K.D. KOTHARI AND CO., V. ASST CIT,

MA 41/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0614 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 30-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: B V JHAVERI

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , ! , ' ## $ ! , % BEFORE SHRI R.S.SYAL, AM AND SHRI SANJAY GARG, JM && !' ./ MA NO.41/MUM/2013 ( )*+ , / ARISING OUT OF ITA NO.2286/MUM/2010) ( $' - $' - $' - $' - / / / / ASST.YEAR 2007-2008) M/S.K.D.KOTHARI & CO. 1215, PRASAD CHAMBERS, OPERA HOUSE MUMBAI 400 004. PAN : AAAFK1373N. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 16(1) MUMBAI. ( ! / // / APPLICANT) ' ' ' ' / VS. ( ./01/ RESPONDENT) ! 2 22 2 3 3 3 3 / APPLICANT BY : SHRI B.V.JHAVERI ./01 2 3 2 3 2 3 2 3 / RESPONDENT BY : --- NONE --- ' 2 + / / / / DATE OF HEARING : 05.07.2013. 45- 2 + / DATE OF PRONOUNCEMENT : 05.07.2013. !6 !6 !6 !6 / / / / O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FO R THE RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 25 TH APRIL, 2012 PASSED IN ITA NO.2286/MUM/2010 FOR THE CAPTIONED AS SESSMENT YEAR. 2. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT GROUND NO.5 TAKEN BY THE ASSESSEE IN ITS APPEAL REMAINED TO BE DISPOSED, BY WHICH THE ASSESSEE HAD CHALLENGED THE SUSTENANCE OF ADDIT ION AT THE RATE OF 10% IN RESPECT OF TRANSACTIONS WITH MR. A. DARSHAN. THERE IS NO MA NO.41/MUM/2013 M/S.K.D.KOTHARI & CO. 2 APPEARANCE FROM THE SIDE OF THE DEPARTMENT. WE ARE, THEREFORE, PROCEEDING TO DISPOSE OFF THE MISCELLANEOUS APPLICA TION EX PARTE QUA THE REVENUE. 3. IT IS NOTICED THAT THE ASSESSEE WAS FOUND TO BE ENGAGED IN CARRYING ON BUSINESS OUTSIDE ITS BOOKS OF ACCOUNT. THERE WERE TWO TYPES OF TRANSACTIONS OF UNRECORDED BUSINESS. THE F IRST TOTALED AT ` 18.37 CRORE AS PER TABLE ON PAGE 4 OF THE ASSESSMEN T ORDER. THEN THERE IS ANOTHER SET OF TRANSACTION TOTALING ` 25.87 LAKH WITH MR. A. DARSHAN. THE ASSESSING OFFICER APPLIED 20% PROFIT R ATE ON BOTH THE SETS OF TRANSACTIONS THEREBY MAKING ADDITION OF ` 3.67 CRORE AND ` 5.37 LAKH RESPECTIVELY. THE LEARNED CIT(A) REDUCED THE R ATE OF PROFIT TO 10% IN RESPECT OF BOTH THE SETS OF TRANSACTIONS. TH E ASSESSEE CHALLENGED THE SUSTENANCE OF ADDITION IN RESPECT OF FIRST SET OF TRANSACTIONS THROUGH GROUND NOS.1 TO 4 AND SECOND S ET OF TRANSACTIONS THROUGH GROUND NO.5. THE TRIBUNAL, WHILE PASSING TH E ORDER U/S 254(1), HELD THAT THE CORRECT PROFIT PERCENTAGE TO BE APPLIED IS 3% IN CONFORMITY WITH THE VIEW TAKEN BY THE TRIBUNAL IN T HE IMMEDIATELY PRECEDING YEAR. THE SAID DECISION OF 3% PROFIT RATE THOUGH HAS BEEN REFERRED TO ALL THE GROUNDS OF APPEAL IN COMMON, BU T SPECIFICALLY DEALT WITH ONLY THE FIRST SET OF TRANSACTIONS. WE, THEREF ORE, AMEND THE ORDER BY HOLDING THAT 3% PROFIT RATE SHOULD BE APPLIED IN RESPECT OF SECOND SET OF TRANSACTIONS ALSO TOTALING ` 26.87 LAKH AS AGAINST 20% APPLIED BY THE A.O. AND REDUCED TO 10% BY THE LD. CIT(A). T HE IMPUGNED ORDER IS ACCORDINGLY RECTIFIED TO THIS EXTENT. MA NO.41/MUM/2013 M/S.K.D.KOTHARI & CO. 3 4. 7 +8 ! 2 && !' + 2 '+ 9: ; IN THE RESULT, THE MISCELLANEOUS APPLICATION IS ALLOWED, PRO TANTO . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH JULY , 2013. !6 2 45- &-+ !6 2 .$+=& >&-+ !6 2 .$+=& >&-+ !6 2 .$+=& >&-+/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. ? () / THE CIT(A) - XVI, MUMBAI. 4. ? / CIT 5. &B# .$+$' , , / DR, ITAT, MUMBAI 6. #C D / GUARD FILE. !6' !6' !6' !6' / BY ORDER, /&+ .$+ //TRUE COPY// ) ) ) )/ // /9 ' 9 ' 9 ' 9 ' ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI