Vipin Silk Mills, Surat V. The Addl.CIT.,Range-2, Surat

MA 23/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6275 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-04-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G S SOURYAWANSHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, B BENCH (BEFORE S/SHRI G.D. AGARWAL, VICE-PRESIDENT AND D.K. TYAGI, JUDICIAL MEMBER) MA NO.23/AHD/2011 IN ITA NO.3260/AHD/2008 [ASSTT. YEAR : 2005-2006] M/S.VIPIN SILK MILLS 165, SHRIRAM INDUSTRIAL SOCIE`TY UDHANA MAGDALLA ROAD SURAT. VS. ACIT, RANGE-2 SURAT. (APPELLANT) (RESPONDENT) APPLICANT BY : WRITTEN SUBMISSIONS REVENUE BY : SHRI G.S.SOURYAWANSHI O R D E R PER G.D. AGARWAL, VICE-PRESIDENT: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS SOUGHT FOR THE MODIFI CATION OF THE ORDER OF THE ITAT IN ITA NO.3260/AHD/2008 DATED 23-6-2010. 2. AT THE TIME OF HEARING BEFORE US, NONE APPEARED ON BEHALF OF THE ASSESSEE BUT A LETTER WAS FILED STATING THAT THE MA TTER MAY BE DECIDED CONSIDERING THE SUBMISSIONS MADE IN THE RECTIFICATI ON APPLICATION. 3. WE HAVE HEARD LEARNED DR AND PERUSED THE MATERIA L PLACED BEFORE US. IN THE ASSESSEES APPEAL, THE FIRST ISSUE BEFO RE THE ITAT IS WITH REGARD TO THE REJECTION OF THE ASSESSEES BOOKS OF ACCOUNT S AND THE APPLICATION OF GP RATE. THE ASSESSING OFFICER HAD REJECTED THE BO OKS OF ACCOUNTS AND APPLIED GP RATE OF 8%. BEFORE THE ITAT IT WAS PLEA DED BY THE LEARNED COUNSEL THAT THIS ISSUE IS COVERED BY THE ASSESSEE S OWN CASE IN THE IMMEDIATELY PRECEDING YEAR I.E. A.Y.2004-2005 IN WH ICH THE ITAT APPLIED GP RATE OF 7.14%. FOLLOWING THE SAME, THE ITAT PARTLY ALLOWED THE ASSESSEES APPEAL. THE RELEVANT FINDINGS OF TH E ITAT READ AS UNDER: MA NO.23/AHD/2011 IN ITA NO.3260/AHD/2008 -2- 3. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE, SH RI MANISH J SHAH STATED THAT THE ISSUE UNDER CONSIDERATION, EXACTLY ON SAME FACTS, WAS DECIDED BY THIS TRIBUNAL IN ASSESSEES OWN CASE IN IMMEDIATE PRECEDING YEAR FOR ASSESSMENT YEAR 2004-05 IN ITA NO.382/AHD/2008 DATED 11-06-2010, WHEREIN THE TRIBU NAL HAS RESTRICTED THE GROSS PROFIT RATE AT 7.14% AS AGAINS T 8% CONFIRMED BY LOWER AUTHORITIES BY GIVING FOLLOWING FINDINGS I N PARA-6:- 6. ON CONSIDERATION OF THE ABOVE FACTS AND THE ORD ER OF THE TRIBUNAL FOR PRECEDING ASSESSMENT YEAR DATED 09-09- 2009 (SUPRA) WE ARE OF THE VIEW THAT REJECTION OF THE BO OK RESULTS IS JUSTIFIED WHICH IS ALSO NOT CONTESTED BY THE LEA RNED COUNSEL FOR THE ASSESSEE. IN THE SAME SET OF CIRCUM STANCES THE LEARNED CIT(A) IN THE PRECEDING ASSESSMENT YEAR APPLIED GROSS PROFIT RATE OF 7.14% WHICH IS CONFIRMED BY TH E TRIBUNAL. WE, THEREFORE, CONFIRM THE FINDINGS OF TH E AUTHORITIES BELOW WITH REGARD TO REJECTION OF THE B OOK RESULTS AND ESTIMATE OF PROFIT, HOWEVER, THE ORDERS, ARE MO DIFIED TO THE EXTENT THAT THE AUTHORITIES BELOW SHALL APPLY G ROSS PROFIT RATE OF 7.14% AS AGAINST 8% APPLIED BY THE AUTHORIT IES BELOW. THE AO SHALL WORK OUT THE RESULTANT ADDITION ACCORDINGLY. THE ORDERS OF THE AUTHORITIES BELOW AR E, THEREFORE MODIFIED TO THAT EXTENT. AS A RESULT THES E GROUNDS OF APPEAL OF THE ASSESSEE ARE PARTLY ALLOWED. 4. WE FIND THAT THIS ISSUE IS SQUARELY COVERED BY T HE DECISION IN ASSESSEES OWN CASE, EXACTLY ON SIMILAR FACTS. RESP ECTFULLY FOLLOWING THE SAME, WE ALLOW THIS ISSUE PARTLY IN V IEW OF THE TRIBUNALS DECISION. THIS ISSUE OF THE ASSESSEES A PPEAL IS PARTLY ALLOWED AS INDICATED ABOVE. 3. IN THE MISC. APPLICATION IN THE LAST PARA, THE A SSESSEE HAS STATED AS UNDER: FROM THE ABOVE, IT IS SEEN THAT THE HONBLE ITAT I NTENDED TO FOLLOW THE METHOD OF ADOPTING THE GROSS PROFIT OF T HE LD. CIT(A). THE GP CONFIRMED FOR AY 2003-04 WAS 7.14%. THIS RA TE OF GROSS PROFIT FOR AY 2003-04 WAS WORKED OUT BY ADOPT ING THE METHOD OF ESTIMATING THE GP BY TAKING AVERAGE OF EA RLIER TWO ASSESSMENT YEARS AND THAT OF YEAR UNDER CONSIDERATI ON. AS MA NO.23/AHD/2011 IN ITA NO.3260/AHD/2008 -3- POINTED OUT ABOVE, THE AVERAGE GP FOR AY 2005-06 CO MES TO RS.6.11% INSTEAD OF 7.14% AS DIRECTED BY THE TRIBUN AL. HOWEVER, WE FIND THAT IN THE ORDER OF THE YEAR UNDE R APPEAL, THE ITAT NEVER INTENDED TO FOLLOW THE METHOD OF ADOPTING GP RATE BY THE CIT(A) IN AY 2003-2004. THE ITAT SIMPLY ADOPTED THE ORDER OF THE TRIBUNAL FOR A.Y.2004-2005 WHEREIN GP RATE OF 7.14% WAS APPLIED. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THERE IS NO APPAR ENT MISTAKE IN THE ORDER OF THE ITAT. WE THEREFORE REJECT THE ASSESSEES MA . 4. IN RESULT, ASSESSEES MA IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 15 TH APRIL, 2011 SD/- SD/- (D.K. TYAGI) JUDICIAL MEMBER (G.D. AGARWAL) VICE-PRESIDENT PLACE : AHMEDABAD DATE : 15-04-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD 1. DATE OF DICTATION : 08-04-2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER. : 12-04-2011 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P.S./P.S : 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT. : 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER : 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P.S./P.S. : 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK. : 15-04-2010 MA NO.23/AHD/2011 IN ITA NO.3260/AHD/2008 -4- 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK. : 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER. : 10. DATE OF DESPATCH OF THE ORDER :