DEPUTY COMMISSIONER OF INCOME TAX 3, THANE V. CITYBASE MULTITRADE PFIVATE LIMITED, THANE

MA 351/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2682 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 12-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI BEFORE SHRI MAHAVIR SINGH , HON'BLE JUDICIAL MEMBERAND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER M.A.NO. 351 / MUM /2017 [ ARISING OUT OF ITA.NO. 4131/MUM/2016 (A. Y : 2010 - 11 ) ] PR .C.I.T, CIRCLE 3 6 TH FLOOR, ASHAR I.T PARK, A WING, ROAD NO.16Z, WAGLE INDUSTRIAL ESTATE, THANE (W) - 400 604 V. M/S. CITY BASE MULTITRADE PVT. LTD C - 204, VISHAL APARTMENT, TULINJ, TAKI ROAD, NALLASOPARA (E) , DIST. PALG HAR - 401 209 PAN NO: AADCC4376R (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. AASIFA KHAN REVENUE BY : SHRI S.K. BEPARI DATE OF HEARING : 26.10 .2018 DATE OF PRONOUNCEMENT : 01 .11 .2018 O R D E R PER RAJESH KUMAR (A M) 1. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE SEEKING TO RECALL THE ORDER OF THE TRIBUNAL PASSED IN ITA.NO. 4131 /MUM/2016 DATED 21.10.2016 FOR THE ASSESSMENT YEAR 2010 - 11. 2. LD. DR SUBMITTED THAT THE MISCELLANEOUS APPLICATION HAS BEEN FI LED PRIMARILY ON THE GROUND THAT THE HONBLE TRIBUNAL HAD REDUCED THE G ROSS 2 M.A.NO. 351/MUM/2017 M/S. CITY BASE MULTITRADE PVT. LTD P ROFIT TO 0.15% ON THE ENTIRE TURNOVER OF .405.03 CRORES AS AGAINST THE G ROSS P ROFIT ESTIMATED BY THE ASSESSING OFFICER @5% AS REDUCED BY THE LD.CIT(A) @1.25% ON BHIWANDI PARTIES AND @ 1% ON THE OTHER PARTIES. LD. DR SUBMITTED THAT SINCE THE G ROSS P ROFIT ESTIMATED BY THE TRIBUNAL IS TOO LOW AND THEREFORE THE SAME APPEARS TO BE WRONG AND CONTRARY TO THE FACTS AND CIRCUMSTANCES. IN VIEW OF THE SAID G.P. BEING VERY LOW THE ORDER OF THE TRIBUNAL IS APPARENTLY WRONG AND MAY BE RECALLED . 3. THE LD. AR ON THE OTHER HAND STRONGLY OPPOSED THE ARGUMENTS OF THE LD. DR BY SUBMITTING THAT THE TRIBUNAL HAS APPLIED G ROSS P ROFIT AT 0.15% TO THE ENTI RE TURNOVER OF .405.03 CRORES ON THE BASIS OF ASSESSEES OWN CASE IN ASSESSMENT YEAR 2011 - 12 WHEREIN THIS G ROSS P ROFIT HAS BEEN ESTIMATE @ 0.10% HAS BEEN ACCEPTED BY THE AO. MOREOVER, THE TRIBUNAL ALSO RECORDED A FINDING THAT THE DIRECTOR OF THE COMPANY I N THE CASE OF GROUP CONCERN ADMITTED THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF SUCH BUSINESS ON COMMISSION BASIS AND THE RATE OF COMMISSION IS 0.10% BEFORE THE SALES TAX AUTHORITIES . THUS , THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION IN THE MATTER AF TER TAKING INTO ACCOUNT ALL THE FACTS OF THE CASE. THE LD.AR SUBMITTED THAT , IN VIEW OF THE FACT THAT THERE I S NO ERROR APPARENT IN THE ORDER AND THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE AND SHOULD BE DISMISSED. 3 M.A.NO. 351/MUM/2017 M/S. CITY BASE MULTITRADE PVT. LTD 4. AFTER HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSING THE ORDER, WE FIND THAT THE TRIBUNAL HAS TAKEN A CONSIDERED AND CONSCIOUS DECISION AFTER CONSIDERING THE FACTS OF THE CASE IN DIRECTING APPL ICATION OF THE G ROSS P ROFIT @0.15% ON THE ENTIRE TURNOVER BASED UPON THE DECISION OF THE AO IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2011 - 12, WHEREIN THE AO HAS ACCEPTED 0.10% GROSS PROFIT ON THE NON - BHIWANDI SALES AND DIRECTOR OF THE ASSESSEES COMPANIES HAS ALSO ADMITTED GROSS MARGIN @ 0.10% BEFORE THE SALES TAX AUTHORITIES. IN OUR OPINION THERE IS NO APPARENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL AND THEREFORE THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE AND ACCORDINGLY DISMISSED AS RECALLING OF ORDER IN SUCH CIRCUMSTANCES WOULD AMOUNT TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE INCOME - TAX ACT, 1961. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 01 ST NOVEMBER , 2018 . SD/ - SD/ - ( MAHAVIR SINGH ) ( RAJESH KUMAR ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI / DATED 01 / 11 / 201 8 GIRIDHAR , S R. PS 4 M.A.NO. 351/MUM/2017 M/S. CITY BASE MULTITRADE PVT. LTD COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM