M/s. Balar Gems, Surat V. The Income tax Officer,Ward-9(1), Surat

MA 215/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0111 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-11-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI D. K. TYAGI, JM AND SHRI A. MOHAN ALAN KAMONY, AM) MA NO.215/AHD/2012 [IN ITA NO.670/AHD/2012 FOR AY 2006-07) M/S. BALAR GEMS, 329-30, KRINK TOWER, SARDAR CHOWK, VARACHHA ROAD, SURAT P. A. NO. AACFB 9460F VS THE INCOME TAX OFFICER, WARD 9 (1), SURAT (APPLICANT ) (RESPONDENT) APPLICANT BY SHRI R. N. VEPARI, AR RESPONDENT BY SHRI Y. P. SHARMA, SR. DR DATE OF HEARING: 05-04-2013 DATE OF PRONOUNCEMENT: 12-04-2013 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE ASSESSEE FOR RECALLING THE ORDER OF THE TRIBUNA L IN ITA NO.670/AHD/2012 DATED 20-07-2012, FOR THE ASSESSMEN T YEAR 2006- 07. 2. THE LEARNED AR SUBMITTED BEFORE US THAT THE TRIB UNAL HAD ERRONEOUSLY CONFIRMED THE ORDER OF THE LEARNED CIT( A) WHEREIN PENALTY WAS SUSTAINED FOR ADDITION MADE FOR RS.33,5 3,384/- ON ACCOUNT OF DIFFERENCE IN CLOSING STOCK WHILE AS THE TRIBUNAL VIDE ITS ORDER DATED 16-09-2011 HAD REDUCED THE ADDITION TO RS.18,39,135/-. THE LEARNED AR FURTHER SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED VARIOUS DECISIONS CITED BY THE ASSESSEE IN THE WRITTEN MA NO.215/AHD/2012 (IN ITA NO.670/AHD/2012 - AY 2006-07 ) M/S. BALAR GEMS VS ITO, W-9(1), SURAT 2 SUBMISSION. IT WAS, THEREFORE, REQUESTED THAT THE O RDER OF THE TRIBUNAL MAY BE RECALLED FOR FRESH HEARING. 3. THE LEARNED DR STRONGLY OBJECTED TO THE SUBMISSI ONS OF THE LEARNED AR STATING THAT THE TRIBUNAL IS NOT EMPOWER ED TO REVIEW ITS ORDER AND THEREFORE, THE MISC. APPLICATION OF THE A SSESSEE MAY BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y PERUSED THE MATERIALS ON RECORD. IT IS EVIDENT FROM THE FACTS O N RECORD THAT THE BENCH ON THE EARLIER OCCASION DID NOT TAKE NOTE OF THE ORDER OF THE TRIBUNAL DATED 16-09-2011 IN THE CASE IN ITA NO.308 6/AHD/2009 FOR THE ASSESSMENT YEAR 2006-07, BEING THE QUANTUM APPE AL WHEREIN THE ADDITION WAS RESTRICTED TO RS.18,39,135/-. THEREFOR E, IT IS APPARENT THAT THERE IS A MISTAKE WITH RESPECT TO CONFIRMING THE LEVY OF PENALTY WHICH OUGHT TO HAVE BEEN BASED ON THE ADDITION SUST AINED IN THE QUANTUM APPEAL. ACCORDINGLY, WE HEREBY DIRECT THE L EARNED AO TO RE- WORK THE PENALTY LEAST IMPOSABLE FOR THE ADDITION S USTAINED FOR RS.18,39,135/-. 5. WITH RESPECT TO THE SUBMISSIONS OF THE LEARNED A R THAT THE BENCH HAD NOT CONSIDERED THE DECISIONS CITED BY HIM , WE DO NOT FIND ANY MERIT BECAUSE THE BENCH HAD EARLIER CATEGORICAL LY MADE A FINDING AT PARA 7 PAGE 9 OF THE ORDER THAT THUS, THIS IS A CASE WHERE ESTIMATE HAS BEEN MADE ON A SCIENTIFIC BASIS BY THE LD. AO ON HIS WISDOM DUE TO THE GROSS NEGLIGENCE AND WILLFUL DEFAULT ON THE PART OF THE ASSESSEE IN NOT MAINTAINING PROPER BOOKS OF MA NO.215/AHD/2012 (IN ITA NO.670/AHD/2012 - AY 2006-07 ) M/S. BALAR GEMS VS ITO, W-9(1), SURAT 3 ACCOUNTS AS PER PROVISIONS OF THE ACT. THEREFORE TH E DECISIONS RELIED UPON BY THE LD. AR AND THE LD. CIT(A) WILL N OT APPLY TO THE FACTS OF THIS CASE. FURTHER, THIS FINDING OF THE TRIBUNAL WHICH WAS BASED ON THE OBSERVATIONS OF THE LEARNED AO WAS NOT ALTERED BY THE TRIBUNAL IN THE QUANTUM APPEAL. THEREFORE, WE PARTI ALLY CONFIRM THE ORDER OF THE LEARNED CIT(A) AS CITED ABOVE IN THE F OURTH PARAGRAPH OF THIS ORDER. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 12-04-2013 SD/- SD/- (D. K. TYAGI) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT LAKSHMIKANT LAKSHMIKANT LAKSHMIKANTA AA A DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, AHMEDABAD MA NO.215/AHD/2012 (IN ITA NO.670/AHD/2012 - AY 2006-07 ) M/S. BALAR GEMS VS ITO, W-9(1), SURAT 4 1. DATE OF DICTATION: DIRECT ON COMPUTER 08-04-2 013/09-04-2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 09-04-2013 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: