ITO, Wd.-1(4) Nashik., Nashik V. M/s Mangalmurti Construction, Nashik

MA 35/PUN/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1011 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-09-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 17-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MODI
• Assessee Lawyers: S U PATHAK

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 35 / PN/201 2 (ARISING OUT OF ITA NO. 845 & 946 / P N/ 20 09 ) ASSESSMENT YEAR : 200 4 - 0 5 ITO, WARD - 1(4), NASHIK VS. M/S. MANGALMURTI CONSTRUCTION, 13, SHRIRAM SANKUL, OPP. HOTEL PANCHAVATI, VAKILWADI, NASHIK (APPELLANT) (RESPONDENT) PAN NO. AAGFM7492Q APPELLANT BY: SHRI MODI RESPONDENT BY: SHRI S.U. PATHAK DATE OF HEARING : 23 - 0 8 - 2013 DATE OF PRONOUNCEMENT : 23 - 08 - 2 013 ORDER P ER R.S. PADVEKAR , JM : - TH IS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE IN ITA NO S . 845 & 946/PN/2009 ORDER DATED 29 - 06 - 201 1 FOR THE A.YS. 2004 - 05 AND 2005 - 06 U/S. 254(2) OF THE INCOME - TAX ACT . 2. IT IS STATED IN THE APPLICATION THAT THE TRIBUNAL HAS NOT APPRECIATED THE FACTUAL ASPECT IN RESPECT OF THE A.Y. 2003 - 04 B Y OBSERVING THAT THE DEPARTMENT HAS ACCEPTED THE DECISION OF THE LD. CIT(A) VIDE HIS ORDER DATED 24 - 04 - 2006. IT IS FURTHER PLEA DED IN THE APPLICATION THAT AGAINST THE ORDER OF THE LD. CIT(A) FOR THE A.Y. 2003 - 04 , THE APPEAL WAS FILED IN THE ITAT, PUNE ON 17 - 07 - 2006. IT IS FURTHER STATED THAT THE ITAT, PUNE ULTIMATELY HELD THAT THE CIT HAS ERRED IN ADOPTING PRESUMPTION THAT THE OR DER OF THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE A S ORDER OF THE CIT(A) FOR THE A.Y. 2003 - 04 WAS NOT CHALLENGED WHICH IS FACTUAL INCORRECT. IT IS FURTHER STATED THAT DEPARTMENT HAS NEVER ACCEPTED THE PROFIT ABOVE 40 % AS FURTHER APPEAL HAS BEEN FILED FOR THE A.Y. 2003 - 04 BEFORE THE TRIBUNAL. IT IS, THEREFORE, PLEADED THAT THE BASIS OF THE ORDER IS NOT APPRECIATING THE CORRECT FACT AND HENCE, THE ORDER MAY BE RECALLED. 2 M.A. NO. 35 /PN/201 2 , M/S. MANGALMURTI CONSTRUCTION, NASHIK 3. WE HAVE HEARD THE LD. DR AS WELL AS LEARNED CO UNSEL. WE HAVE ALSO PERUSED THE ORDER IN ITA NOS. 845 & 946/PN/2009 ORDER DATED 29 - 06 - 2011. WE FIND FORCE IN THE ARGUMENT OF THE DEPARTMENT. WE FIND THAT THE TRIBUNAL HAS MADE OBSERVATION THAT - ONE SIDE, THE CIT DID NOT RECOMMEND TH E APPEAL FOR THE A. Y. 2003 - 04 AND OTHER HAND, THE CIT IS REVIEWING THE ORDER OF THE ASSESSING OFFICER FOR THE A.YS. 2004 - 05 AND 2005 - 06 AND THE SAME IS NOT PROPER WHEN THE ROW HOUSES IN QUESTION BELONG TO THE SAME PROJECT. 4. THE TRIBUNAL HAS ALSO GIVEN THE FINDING THAT THE REVENUE HAS FINALLY ACCEPTED THE PROFITS ABOVE 40% IN THE CASE OF THE ASSESSEE FOR THE A.Y. 2003 - 04. IN OUR OPINION, THERE IS A MISTAKE OF FACTS IN THE ORDER . WE , THEREFORE , RECALL THE ORDER IN ITA NOS. 845 & 946/PN/2009 ORDER DATED 29 - 06 - 2011 FOR BO TH THE ASSESSMENT YEARS. BOTH THE APPEALS ARE FIXED FOR HEARING ON 19 - 09 - 2013. NO SEPARATE NOTICE IS ISSUED TO THE PARTIES AS DATE OF HEARING OF THE APPEALS. THE DATE OF HEARING IS PRONOUNCED IN THE OPEN COURT IN PRESENCE OF BOTH THE PARTIES. 5 . IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 23 - 08 - 2013 AFTER CONCLUSION OF THE HEARING. SD/ - SD/ - ( R . K . PAN DA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER RK /PS PUNE , DATED : 23 RD AUGUST, 20 1 3 COPY TO 1 DEPARTMENT 2 ASSESSEE 3 THE CIT - I, NASHIK 4 THE CIT, NASHIK 5 THE DR, ITAT, B BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL , PUNE