The ITO, Ward-8, Vapi V. Shri Tayab Yunus Barudgar, Vapi

MA 202/AHD/2016

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 5828 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 3 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 11-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R KAVITHA
• Keywords: Revision of order
• Section: 254(2); 13

Judgement Text

PAGE 1 OF 2 INCOM TAX APPELLATE TRIBUNAL SURAT-BENCH-SURAT BEFORE C .M. GARG, JM & O. P. MEENA, AM MISCELLANEOUS APPLICATION NO.202/AHD/2016 ARISING OUT IN I.T.A NO.1351/AHD/2012 [ [ / ASSESSMENT YEAR : 2009-10 INCOME TAX OFFICER WARD-3 VAPI V. SHRI TAYAB YUNUS BARUDGAR STAR BUILDERS 108, ROZY TOWER NEAR VAISHALI CINEMA KOPARLI ROAD VAPI PAN: AKUPB7031L APPELLANT RESPONDENT ASSESSEE BY NONE REVENUE BY MS. R. KAVITHA JCIT, SR. D.R. DATE OF HEARING 09.03.2018 DATE OF PRONOUNCEMENT 13 .03.2018 ORDER PER O. P. MEENA, AM 1. BY WAY OF THIS MISCELLANEOUS PETITION, THE REVENUE HAS POINTED OUT THAT THE TRIBUNAL VIDE ORDER DATED 27.05.2016 IN I.T.A. NO. 1531 /AHD /2013 HAD DISMISSED THE REVENUE APPEAL BY HOLDING THAT THE REVENUE HAS NOT BROUGHT OUT ANY MATERIAL ON RECORD TO CONTROVERT THE FINDINGS OF LD. CIT (A) WHICH HAS GIVEN THE FINDING THAT 15% MARGIN OF PROFIT IS NOT POSSIBLE IN THE CASE OF THE ASSESSEE AND CENTRAL CIRCLE SURAT HAD COMPLETED THE ASSESSMENTS OF SMALL TRADERS BY ESTIMATING PROFIT RATE BETWEEN 0.5% TO 0.7% ON SIMILAR FACTS OF THE ASSESSEE. HOWEVER, THE ITAT IN I.T(SS).A. NO.46,48,50,52, 54 AND 56/AHD/2013 DTD. 29.08.2016 IN THE CASE OF SHRI VIJAY PRANUBHAI DESAI ON SIMILAR FACTS CONFIRMED THE ADDITION @ 3% OF THE TOTAL TURNOVER AS AGAINST THE PROFIT RATE OF 2% CONFIRMED IN THE CASE OF THE ASSESSEE BY THE TRIBUNAL. THEREFORE, THE LD. DR REQUESTED TO RECTIFY THE IMPUGNED ORDER UNDER SECTION 254(2) BY TAKING PROFIT RATE AT 3% OF TURNOVER OF URD PURCHASES. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE TRIBUNAL WHILE GIVING ITS DECISION ON THE APPEAL UNDER PAGE 2 OF 2 CONSIDERATION HAS CATEGORICALLY STATED THAT THE REVENUE HAS NOT BROUGHT OUT ANY MATERIAL TO CONTROVERT THE FINDINGS OF LD. CIT (A) ABOUT THE GROSS PROFIT RATE ON SIMILAR FACTS IN CENTRAL CIRCLE SURAT HAVE CONSIDERED THE RATE AT 0.5% TO 0.75% OF THE TURNOVER. THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD, WHICH CAN BE RECTIFIED AT THIS STAGE. FURTHER, THE SUBSEQUENT ORDER DTD. 29.08.2016 OF TRIBUNAL IN I.T (SS).A. NO.46, 48, 50, 52, 54 AND 56/AHD/2013 HAS BEEN PASSED MUCH AFTER THE DATE OF IMPUGNED ORDER DTD. 27.05.2016, HENCE, SUBSEQUENT ORDER OF TRIBUNAL CANNOT BE CONSIDERED FOR RECTIFICATION OF EARLIER ORDER, WHICH WAS NOT AVAILABLE AT THE TIME OF PASSING OF ORIGINAL ORDER. THEREFORE, THE CONTENTION OF THE REVENUE AMOUNTS REVISION OF ORDER, WHICH IS NOT PERMISSIBLE IN LAW. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS DEVOID OF ANY MERIT AND THERE BEING NO MISTAKE APPARENT FROM RECORD, HENCE, IT IS THEREFORE, REJECTED. 3. IN THE RESULT, MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED. 4. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.03.2018 SD/- SD/- (C.M. GARG) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 13 TH MARCH, 2018/OPM COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT