Appeal Details
Counselvise Citation
[2018] 124 COUNSELVISE.COM (IT) 7130 (ITAT-RAIPUR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 2 month(s) 7 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
17-08-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
DB
Assessment Year
misc
Appeal Filed On
10-06-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE, JUDICIAL MEMBER M.A. NO.03/RPR/2016 (IN ITA NO.60/RPR/2013) ASSESSMENT YEAR : 2009-10 ASHISH SHARMA, FLAT NO.207, WING- 1, CAPITAL PALACE, KAVITA NAGAR, AVANTI, RAIPUR (CG). VS. DCIT- 1(1), RAIPUR (CG). PAN : AJGPS9815G (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SUNIL KUMAR AGRAWAL, CA DEPARTMENT BY : SHRI SANJAY KUMAR, DR DATE OF HEARING : 10-08-2018 DATE OF PRONOUNCEMENT : 17-08-2018 O R D E R PER R. K. PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT ON THE GR OUND THAT CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE REFERRING TO TH E MISCELLANEOUS APPLICATION SUBMITTED THAT THE ASSESSING OFFICER IN THE INSTANT CASE REJECTED THE BOOK RESULTS BY APPLYING PROVISIONS OF SECTION 145( 3) AND ESTIMATED NET PROFIT AT THE RATE 3% OF GROSS SALE OF LIQUOR. THE ASSESSEE DID NOT CHALLENGE THE REJECTION 2 MA NO.03/RPR/2016 OF BOOK RESULTS AND APPLICATION OF PROVISIONS OF SE CTION 145(3) BEFORE THE LD. CIT(A) BUT CHALLENGED THE ARBITRARY ESTIMATION OF N ET PROFIT AT 3% SINCE THE ASSESSING OFFICER HAS NOT GIVEN ANY ADMISSIBLE BASI S FOR DOING THAT. SINCE THE ASSESSEE HAD GIVEN COMPARABLE CASES BEFORE THE LD. CIT(A), THE LD. CIT(A) HAS SENT THE COMPARABLE CASES TO THE ASSESSING OFFICER FOR HIS COMMENTS AND THE ASSESSING OFFICER GAVE THE REMAND REPORT. AFTER CO NSIDERING THE REMAND REPORT AND REJOINDER OF THE ASSESSEE TO THE SAME, THE LD. CIT(A) ESTIMATED THE NET PROFIT AT 0.80%. THE REVENUE FILED AN APPEAL BEFORE THE T RIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 19.02.2016 ENHANCED THE NET PROFIT RATE TO 2% BY FOLLOWING THE DECISION OF THE TRIBUNAL IN ITA NOS.224 & 225/BLPR/ 2011 FOR ASSESSMENT YEAR 2006-07 ORDER DATED 19.06.2015. HE SUBMITTED THAT THE TRIBUNAL WHILE DECIDING THE ISSUE DID NOT CONSIDER THE REMAND REPORT OF THE ASSESSING OFFICER PROPERLY AND ALSO DID NOT CONSIDER THE WRITTEN SUBMISSION FI LED BY THE ASSESSEE. FURTHER, HE SUBMITTED THAT THE TRIBUNAL WITHOUT CONSIDERING THE DECISION OF THE TRIBUNAL IN ITA NOS.224 & 225/BLPR/2011 (SUPRA) HAS APPLIED THE NET PROFIT RATIO WHICH IS NOT JUSTIFIED SINCE THE PRINCIPLES OF NATURAL JU STICE HAS BEEN VIOLATED. THE TRIBUNAL HAS NOT CONSIDERED AS TO HOW THE DECISION RELIED ON BY IT IS APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. HE ACCOR DINGLY SUBMITTED THAT SINCE 3 MA NO.03/RPR/2016 CERTAIN MISTAKES HAVE CREPT IN THE ORDER OF THE TRI BUNAL, THEREFORE, THE SAME SHOULD BE RECALLED AND THE APPEAL OF THE ASSESSEE B E HEARD AFRESH. 3. THE LD. DR ON THE OTHER HAND HEAVILY RELIED ON T HE ORDER OF THE TRIBUNAL. HE SUBMITTED THAT THE ASSESSEE IS TRYING TO REQUEST THE BENCH TO RECALL ITS OWN ORDER WHICH AMOUNTS TO REVIEW OF ITS OWN ORDER BY T HE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN LAW. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THE TRIBUNAL WHILE ADJUDICATING THE ISSUE HAS FOLLOWED THE DECISION IN ITA NOS.224 & 225/BLPR/2011 (SUPRA). SINCE IT IS THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL, THE TRIBUNAL, IN OUR OPINION, IS NOT REQUIRED TO CONFRONT THE SAME TO THE ASSESSEE. SINCE THE TRIBUNAL AFTER CONSIDERING THE DECISION OF THE CO- ORDINATE BENCH OF THE TRIBUNAL IN IDENTICAL BUSINES S HAS APPLIED THE PROFIT RATE OF 2%, THEREFORE, WE DO NOT FIND ANY APPARENT MISTAKE THAT HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECALLING OF THE ORDER. IF WE ACCEPT THE ARGUMENT AS ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE, IT WI LL AMOUNT TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN LAW. WE, THEREFORE, DISMISS THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 4 MA NO.03/RPR/2016 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH AUGUST, 2018. SD/- SD/- (SUCHITRA KAMBLE) (R. K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17-08-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., RAIPUR. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY ITAT, RAIPUR
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