Shamji Maya & Sons, Bhuj V. The Income Tax Officer, Ward-2, Bhuj

MA 3/RJT/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2784 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 26-01-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER, And SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER M.A No.03/Rjt/2020 in आयकर अपील सं./ITA No. 93/Rjt/2016 िनधाᭅरण वषᭅ/Asstt. Years: 2011-2012 Shamji Maya & Sons, Narayan Chambers, Bank of Baroda Bldg., Station Road, Rajkot-. PAN: ABDFS5703J Vs. I.T.O., Ward-2, Bhuj. Assessee by : Shri Kalpesh Doshi, A.R Revenue by : Shri B.D. Gupta, Sr. D.R सुनवाई कᳱ तारीख/Date of Hearing : 08/07/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 16/09/2022 आदेश/O R D E R PER BENCH: The assessee by way of this Miscellaneous Application is seeking to recall the order dated 30/07/2019 passed by the Co-ordinate Bench, in ITA No. 93/RJT/2016 for Asst. Year 2011-2012 on the reasoning that there is a mistake apparent from the record. Therefore, the same needs to be recalled within the provision of section 254(2) of the Act. M.A No.03/Rjt/2020 in ITA No. 93/Rjt/2016 A.Y. 2011-12 2 2. The assessee in this Miscellaneous Application has submitted that the learned AR has filed the written submissions before the bench wherein an alternate contention was raised to tax the contract receipts of ₹15,41,000 on estimated basis in view of the judgment of Hon’ble Gujarat High Court in the case of President Industries reported in 124 taxman 654 but the same has not been adjudicated by the bench inadvertently. In view of the above, the Ld. AR contended that there is an apparent mistake in the order of the ITAT and therefore the same should be recalled. 3. On the other hand the Ld. DR for the Revenue has not brought anything on record contrary to the argument advanced by the Ld. AR for the Revenue. However, he vehemently supported the order of the Hon’ble ITAT. 4. We have heard the rival contentions of both the parties and perused the relevant materials available on record. The Hon’ble Jurisdictional High Court in the case of ACIT Vs Saurashtra Kutch Stock Exchange Ltd. reported in 262 ITR 146 (Guj.) has held that non-consideration of judgment of Hon’ble Jurisdictional High Court would amount to a mistake apparent from the record. The judgment of Hon’ble Gujarat High Court was subsequently upheld by the Hon’ble S.C. reported in 305 ITR 227 which reads as under: (f) Non-consideration of a judgment of the jurisdictional High Court would always constitute a mistake apparent from the record, regardless of the judgment being rendered prior to or subsequent to the order proposed to be rectified; 4.1 Admittedly, the learned AR for the assessee has filed the written submissions of two pages dated nil where the following alternate contention was raised: 9. Without prejudice, the Ld. A.O. has made addition of gross receipts of Rs.5,41,000/-. In view of the decisions of the Hon. Gujarat High Court in the case of President Industries only profit embedded in the transactions needs to be taxed. As per audit report and accepted by the Ld. A.O., net profit as 0.51%. In either way profit accepted by the Ld. A.O. at 0.51 may kindly be accepted and balance may kindly be directed to be deleted. M.A No.03/Rjt/2020 in ITA No. 93/Rjt/2016 A.Y. 2011-12 3 4.2 We have perused the order of the ITAT and find that no reference to the alternate contention of the learned AR of the assessee has been made in the order. Thus, in view of the above, we hold that the order of the ITAT suffers from the apparent mistake in so far as it does not deal with the judgment of the Hon’ble Jurisdictional High Court cited by the learned AR for the assessee in view of the judgment of Hon’ble Gujarat High Court in the case of Saurashtra Kutch Stock Exchange Ltd. (Supra). Accordingly, we are inclined to recall the order of the ITAT for fresh adjudication as per the provision of law. The registry is directed to restore the appeal to its original number and fixed the same for fresh hearing in due course of time under intimation to both the parties. Hence the Miscellaneous Application filed by the assessee is allowed. 5. In the result, Miscellaneous Application filed by the assessee is allowed. Order pronounced in the Court on 16/09/2022 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 16/09/2022 Manish