Shri Jagish Prasad Shivhare, Gwalior V. I.T.O. 1(1), Gwalior

MA 35/AGR/2018

AI Insights

The case revolves around a miscellaneous application for rectification filed by Jagdish Prasad Shivhare against an order by the Income-tax Officer, Gwalior, concerning the assessment year 2010-11. The application contested the application of a 3% net profit rate in the final order, arguing that a 2.7% rate should have been applied as per judicial precedents considered by the tribunal. The tribunal, after reviewing the application and the original order, concluded that the application of the 3% rate was a deliberate judicial decision and not a mistake, thus dismissing the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 112945 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 11 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-10-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-09-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 16-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 MA no. 35/Agr/2018 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “FRIDAY”: NEW DELHI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI ANUBHAV SHARMA, JUDICIAL MEMBER (Through virtual hearing) M.A.No. 35/Agr/2018 ( In ITA No. 77/Agr/2015) A.Y. 2010-11 Jagdish Prasad Shivhare, C-29, Sadashiv Nagar, Koteshwar Road, Gwalior. PAN: ARSPS1641N Vs Income-tax Officer, 1(1), Gwalior. APPELLANT RESPONDENT Assessee represented by Shri Rajendra Sharma, Adv. Department represented by Shri Shailendra Srivastava, Sr. DR Date of hearing 15.09.2023 Date of pronouncement 03.10.2023 O R D E R PER ANUBHAV SHARMA, JM: Heard and perused the record. 2. The Assessee has filed misc. application for rectification of the alleged mistake in the order dated 06.06.2018. It is submitted on behalf of the assessee that though judicial precedents were appreciated by Bench to approve the net profit rate of 2.7%, however, at the time of passing the final order, the Bench had applied 3% net profit rate. Learned AR has submitted that net profit of 2.7% on the basis of 2 MA no. 35/Agr/2018 judicial order as appreciated should have been applied instead of 3% net profit rate and this is an error apparent on record. 3. The Bench on thoughtful consideration and after going through the order is of the of the considered view that although reliance has been placed on certain judicial precedents with regard to net profit rate, however, it appears that the Bench has considered the net profit rate of 2.7% only to be the guiding star. However, in its discretion approved and directed the AO to apply 3% net profit rate on estimated sales and the error alleged cannot be considered to be one falling in the category of one apparent from record. The exercise of judicial discretion arising out of facts of case cannot be said to be mistake apparent from record. There is no merit in the misc. application and the same is dismissed. Order pronounced in open court on 03.10.2023. Sd/- Sd/- (SHAMIM YAHYA ) (ANUBHAV SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI 3 MA no. 35/Agr/2018