The ITO, Ward-5(2), RAJKOT-GUJARAT V. M/s. Kishan Transport, RAJKOT-GUJARAT

MA 35/RJT/2010

• Counselvise Citation: [2010] 124 COUNSELVISE.COM (IT) 7349 (ITAT-RAJKOT)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 13-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: J C RANPURA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) M.A. NO.35/RJT/2010 (ARISING OUT OF I.T.A. NOS.94 & 112/RJT/2007 (ASSESSMENT YEAR 2003-04) ITO, WD.5(2) VS M/S KISHEN TRANSPORT RAJKOT GANDHI CHAMBERS, GONDAL ROAD RAJKOT PAN : AACFK2539C (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI JC RANPURA REVENUE BY : SHRI AVINASH KUMAR O R D E R GARASIA : BY THIS MISCELLANEOUS APPLICATION THE REV ENUE STATES THAT THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL INASM UCH AS THAT THE TRIBUNAL WHILE DECIDING THE APPEAL FILED BY THE REVENUE IN ITA NO. 94/RJT/2007 THOUGH HELD THAT THE NET PROFIT IN THE CASE OF THE ASSESSEE IS TO BE ADOPTED AT 5% ON THE GROSS CONTRACT RECEIPT AS AGAINST 4.54% ADOPTED BY THE AS SESSEE, WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE AGAINST THE SUSTENANCE OF NET PROFIT AT 4.54% BY THE CIT(A) HELD THAT DEPRECIATION AND INTEREST ON CAPIT AL MAY BE ALLOWED FROM THE NET PROFIT ESTIMATED AT 5%. 2. THE LD.DR SUBMITTED THAT THE DECISION ULTRA VIRE S THE PROVISIONS OF SECTION 40(A)(V) OF THE ACT INASMUCH AS THE BOOK PROFIT IS THE CRITERIA FOR GIVING REMUNERATION TO THE PARTNERS AND NOT THE ESTIMATED PROFIT. HE, THEREFORE, PLEADED THAT THE ORDER DATED 09-03-2010 MAY BE RECALLED. T HE LD.AR ON THE OTHER HAND SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH COULD BE RECTIFIED WITHIN THE MEANING OF SECTION 25 4(2) OF THE ACT. IF THE TRIBUNAL CONTENTION OF THE REVENUE HAS TO BE UPHELD IT AMOUN TS TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL AND THE PROVISIONS OF SECTIO N 254(2) DO NOT AUTHORIZE FOR SUCH A COURSE OF ACTION. UPON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE IN MA NO.35/RJT/2010 2 AGREEMENT WITH THE LD.AR OF THE ASSESSEE THAT THE C OURSE OF ACTION SUGGESTED BY THE LD.DR AMOUNTS TO REVIEW OF THE DECISION OF THE TRIBUNAL. THE TRIBUNAL DOES NOT HAVE POWER TO REVIEW ITS OWN ORDER. IN THE CI RCUMSTANCES AND FAILING TO SEE ANY MERIT IN THE CONTENTIONS OF THE REVENUE, WE HAV E NECESSARILY DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31-12-2010 SD/- SD/- (A.L. GEHLOT) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 31 ST DECEMBER, 2010 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT(A)-IV, RAJKOT 4. THE CITL-II, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT