ACIT, Jaipur V. PANSARI GEMS INTERNATIONAL, Jaipur

MA 187/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5240 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHAILENDRA SHARMA CIT DHK
• Assessee Lawyers: VISHNU KHANDELWAL
• Section: 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, AIPUR 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. 187JP/16 (ARISING OUT OF ITA NO. 458/JP/14) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 ACIT, CENTRAL CIRCLE-1, JAIPUR CUKE VS. M/S PANSARI GEMS INTERNATIONAL, 13 PRATAP COLONY, TONK ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAGEP 1543 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VISHNU KHANDELWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI SHAILENDRA SHARMA (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 27.01.2017 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 30/01/2017 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 . 458/JP/14 DATED 20.11.2015. 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. 2. IT WAS SUBMITTED BY THE REVENUE THAT THE DECISIO N OF THE TRIBUNAL IN SETTING ASIDE THE ASSESSMENT IS NOT JUSTIFIABLE AS ANY MATTER CANNOT BE SET ASIDE MA NO. 187/JP/16 ACIT, CENTRAL CIRCLE-1, JAIPUR VS. M/S PANSARI GEMS INTERNATIONAL, JAIPUR 2 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. SINCE THE MISTAKE IS APPARENT FROM THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR THE SAME MAY KINDLY BE RECTIFIED UNDE R SECTION 254(2) OF IT ACT, 1961 BY RECALLING THE APPEAL ORDER 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: WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE UNDER CONSIDERATION RELATES TO UNVERIFIABLE PURCHASES. THE COORDINATE BENCH OF IT AT IN BUNCH APPEALS BY CONSOLIDATED ORDER IN THE CASE OF ANUJ KUMAR VAR SHNEY & OTHERS VS. ITO (ITA NO.187/JP/2012 DATED 22.10.2014) HAS HELD THAT 15% OF UNVERIFIABLE PURCHASES SHALL BE HELD TO BE INCOME O F THE ASSESSEE FROM UNDISCLOSED SOURCES IN THE RELEVANT YEARS. IT IS A LSO BROUGHT TO OUR NOTICE THAT BOTH REVENUE AND ASSESSEE HAVE GONE IN APPEAL BEFORE HONBLE RAJASTHAN HIGH COURT AGAINST THIS BUNCH ORD ERS. IN SIMILAR CASES, THIS BENCH HAS SET ASIDE THE ISSUE RAISED IN SUCH A PPEALS, TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMEN T OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF ANUJ KUMAR VARS HNEY & OTHERS (SUPRA ) IS DELIVERED. THEREFORE, FOLLOWING OUR EA RLIER ORDERS ON THE SAME LINES, THE ISSUE RAISED IN SUBJECT APPEAL IS ALSO ACCORDINGLY SET ASIDE TO THE FILE OF THE AO TO DECIDE AFRESH AFTER THE DECIS ION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO(SUPRA) AFTER GIVING ADEQUATE OPPORTUNITY OF BEI NG HEARD TO THE ASSESSEE. 4. THE LD DR TOOK US THROUGH THE RELEVANT PROVISIONS O F SECTION 153(2A) OF THE ACT WHICH STATES AS UNDER: MA NO. 187/JP/16 ACIT, CENTRAL CIRCLE-1, JAIPUR VS. M/S PANSARI GEMS INTERNATIONAL, JAIPUR 3 (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-S ECTIONS(1), (1A), (1B) AND (2) IN RELATION TO THE ASSESSMENT YEAR COMMENCI NG ON THE 1 ST DAY OF APRIL, 1971 AND ANY SUBSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER U/S 250 OR 254 OR SECTION 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESS MENT, 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 RECEIV ED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINC IPAL COMMISSIONER OR COMMISSIONER 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 COMMISSIONER OR COMMISSIONER. 5. FROM THE PERUSAL OF MATERIAL AVAILABLE ON RECORD, I T IS NOTED THAT ONLY ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS RELATE D TO UNVERIFIED PURCHASES AND ESTIMATION OF APPROPRIATE GROSS PROFIT RATE THE REON. THE AO HAD APPLIED 30% GROSS PROFIT RATE WHICH HAS BEEN REDUCED TO 16. 6% BY THE LD. CIT(A) WHICH WAS THE SUBJECT MATTER OF APPEAL BEFORE THE COORDIN ATE BENCH. THE COORDINATE BENCH VIDE ITS ORDER DATED 20.11.2015 HA S SET ASIDE THE SAID ISSUE AND RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HIGH COUR T IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO(SUPRA) IS DELIVERED . FROM THE PERUSAL OF RECORDS, IT IS ALSO NOTED THAT THE PROVISIONS OF SE CTION 153(2A) OF THE ACT WERE NOT BROUGHT TO THE NOTICE OF THE COORDINATE BENCH . WE ACCORDINGLY RECALL THE ORDER PASSED BY THIS TRIB UNAL DATED 20.11.2015 AND DIRECT THE REGISTRY TO FIX THE MATTER FOR FRESH HEA RING IN DUE COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISPOSED OFF ACCORDINGLY. MA NO. 187/JP/16 ACIT, CENTRAL CIRCLE-1, JAIPUR VS. M/S PANSARI GEMS INTERNATIONAL, JAIPUR 4 ORDER PRONOUNCED IN THE OPEN COURT ON 30/01/201 7 SD/- SD /- (KUL BHARAT) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 30/01/2017 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ACIT, CENTRAL CIRCLE-1, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S PANSARI GEMS INTERNATIONAL JAIP UR 3. VK;DJ VK;QDR@ CIT (CENTRAL), JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-(CENTRAL) JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO.187/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR