSEE WAS R IGHTLY ENHANCED BY 19,90,483 AND CONSEQUENTLY UPHELD THE ORDER OF CIT(A). IN THIS BACKGROUND, LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITTED THAT CERTAIN MISTAKE H AS BEEN CREPT IN THE ORDER PASSED BY TRIBUNAL. IN THIS REG ARD, THE LEARNED AUTHORIZED REPRESENTATIVE HAS SUBMITTED THA T DURING THE COURSE OF HEARING IT WAS STAND OF THE ASSESSEE THAT CIT(A) HAS GROSSLY ERRED IN ASSUMING THAT THE ASSESSEE HAD SUPPLIED 79,727 QUINTALS OF RICE DURING THE RELEVANT ASSESSM ENT YEAR EVEN THOUGH THE LETTER OF THE ADDL. DISTRICT COLLEC TOR DATED 13.01.1999 DID NOT MENTION THE PERIOD FOR WHICH THE ABOVE QUANTITY OF RICE WAS SUPPLIED BY THE ASSESSEE. IT W AS STATED THAT THE ASSESSEE HAD NOT SUPPLIED 20,953 QUINTALS OF RICE DURING A.Y. 1998-99 I.E. F.Y. 1997-98. 4. ACCORDING TO LEARNED AUTHORIZED REPRESENTATIVE, THE INFORMATION RECEIVED BY THE CIT(A) FROM THE LETTER DATED 13.01.1999 PERTAIN TO ACADEMIC YEAR FROM JULY TO JU NE WHEREAS THE ASSESSEE'S ACCOUNTING PERIOD IS FROM AP RIL TO MARCH. IT WAS FURTHER STATED THAT THE MATTER MIGHT BE SET ASIDE TO THE ASSESSING OFFICER IN ORDER TO VERIFY T HE ABOVE FACTS. FURTHER, IT WAS STATED THAT THE ASSESSEE WO ULD SUBMIT A RECONCILIATION AND LETTER FROM THE RELEVANT AUTHO RITIES STATING THE FACT THAT 20,953 QUINTALS OF RICE WERE NOT BEEN SUPPLIED BY THE ASSESSEE DURING THE RELEVANT ASSESS MENT YEAR AND REQUESTED TO MODIFY THE ORDER ACCORDINGLY. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESENTATIVE HAS OPPOS ED THIS MODIFICATION / RECTIFICATION. 5. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MA TERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS SHOWN THE CONTRACT RECEIPTS AS ITS INCOME IN RESPECT OF TRANSPORTATION OF 58,774 QUINTALS OF RICE UNDER THE SCHEME OF STATE GOVERNME NT. THE TOTAL AMOUNT CAME TO 55,83,582/- @ 95 PER QUINTAL. THE ASSESSING OFFICER MADE SOME VARIATIONS IN THE TOTAL INCOME OF THE ASSESSEE, AGAINST WHICH, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CONCERNED CIT(A). THE CIT(A) BY VIRTUE O F HIS POWER OF ENHANCEMENT, INCREASED THE SALES ON ACCOUN T OF CONTRACT RECEIPTS RECEIVABLE TO 75,74,065/- (79727 QUINTALS @ 95). WHILE MAKING ABOVE ENHANCEMENT, CIT(A) HAS R ELIED ON LETTER OF ADDL. COLLECTOR, SOLAPUR DATED 13.01.1 999. ACCORDING TO CIT(A), THE TOTAL QUANTITY OF RICE TRA NSPORTED BY THE ASSESSEE DURING THE YEAR WAS 79727 QUINTALS AS PER LETTER OF ADDL. COLLECTOR, SOLAPUR. ACCORDINGLY, HE HAS EN HANCED THE INCOME OF ASSESSEE BY 19,90,483/- (75,74,065/- - 55,83,582/-). ACCORDING TO LEARNED AUTHORIZED REPRESENTATIVE, THE LETTER OF CONCERNED COLLECTOR D ATED 13.01.1999 PERTAINS TO ACADEMIC YEAR JULY TO JUNE, WHEREAS THE ASSESSEES ACCOUNTING PERIOD IS FROM APRIL TO M ARCH. IN THIS REGARD, REQUEST WAS MADE BEFORE THE TRIBUNAL I N ERSTWHILE PROCEEDING FOR SETTING ASIDE THE ORDER IN ORDER TO VERIFY THE ABOVE FACTS. IN VIEW OF ABOVE, WE ARE O F THE VIEW THAT IN THE INTEREST OF JUSTICE, WE SET ASIDE THE I SSUE TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE IS SUE AS PER FACT AND LAW IN THE LIGHT OF ABOVE DISCUSSION, OF C OURSE, AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSE E. 6. NEXT ISSUE RAISED FOR RECTIFICATION IN MISCELLAN EOUS APPLICATION IS WITH REGARD TO NON-ADJUDICATION OF G ROUND NO.9. WE ALSO RESTORE THE SAME TO THE ASSESSING OF FICER TO DECIDE AS PER FACT AND LAW BECAUSE THE SAME WAS NOT CHALLENGED AT THE RELEVANT POINT OF TIME WHICH IS M ISTAKE APPARENT ON RECORD. LASTLY, THE AUTHORIZED REPRESE NTATIVE HAS POINTED OUT THAT THE GROUND NO.10 WAS NOT ADJUD ICATED BY THE TRIBUNAL. IN THIS REGARD, WE FIND THIS WAS NOT PRESSED, SO THE SAME WAS DISMISSED AND ACCORDINGLY, SAME NEE D NO INTERFERENCE BY WAY OF RECTIFICATION OF THE ISSUE R AISED BY WAY OF MISCELLANEOUS APPLICATION. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS PARTLY ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS THE 19 TH DAY OF FEBRUARY, 2014. SD/- SD/- (G.S.PANNU) (SHAILENDRA KUMAR YAD AV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED 19 TH FEBRUARY, 2014 GCVSR COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT(A)-III, PUNE 4) THE CIT-III, PUNE 5) THE DR, A BENCH, I.T.A.T., PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, ITAT PUNE BENCHES, PUNE.