DCIT, Jaipur V. ORIENTAL GEMCO PVT. LTD., Jaipur

MA 21/JPR/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4987 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 17-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJENDRA JHA J CIT DHK
• Keywords: Rejection of books of accounts; Opportunity of being heard
• 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.21/JP/16 ARISING OUT OF ITA NO. 369/JP/2014 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE DCIT, CIRCLE-2, JAIPUR CUKE VS. M /S ORIENTAL GEMCO (P) LTD, 3571 NIGAM HOUSE MSB KA RASTA, JOHARI BAZAR, JAIUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACO 6637 N VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI RAJENDRA JHA (J CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07.10.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 14/10/2016. 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 . 369/JP/14 DATED 8.10.2015. IN ITS APPLICATION, THE REVENUE HAS SU BMITTED THAT THE TRIBUNAL HAS SET ASIDE THE ASSESSMENT TO DECIDE THE ISSUE OF EST IMATION 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 DECISION OF THE TRIBUNAL IN SETTING ASIDE THE ASSESSMENT IS NOT JUSTIFIABLE AS ANY MATTER CANNOT BE SET ASIDE MA NO.21/JP/16 DCIT, CIRCLE-2, JAIPUR VS. M/S ORIENTAL GEMCO (P) L TD. 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. 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: 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS MERIT IN THE PROPOSAL OF BOTH THE PARTIES. ACCORDINGLY THE ISSUE RAISED IN ASSESSEES APPEAL I S SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRES H AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS (SUPRA) IS DELIVERED, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THUS THE APPEAL OF THE ASSES SEE IS ALLOWED FOR STATISTICAL PURPOSES. MA NO.21/JP/16 DCIT, CIRCLE-2, JAIPUR VS. M/S ORIENTAL GEMCO (P) L TD. 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 ON ACCOUNT OF UNVERIFIED PURCHASES AND EST IMATION OF APPROPRIATE GROSS PROFIT RATE THEREON. THE AO HAD APPLIED 25% G ROSS PROFIT RATE ON UNVERIFIED PURCHASES WHICH HAS BEEN CONFIRMED BY TH E LD. CIT(A) WHICH WAS THE SUBJECT MATTER OF APPEAL BEFORE THE COORDINATE BENC H. THE COORDINATE BENCH VIDE ITS ORDER DATED 8.10.2015 HAS SET ASIDE THE IS SUE RELATING TO ESTIMATION OF PROFITS AND RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HI GH COURT 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. MA NO.21/JP/16 DCIT, CIRCLE-2, JAIPUR VS. M/S ORIENTAL GEMCO (P) L TD. JAIPUR 4 WE ACCORDINGLY RECALL THE ORDER PASSED BY THE COORD INATE BENCH DATED 16.02.2016 AND DIRECT THE REGISTRY TO FIX THE MATTE R FOR FRESH HEARING IN DUE COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 14/1 0/2016. SD/- SD/- ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 14/10/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE DCIT, CIRCLE-2, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- M/S ORIDENTAL GEMCO (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.21 /JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR