ITO 26(3)(4), V. VIJAY SINGH SOLANKI,

MA 317/MUM/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6428 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 30-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR , ACCOUNTANT MEMBER M.A. NO. 317/MUM./2016 ARISING OUT OF ITA NO. 2098/MUM./2010 ( ASSESSMENT YEAR : 20 09 10 ) INCOME TAX OFFICER WARD 26(3)(4), MUMBAI . APP LICANT V/S SHRI VIJAYSINGH SOLANKI FLAT NO.34, RAMDAS NIWAS SAIGAL WADI, POWAI, MUMBAI 400 076 PAN CFZPS2169N . RESPONDENT ASSE SSEE BY : NONE REVENUE BY : MS. POOJA SWAROOP DATE OF HEARING 09 . 0 3 .2018 DATE OF ORDER 13.04.2018 O R D E R PER SAKTIJIT DEY, J.M. B Y THIS MISC. APPLICATION, THE REVENUE SEEKS RECALL OF THE APPEAL ORDER DATED 20 TH JANUARY 2016, PASSED IN ITA NO.2098/MUM./2014, F OR MISTAKES SUPPOSED TO HAVE CRE PT INTO THE APPEAL ORDER. 2 . AS STATED IN THE M.A. AND ALSO SUBMITTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE, THE TRIBUNAL ERRED IN ESTIMATING THE PROFIT AT 8% IN TERMS OF SECTION 44AD OF THE ACT, WHICH IS NOT APPLICABLE TO THE ASSESSEE. 2 SHRI VIJAYSINGH SOLANKI 3 . HAVING HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE AND CAREFULLY PERUSED THE APPEAL ORDER PASSED BY THE TRIBUNAL IT IS VERY MUCH CLEAR THAT WHILE DEALING WITH THE ISSUE OF ESTIMATION OF PROFIT, THE TRIBUNAL NOWHERE HAS GIVEN A FINDING THAT THE PROVISIONS OF SECTION 4 4AD IS APPLICABLE TO THE ASSESSEE. WHILE CONSIDERING THE REASONABLE RATE AT WHICH THE PROFIT FROM J AGGERY BUSINESS IS TO BE ESTIMATED THE TRIBUNAL HAS SIMPLY ADOPTED THE RATE OF PROFIT OF 8% AS PROVIDED IN SECTION 44AD FINDING IT REASONABLE AND DIRECT ED TH E ASSESSING OFFICER TO ESTIMATE THE PROFIT AT THE SAME RATE. TH US , IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE APPARENT ON THE FACE OF RECORD AS ENVISAGED U/S 25 4(2) TO RECALL THE APPEAL ORDER. T HEREFORE, WE DO NOT FIND ANY MERIT IN THE MISC. APPLICATIO N FILED BY THE DEPARTMENT. ACCORDINGLY, THE SAME IS DISMISSED. 4 . IN THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.04.2018 SD/ - RAMIT KOCHAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 13.04.2018 3 SHRI VIJAYSINGH SOLANKI COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI