Sh. Shama Nand Sharma, Jammu V. The Income-tax Officer, Jammu

MA 21/ASR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9241 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 12-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.21(ASR)/2012 ARISING OUT OF I.T.A. NO. 428(ASR)/2011 ASSESSMENT YEAR:2008-09 PAN :ADCPS8088H SH. SHAMA NAND SHARMA, VS. THE INCOME TAX OFFICER, JAMMU. WARD 1(3), JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.JOGINDER SINGH, CA RESPONDENT BY:SH. R.L. CHHANALIA, DR DATE OF HEARING:05/10/2012 DATE OF PRONOUNCEMENT:05/10/2012 ORDER PER BENCH ; THE PRESENT MISCELLANEOUS APPLICATION ARISES FROM THE ORDER OF THE TRIBUNAL DATED 30.04.2012 PASSED IN ITA NO.428(ASR )/2011 FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS SUBMITTED THE MISCELLANEOUS APP LICATION DATED 07.06.2012, WHICH FOR THE SAKE OF CLARIFICATION IS REPRODUCED AS UNDER: SUB: MISCELLANEOUS APPLICATION U/S 254(2) OF THE INCOME-TAX ACT, 1961 IN THE CASE OF SH. SHAMANAND SHARMA. SIR, IT IS HUMBLY SUBMITTED THAT TE HONBLE TRIBUNAL HA S PASSED AN ORDER IN THE CASE OF SHAMANAD SHARMA APPEAL NO.428/ ASR/2011 DATED 2 30.04.2012. IN THE SAID CASE THE HONBLE BENCH HAS REVERSED THE ORDER OF CIT(A), JAMMU AND IN THE SAID ORDER CONCLUDED TH AT THE G.P. RATE ADOPTED IN THE ASSESSEES OWN CASE FOR THE A.Y. 200 6-07 WHICH HAS BEEN MADE U/S 143(3) OF THE ACT, SHOULD BE ADOPTED. IT IS TO SUBMIT THAT THE CASE FOR THE ASSESSMENT Y EAR 2006-07 HAS NEVER BEEN TAKEN UP FOR SCRUTINY AND NO ASSESSMENT U/S 143(3) FOR THE ASSESSMENT YEAR HAS NEVER BEEN MADE IN THE CASE OF ASSESSEE. IN THE APPELLATE ORDER OF HONBLE TRIBUNAL, THE AP PLICATION OF GROSS PROFIT RATE OF THE YEAR PRIOR TO THE PRECEDIN G YEAR INSTEAD OF PRECEDING YEAR IGNORING THE PRINCIPLE OF CONTINUITY AND CONSISTENCY ON THE GROUND THAT THE ASSESSMENT FOR THE A.Y. 2006-07 IS MADE U/S 143(3) OF THE ACT NO SUCH SCRUTINY ASSESSMENT WAS M ADE FOR THE YEAR 2007-08. HOWEVER, IN FACT NO SUCH ASSESSMENT HAS BE EN MADE U/S 143(3) FOR THE A.Y. 2006-07 AND THIS IS ONLY AN ASS UMPTION MADE BY THE HONBLE BENCH. NONE OF THE DOCUMENTS ON RECORD VIZ THE A/R SUBMIS SION REVENUES SUBMISSION, THE ORDER OF LD. AO NOR THE O RDER OF LD. CIT(A) FINDS ANY MENTION THAT THE ASSESSMENT FOR TH E A.Y. 2006-07 HAS BEEN MADE U/S 143(3) OF THE ACT. IN VIEW OF THE ABOVE, THE HONBLE BENCH REVERSED T HE ORDER OF CIT(A), JAMMU ON THE FACT WHICH ARE FACTUALLY INCOR RECT. THEREFORE, IT IS HUMBLY AND WITH DUE RESPECT SUBMITTED THAT THE S AID ORDER OF HONBLE BENCH IS NOT A LEGALLY CORRECT ORDER AND MI STAKE HAS CREPT IN THE ORDER ON ACCOUNT OF WRONG FACTS. IT IS, THEREFO RE, PRAYED THAT THE AFORESAID ORDER MAY KINDLY BE RECALLED BY INVOKING THE PROVISIONS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961. YOURS FAITHFULLY, SD/- (SHAMANAND SHRMA) 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE HAS POINTED OUT THE MISTAKE IN THE ORD ER OF THE TRIBUNAL IN GROUND NO.1 THAT THE ITAT IN ITS PARA 4 HAD MENTION ED ABOUT THE ASSESSMENT FOR THE ASSESSMENT YEAR 2006-07 HAVING BEEN MADE U/ S 143(3) OF THE ACT, 3 WHICH, IN FACT, HAS NOT BEEN MADE AND IS APPARENT A ND IS BORNE OUT OF RECORD BEFORE THE AO AND THE BEFORE THE LD. CIT(A). SINCE THE SAID MENTION OF THE ASSESSMENT U/S 143(3) GOES DEEP TO THE ROOT OF THE MATTER IN OUR DECISION FOR ESTIMATING INCOME, ONCE THE BOOKS OF ACCOUNT HAVING BEEN REJECTED U/S 145(3) OF THE ACT. WE FIND THAT THERE IS MISTAKE AP PARENT FROM RECORD AND THERE IS NO MATERIAL ON RECORD TO SUGGEST THE SCRUT INY ASSESSMENT U/S 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2006-07 AND THIS IS APPARENT FROM RECORD. IN OUR VIEW, THERE BEING A MISTAKE APPARENT FROM RE CORD IN GROUND NO.1, THE SAME IS RECALLED AND THE REGISTRY IS DIRECTED TO RE FIX THE MATTER FOR ARGUMENTS OF THE GROUND NO.1 RAISED BY THE ASSESSEE ON 06.11. 2012. NO SEPARATE NOTICE WILL BE SERVED TO THE PARTIES SINCE THE SAME HAS BE EN NOTED BY THEM. 4. IN THE RESULT, THE M.A. NO.21(ASR)/2012 OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH OCTOBER, 2012. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 5TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. SHAMA NAND SHARMA, JAMMU. 2. THE ITO WARD 1(3), JAMMU. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER