ITO, Kishangarh V. GIRDHAR GOPAL LAHOTI, Kishangarh

MA 39/JPR/2015

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5564 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: MANISH AGARWAL CA DHK
• Keywords: Period of limitation; Time period of passing order

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH HKKXPUN] YS[KK LNL; ,OA JH DQY HKKJR] U;KF;D LNL; DS LE{K BEFORE: SHRI BHAGCHAND, AM AND SHRI KUL BHARAT, JM M.A. NO. 39/JP/2015 ARISING OUT IF ITA NO. 187/JP/2011 & C.O. NO. 43/JP /2011 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06. INCOME TAX OFFICER, WARD-1, KISHANGARH. CUKE VS. SHRI GIRDHAR GOPAL LAHOTI, 16-B, VIRAT NAGAR, MADANGANJ KISHANGARH. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. ABHPL 7131 M VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA( ADDL.CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 25.08.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 04/10/2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM. THIS MISCELLANEOUS APPLICATION FILED BY THE REVENU E SEEKING RECALLING OF THE TRIBUNALS ORDER DATED 09.09.2011 PASSED IN ITA NO. 187/JP/2011 & C.O. NO. 43/JP/2011. 2. LD. D/R REITERATED THE SUBMISSIONS AS MADE IN TH E MISCELLANEOUS APPLICATION. THE SUBMISSIONS MADE IN THE APPLICATION ARE REPRODU CED AS UNDER:- IN THE ABOVE REFERRED APPEALS, THE HONBLE TRIBUNA L HAS TREATED THE AMOUNT OF DEPOSIT IN BANK AS TURNOVER OF THE ASSESS EE AND HAS DIRECTED TO APPLY A NET PROFIT RATE OF 10%, RELYING UPON THE DE CISION IN THE CASE OF SMT. ANITA CHOUDHARY IN ITA NO. 733/JP/2009 DATED 7/05/2 010. HOWEVER, WHILE GIVING DECISION IN THE CASE OF SHRI NAVAL KACHOLIA V/S DY.CIT IN ITA NO. 160/JP/2008, THE HONBLE ITAT HAS TAKEN DIFFERENT VIEW FOR IDENTICAL ISSUE AND THE APPEAL OF THE REVENUE HAS B EEN ALLOWED. 2 MA NO. 39/JP/2015. SHRI GIRDHAR GOPAL LAHOTI, KISHANGARH. AS THE MISTAKE IS COVERED U/S 254(2) OF THE IT ACT, 1961, THE HONBLE BENCH MAY KINDLY CONSIDERED THE ABOVE MISTAKE AND A MEND THE ORDER ACCORDINGLY ON THE FOLLOWING GROUNDS:- IN THE CASES OF SH. NAWAL KACHOLIA FOR THE AY 2005 -06 THE HONBLE ITAT VIDED THEIR ORDER NO. 1601/JP/2008 DATED 20.03 .2009 HAVE BEEN DISMISSED THE APPEAL OF THE ASSESSEE. THE ITAT HAV E TAKEN DIFFERENT VIEW IN THE SAME TYPE OF CASES. IT IS SUBMITTED THAT THIS APPLICATION IS WELL WITHI N THE LIMITATION PERIOD U/S 254(2) OF THE INCOME TAX ACT, 1961. 3. ON THE CONTRARY, LD. D/R OPPOSED THE SUBMISSIONS . 4. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT TRIBUNAL AT PAGE 4 OF ITS ORD ER HAS CONSIDERED THE OBJECTION OF THE REVENUE AS UNDER:- THESE FINDINGS REMAINED UNCONTROVERTED EXCEPT SAYI NG THAT ON SIMILAR FACTS IN THE CASE OF M/S NAWAL KACHOLIYA DIFFERENT VIEW H AS BEEN TAKEN BY THE TRIBUNAL. THE TRIBUNAL HAS PASSED MANY ORDERS ON S IMILAR FACTS AND THEY HAVE BEEN MENTIONED IN THE ORDER OF LD. CIT(A). TH E DECISION IN THE CASE OF SMT. ANITA CHAUDHARY IS A DECISION OF LATER DATE IN WHICH VARIOUS EARLIER ORDERS HAS BEEN TAKEN INTO CONSIDERATION AND THEN O NLY IT WAS HELD THAT THE DEPOSITS IN THE BANK ARE NOTHING BUT ARE ON ACCOUNT OF TURNOVER OF THE ASSESSEE. THEREFORE, IN VIEW OF RULE OF CONSISTENC Y, WE HOLD THAT LATER DECISION OF THE TRIBUNAL CONSIDERED BY THE LD. CIT( A) WAS RIGHTLY CONSIDERED. FOR THE SAKE OF FURTHER CLARIFICATION, THE DECISION IN THE CASE OF SMT. ANITA CHAUDHARY HAS BEEN FOLLOWED IN VARIOUS OTHER CASES ALSO. IN VIEW OF THESE FACTS AND CIRCUMSTANCES, WE CONFIRM THE ORDER OF LD . CIT(A) IN THIS RESPECT. 4.1 THEREFORE, IN OUR CONSIDERED VIEW, THE APPLICAT ION AS MADE BY THE REVENUE IS BEYOND THE SCOPE OF SECTION 254 OF THE ACT. IT WOU LD TANTAMOUNT TO REVIEW OF THE 3 MA NO. 39/JP/2015. SHRI GIRDHAR GOPAL LAHOTI, KISHANGARH. ORDER WHICH IS NOT PERMISSIBLE UNDER THE LAW. THIS MISCELLANEOUS APPLICATION AS PREFERRED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. ORDER IS PRONOUNCED IN THE OPEN COURT ON WEDNESDAY , THE 04 TH DAY OF OCTOBER 2017. SD/- SD/- ( HKKXPUN ( DQY HKKJR ) ( BHAGCHAND) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 04/10/2017. POOJA/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE INCOME TAX OFFICER, WARD-1, K ISHANGARH. 2. THE RESPONDENT SHRI GIRDHAR GOPAL LAHOTI, KIS HANGARH. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 39/JP/2015) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR