TRIM LABORATARIES P. LTD, V. ITO 5(3)(3),

MA 207/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7417 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-12-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1992-1993
• Appeal Filed On: 30-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRAVIN VARMA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE SHRI N. V. VASUDEVAN, J.M. AND SHIRI RAJENDRA SINGH, A.M. M.A. NO. : 207/MUM/2011 (ARISING OUT OF ITA NO.2095/MUM/2004) ASSESSMENT YEAR : 1992-93 M/S. TEEM LABORATORIES LTD. 54 B, PROCTOR ROAD, MUMBAI-400 007 VS. INCOME TAX OFFICER 5(3)(3), R. NO.528, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. RD. MUMBAI-400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI P RAVIN VARMA DATE OF HEARING : 1 8.11.2011 DATE OF PRO NOUNCEMENT : 14.12.2011 ORDER PER RAJENDRA SINGH (AM) : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 19.11.2010 OF THE TRIBUNAL IN ITA NO.2095/MUM/2004, ON THE GROUND OF SOME APPAREN T MISTAKE. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE FOR THE RELEVANT YEAR HAD DECLARED GROSS LOSS COMPARED TO GROSS PROFIT RATE O F 53.07% IN THE IMMEDIATE PRECEDING YEAR (ASSESSMENT YEAR 1991-92) AND GROSS PROFIT RATE OF 61.44% IN THE (ASSESSMENT YEAR 1990-91). TH E ASSESSEE HAD EXPLAINED THE FALL IN GROSS PROFIT RATE ON ACCOUNT OF INCREASE IN M.A. NO :207/MUM/2011 M/S. TEEM LABORATORIES LTD. 2 EXPENDITURE AS WELL AS FALL IN SALE PRICE DUE TO LA BOUR PROBLEM. THE ASSESSEE HOWEVER, COULD NOT SUBSTANTIATE EXPLANATIO N BY PRODUCING NECESSARY EVIDENCES. THE AO ALSO FOUND THAT THE ASS ESSEE COULD NOT PRODUCE THE STOCK REGISTER FOR FINISHED AND SEMI FI NISHED GOODS. HE, THEREFORE, REJECTED THE ACCOUNTS AND ESTIMATED THE GROSS PROFIT RATE AT 50%, RESULTING INTO AN ADDITION OF `. 9,20,608/-. THE AO HAD ALSO MADE DISALLOWANCES OF INTEREST PAYMENT OF `. 6,30,000/-, ON ACCOUNT OF INTEREST FREE FUNDS PROVIDED TO THE SISTER CONCERN. THE AO HAD ALSO INITIATED PENALTY PROCEEDING U/S.271(1)(C) OF THE I .T. ACT, IN RELATION TO THE ABOVE TWO ALLOWANCES AND LEVIED THE PENALTY @ 1 00% OF THE TAX SOUGHT TO BE EVADED. THE ADDITIONS MADE IN THE ASSE SSMENT HAVE BECOME FINAL. CIT(A) CONFIRMED THE PENALTY LEVIED B Y THE AO. 3. IN FURTHER APPEAL, THE TRIBUNAL IN THE IMPUGNED ORDER DATED 19.11.2010 OBSERVED THAT THE ASSESSEE HAD EXPLAINED THE FALL IN GROSS PROFIT RATE DUE TO GOODS BEING SOLD AT LOWER RATE B ECAUSE OF THE LABOUR PROBLEM AND THERE BEING INCREASE IN COST OF MATERIA L AND ESTABLISHMENT. THE ASSESSEE COULD HAVE EASILY SUBST ANTIATED THE EXPLANATION BY SHOWING THE COMPARATIVE BILLS OF SAL ES AND EXPENDITURE, WHICH HAD NOT BEEN DONE. THEREFORE, THE EXPLANATION OF THE ASSESSEE ON THE FACTS OF THE CASE WAS NOT FOUND BONAFIED AND THE PENALTY IN RELATION TO THE ADDITION ON ACCOUNT OF GROSS PROFIT RATE WAS UPHELD. THE TRIBUNAL HOWEVER, FOR THE DETAILED REASONS GIVE N DELETE THE PENALTY IN RELATION TO THE DISALLOWANCE OF INTEREST. AGGRIE VED BY THE SAID DECISION, THE ASSESSEE HAS FILED THE MISCELLANEOUS APPLICATION. 4. THE APPLICATION OF THE ASSESSEE WAS FIXED FOR HE ARING ON 18.11.2011, NOTICE FOR WHICH HAD BEEN SENT BY THE R PAD, WHICH HAD BEEN RETURNED BY THE POSTAL AUTHORITIES WITH OBSERV ATION LEFT. NOTICE HAD BEEN SENT AT THE ADDRESS GIVEN BY THE ASSESSEE IN THE M.A. NO :207/MUM/2011 M/S. TEEM LABORATORIES LTD. 3 MISCELLANEOUS APPLICATION AS WELL AS IN THE MEMORAN DUM OF APPEAL. THE ASSESSEE HAD NOT INTIMATED ANY CHANGE OF ADDRES S. WE, THEREFORE, PROCEED TO DECIDE THE APPEAL ON THE BASIS OF MATERI AL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. ON CAREFUL CON SIDERATION, WE DO NOT FIND ANY APPARENT MISTAKE IN THE ORDER OF THE T RIBUNAL. THE TRIBUNAL HAD PASSED A REASONED AND SPEAKING ORDER, AS TO WHY THE EXPLANATION OF THE ASSESSEE REGARDING FALL IN GP RA TE COULD NOT BE FORMED BONAFIDE, AS MENTIONED IN PARA 3 EARLIER. TH E TRIBUNAL CAN RECTIFY ONLY AN APPARENT MISTAKE AND IT HAS NO POWE R TO REVIEW ITS OWN ORDER. WE, THEREFORE, SEE NO MERIT IN THE MISCELLAN EOUS APPLICATION AND THE SAME IS, THEREFORE, REJECTED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS REJECTED. ORDER PRONOUNCED ON THIS 14 TH DAY OF DECEMBER, 2011. SD/- SD/- ( N.V. VASUDEVAN ) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT: 14/12/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, SMC - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI