ACIT, Jaipur V. KINUBABA JEWELLERY (INDIA) PVT. LTD., Jaipur

MA 18/JPR/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4982 (ITAT-JAIPUR)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-11-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-01-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH MEENA JCIT DHK
• Keywords: Bogus purchase; Rejection of books of accounts
• Section: 263

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 DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.18/JP/16 (ARISING OUT OF ITA NO.561/JP/2013 ) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE INCOME TAX OFFICER, WARD 2(2), JAIPUR CUKE VS. M/S KINU BABA JEWELLERY (INDIA) PVT. LTD. 41 K TOWER, MAHAVEER MARG, C-SCHEME, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACJ 4305 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAJEEV SOGANI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI PREM PRAKASH MEENA, (J CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.11.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 25/11/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO . 561/JP/13 DATED 07.09.2015. IN ITS APPLICATION, THE REVENUE HAS S UBMITTED THAT THE TRIBUNAL HAS SET ASIDE THE ASSESSMENT TO DECIDE THE ISSUE OF ESTIMATION OF INCOME ON ACCOUNT OF BOGUS/UNVERIFIABLE PURCHASES TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER THE JUDGEMENT OF HONBLE HIGH COUR T IS DELIVERED IN THE CASE OF ANUJ KUMAR VARSHNEY AND OTHERS. MA NO. 18/JP/16 (A/O OF ITA NO. 561/JP/13) ITO WARD 2(2), JAIPUR VS. M/S KINUBABA JEWELLERY (I NDIA) (P) LTD. JAIPUR 2 2. IT WAS SUBMITTED BY THE REVENUE THAT THE DECISION OF THE TRIBUNAL IN SETTING ASIDE THE ASSESSMENT IS NOT JUSTIFIABLE AS ANY MATTER CANNOT BE SET ASIDE FOR AFRESH ASSESSMENT SUBJECT TO AN UNCERTAIN FUTUR E EVENT AND ALSO FOR INDEFINITE PERIOD. THE SET- ASIDE ASSESSMENTS ARE R EQUIRED TO BE COMPLETED BY THE AO WITHIN THE TIME PRESCRIBED IN SECTION 153(2 A) OF THE IT ACT, 1961 WHICH IS ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN W HICH THE ORDER OF THE ITAT IS RECEIVED BY THE CONCERNED COMMISSIONER. THIS LIMI TATION CANNOT BE EXTENDED BY THE HONBLE ITAT ITSELF FOR INDEFINITE AND UNCER TAIN PERIOD. AS NO LIMITATION HAS BEEN PRESCRIBED FOR THE DECISION OF THE HONBLE HIGH COURT, THEREFORE AN ASSESSMENT CANNOT BE KEPT IN ABEYANCE TILL SUCH ORD ER OF THE HONBLE HIGH COURT. FURTHER, IT WAS SUBMITTED THAT IT IS MENTION ED IN THE TRIBUNAL ORDER THAT DEPARTMENTAL REPRESENTATIVE HAD STATED THAT THE ISS UE IN QUESTION MAY BE DECIDED AS PER THE JUDGEMENT OF HONBLE ITAT DATED 22.10.2914 RENDERED IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO. THIS OBSERVATION IS FACTUALLY NOT CORRECT BECAUSE NO SUCH ACCEPTANCE WAS GIVEN BY DEPARTMENTAL REPRESENTATIVE. SINCE THE MISTAKE IS APPARENT FROM THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR THE SAME MAY KINDLY BE R ECTIFIED UNDER SECTION 254(2) OF IT ACT, 1961 BY RECALLING THE APPEAL ORDE R AND DECIDING THE SAME ON MERITS. 3. HERE IT WOULD BE RELEVANT TO REFER TO THE FINDIN GS OF THE CO-ORDINATE BENCH, WHICH IS THE SUBJECT MATTER OF PRESENT APPLI CATION, WHICH IS AS UNDER: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS BENCH OF ITAT HAS TAKEN DECISION TO APPLY 15% NET PROFIT RATE ON UNVERIFIABLE PU4RCHAWSES IN THE CASES OF ANUJ KUMAR VARSHNEY AND OTHERS VS. ITO (ITA NO. 187/JP/20-12 D ATED 22.10.2014). HOWEVER, ASSESSEES REQUEST IS ACCEPTED AND THE AO IS DIRECTED TO REFRAME ASSESSMENT ORDER BY CONSIDERING OUTCOME OF THIS ISSUE AS APPEAL IN CASE OF UNVERIFIABLE PURCHASE/ BOGUS PURCHASES I S PENDING BEFORE HONBLE RAJASTHAN HIGH COURT. MA NO. 18/JP/16 (A/O OF ITA NO. 561/JP/13) ITO WARD 2(2), JAIPUR VS. M/S KINUBABA JEWELLERY (I NDIA) (P) LTD. JAIPUR 3 4. THE LD DR TOOK US THROUGH THE RELEVANT PROVISION S OF SECTION 153(2A) OF THE ACT WHICH STATES AS UNDER: (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-S ECTIONS(1), (1A), (1B) AND (2) IN RELATION TO THE ASSESSMENT YEAR COMMENCING O N THE 1ST DAY OF APRIL, 1971 AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER O F FRESH ASSESSMENT IN PURSUANCE OF AN ORDER U/S 250 OR 254 OR SECTION 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 250 OR SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMM ISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSI ONER OR, AS THE CASE MAY BE, THE ORDER U/S 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL C OMMISSIONER OR COMMISSIONER. 5. FROM THE PERUSAL OF MATERIAL AVAILABLE ON RECORD , IT IS NOTED THAT ONLY ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS RELATE D TO REJECTION OF BOOKS OF ACCOUNTS AND ADDITION ON ACCOUNT OF UNVERIFIED PUR CHASES. THE COORDINATE BENCH VIDE ITS ORDER DATED 07.09.2015 HAS SET ASIDE THE ISSUE AND RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE SAM E AFRESH AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HIGH COURT IN THE C ASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO(SUPRA) IS DELIVERED. FRO M THE PERUSAL OF RECORDS, IT IS ALSO NOTED THAT THE PROVISIONS OF SECTION 153(2A ) OF THE ACT WERE NOT BROUGHT TO THE NOTICE OF THE COORDINATE BENCH. WE ACCORDINGLY RECALL THE ORDER PASSED BY THE COORD INATE BENCH DATED 07.09 .2015 AND DIRECT THE REGISTRY TO FIX THE REVE NUE APPEAL FOR FRESH HEARING IN DUE COURSE. MA NO. 18/JP/16 (A/O OF ITA NO. 561/JP/13) ITO WARD 2(2), JAIPUR VS. M/S KINUBABA JEWELLERY (I NDIA) (P) LTD. JAIPUR 4 THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/ 2016. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 25/11/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 2(2), JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S KINUBABA JEWELLERY (INDIA) (P) LTD. JAIPUR 3. VK;DJ VK;QDR@ CIT I, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-I, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 18/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.