ITO, Jaipur V. RAJ KUMAR AGARWAL, Jaipur

MA 35/JPR/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5220 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-01-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: RAJIV SOGANI C A DHK
• Keywords: Rejection of books of accounts; Opportunity of being heard
• Section: 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YA DAV, AM M.A. NO. 35/JP/2016 (ARISING OUT OF ITA NO. 504/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR: 2009-10 INCOME TAX OFFICER, WARD 5(5), JAIPUR. CUKE VS. RAJ KUMAR AGARWAL, 18-B, NARVARPURI COLONY, GANGAPOLE, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEUPA 9861 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI RAJIV SOGANI (CA) LQUOKBZ DH RKJH[K @ DATE OF HEARING: 06/01/2017 MN?KKS'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 11/01/2017 VKNS'K@ ORDER PER: KUL BHARAT, J.M. THE REVENUE HAS FILED THIS MISC. APPLICATION ON 11/ 04/2016 SEEKING RECALLING OF THE ORDER OF THE ITAT, JAIPUR BENCH, JAIPUR DATED 12/11/2015 PASSED IN ITA NO. 504/JP/2013 FOR A.Y. 2 009-10. 2. IN THIS MISC. APPLICATION, THE REVENUE HAS SUBMI TTED THAT THE HONBLE TRIBUNAL HAS SET ASIDE THE ASSESSMENT TO DEC IDE THE ISSUE OF MA 35/JP/2016_ ITO VS. RAJ KUMAR AGARWAL 2 ESTIMATION OF INCOME ON ACCOUNT OF BOGUS/UNVERIFIAB LE PURCHASES TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER THE J UDGMENT OF HONBLE HIGH COURT IS DELIVERED IN THE CASE OF ANUJ KUMAR V ARSHNEY AND OTHERS. 3. IT WAS SUBMITTED BY THE REVENUE THAT THE DECISION OF THE TRIBUNAL IN SETTING ASIDE THE ASSESSMENT IS NOT JUST IFIABLE AS ANY MATTER CANNOT BE SET ASIDE FOR AFRESH ASSESSMENT SU BJECT TO AN UNCERTAIN FUTURE EVENT AND ALSO FOR INDEFINITE PERI OD. THE SET- ASIDE ASSESSMENTS ARE REQUIRED TO BE COMPLETED BY THE AO WITHIN THE TIME PRESCRIBED IN SECTION 153(2A) OF THE IT ACT, 1961 WHI CH IS ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDE R OF THE ITAT IS RECEIVED BY THE CONCERNED COMMISSIONER. THIS LIMITAT ION CANNOT BE EXTENDED BY THE HONBLE ITAT ITSELF FOR INDEFINITE A ND UNCERTAIN PERIOD. AS NO LIMITATION HAS BEEN PRESCRIBED FOR THE DECISI ON OF THE HONBLE HIGH COURT, THEREFORE AN ASSESSMENT CANNOT BE KEPT IN ABEYANCE TILL SUCH ORDER OF THE HONBLE HIGH COURT. FURTHER, IT WA S SUBMITTED THAT IT IS MENTIONED IN THE TRIBUNAL ORDER THAT DEPARTMENTAL REPRESENTATIVE HAD STATED THAT THE ISSUE IN QUESTION MAY BE DECIDE D AS PER THE JUDGMENT OF HONBLE ITAT DATED 22.10.2014 RENDERED I N THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO. THIS OBSERVATI ON IS FACTUALLY MA 35/JP/2016_ ITO VS. RAJ KUMAR AGARWAL 3 NOT CORRECT BECAUSE NO SUCH ACCEPTANCE WAS GIVEN BY DEPARTMENTAL REPRESENTATIVE. SINCE THE MISTAKE IS APPARENT FROM THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR THE SAME MAY KIND LY BE RECTIFIED UNDER SECTION 254(2) OF IT ACT, 1961 BY RECALLING TH E APPEAL ORDER AND DECIDING THE SAME ON MERITS. HE ALSO SUBMITTED THAT SIMILAR IDENTICAL ISSUE HAS ALSO BEEN DECIDED BY THE HONBLE ITAT, JAI PUR BENCH, JAIPUR IN CASE OF DCIT VS. M/S ORIENTAL GEMCO (P) LTD. IN M A NO. 21/JP/2016 (ARISING OUT OF ITA NO. 369/JP/2014 A.Y. 2008-09) O RDER DATED 14/10/2016. 4. HERE IT WOULD BE RELEVANT TO REFER TO THE FINDING S OF THE CO- ORDINATE BENCH, WHICH IS THE SUBJECT MATTER OF PRES ENT APPLICATION, WHICH IS AS UNDER: 2.4 I HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THERE IS MERIT IN THE PROPOSAL OF BOTH THE PARTIES. ACCORDINGLY THE ISSUE RAISED IN ASSESSEES APPEAL IS SET ASIDE AND RESTORED BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT OF HONBLE RAJASTHAN HIGH COURT IN THE CA SE OF ANUJ KUMAR VARSHNEY & OTHERS (SUPRA) IS DELIVERE D, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD T O THE ASSESSEE. THUS THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. THE LD SR. DR TOOK US THROUGH THE RELEVANT PROVIS IONS OF SECTION 153(2A) OF THE ACT WHICH STATES AS UNDER: MA 35/JP/2016_ ITO VS. RAJ KUMAR AGARWAL 4 (2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SE CTIONS(1), (1A), (1B) AND (2) IN RELATION TO THE ASSESSMENT YE AR COMMENCING ON THE 1ST DAY OF APRIL, 1971 AND ANY SU BSEQUENT ASSESSMENT YEAR, AN ORDER OF FRESH ASSESSMENT IN P URSUANCE OF AN ORDER U/S 250 OR 254 OR SECTION 263 OR SECTIO N 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER U/S 250 OR SECTIO N 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHI EF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSI ONER OR, AS THE CASE MAY BE, THE ORDER U/S 263 OR SECTION 2 64 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSI ONER. 6. FROM THE PERUSAL OF MATERIAL AVAILABLE ON RECORD , IT IS NOTED THAT ONLY ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS R ELATED TO REJECTION OF BOOKS OF ACCOUNTS ON ACCOUNT OF UNVERIFIED PURCH ASES AND ESTIMATION OF APPROPRIATE GROSS PROFIT RATE THEREON . THE AO HAD APPLIED 25% GROSS PROFIT RATE ON UNVERIFIED PURCHAS ES WHICH HAS BEEN CONFIRMED BY THE LD. CIT(A) WHICH WAS THE SUBJECT MATT ER OF APPEAL BEFORE THE COORDINATE BENCH. THE COORDINATE BENCH V IDE ITS ORDER DATED 8.10.2015 HAS SET ASIDE THE ISSUE RELATING TO ESTIMATION OF PROFITS AND RESTORED THE MATTER BACK TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGMENT OF HONBLE RAJASTHA N HIGH COURT IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO (S UPRA) IS DELIVERED. FROM THE PERUSAL OF RECORDS, IT IS ALSO NOTED THAT THE MA 35/JP/2016_ ITO VS. RAJ KUMAR AGARWAL 5 PROVISIONS OF SECTION 153(2A) OF THE ACT WERE NOT BR OUGHT TO THE NOTICE OF THIS TRIBUNAL. WE ACCORDINGLY RECALL THE O RDER PASSED BY THE COORDINATE BENCH OF THIS TRIBUNAL DATED 12/11/2015 A ND DIRECT THE REGISTRY TO FIX THE MATTER FOR FRESH HEARING IN DUE COURSE. 5. IN THE RESULT, THE M.A. OF THE REVENUE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 11/01/2017. SD/- SD/- FOE FLAG ;KNO DQY HKKJR (VIKRAM SINGH YADAV) (KUL BHARAT) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 11 TH JANUARY, 2017 * RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 5(5), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- SHRI RAJ KUMAR AGARWAL, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 35/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR