ANIL D AGRAWAL, MUMBAI V. INCOME TAX OFFICER 17(1)(1), MUMBAI

MA 436/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5510 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 20-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/ SHRI JOGINDER SINGH ( VP ) & G. MANJUNATHA ( A M) M.A. NO. 436/MUM/2018 ARISING OUT OF I.T.A. NO. 1809 /MUM /20 1 7 (ASSESSMENT YEAR 20 1 0 - 11 ) SHRI ANIL D. AGRAWAL A - 13, OMNITECH HOUSE KONDIVITA , MAROL MIDC ANDHERI (EAST) MUMBAI - 400 059. PAN : AERPA1868D VS. ITO, CIRCLE 17(1)(1) ROOM NO. 115 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI JAYANT R. BHATT DEPARTMENT BY SHRI SATISH CHANDRA RAJORE D ATE OF HEARING 16 . 1 1 . 201 8 DATE OF PRONOUNCEMENT 24 . 1 . 201 9 O R D E R PER G. MANJUNATHA (A M) : - THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF THE ORDER PASSED BY THE ITAT IN ITA NO. 1809/MUM/2017 DATED 21.2.2 018 FOR THE REASONS STATED IN HIS MISCELLANEOUS APPLICATION. 2. LEARNED AR FOR THE ASSESSEE AT THE TIME OF HEARING SUBMITTED THAT THE ITAT HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE WHEREIN CONFIRMED THE ADDITION MADE BY THE ASSESSING OFFICER TOWARDS ESTIMATION OF PROFIT ON CIRCUITOUS TRANSACTIONS @ 3% WHEREAS UNDER SIMILAR SET OF FACTS THE ITAT, MUMBAI D BENCH IN ASSESSEES RELATED CASE IN THE CASE OF READYMADE STEEL INDIA PVT. LTD. VS. DCIT IN ITA NO. 7426/MUM/2014 FOR A.Y. 2010 - 11 HAS ESTIMATED 1% NET PROF IT ON CIRCUITOUS TRANSACTIONS. THE L EARNED AR FURTHER SUBMITTED THAT HE HAD RELIED UPON THE COORDINATE BENCH DECISION AT THE TIME OF HEARING AND ALSO EXPLAINED THE BENCH THAT BOTH CASES ARE EMANATING OUT OF SURVEY CONDUCTED IN SRM GROUP CASES, WHE RE IT WAS NOTICED THAT THE COMPANIES ARE INVOLVED IN PROVIDING CIRCUITOUS TRANSACTIONS TO VARIOUS 2 COMPANIES AND FIRMS. ALTHOUGH THE BENCH HAS CONSIDERED THE J UDGEMENTS RELIED UPON BY THE ASSESSEE , BUT WHILE ARRIVING AT THE FINAL CONCLUSION AFFIRMED THE ADD ITION MADE BY THE ASSESSING OFFICER TOWARDS ESTIMATION OF 3% PROFIT ON CIRCUITOUS TRANSACTIONS. THEREFORE, HE SUBMITTED THAT THIS CONSTITUTE A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRES RECTIFICATION U/S. 254(2) OF THE I.T. ACT, 1961. IN THIS REGARD , HE RELIED UPON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS P. LTD. VS. CIT (295 ITR 466), WHEREIN IT HAS BEEN HELD THAT FAILURE TO CONSIDER DECISION OF THE COORDINATE BENCH WOULD BE A MISTAKE APPARENT FROM RECORD AND IT COULD BE CORRECTED BY THE TRIBUNAL. 3. LEARNED DR ON THE OTHER HAND, SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE ITAT AND WHAT LEARNED AR APPEARING FOR THE ASSESSEE SEEKS, IS TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE U/S. 254(2) OF THE I.T ACT, 1961. THEREFORE THERE IS NO REASON TO RECALL/MODIFY THE ORDER PASSED BY THE BENCH AND ACCORDINGLY MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY BE DISMISSED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVA ILABLE ON RECORD. FACTS WITH REGARD TO THE ASSESSEE, INVOLVED IN PROVIDING CIRCUITOUS TRANSACTIONS TO VARIOUS BENEFICIARIES ARE NOT IN DISPUTE. THE ITAT HAS CONSIDERED THE FACTS OF ASSESSEES CASE WHILE ARRIVING AT THE CONCLUSION THAT THERE IS NO ERROR IN THE FINDINGS RECORDED BY LOWER AUTHORITIES WHILE ARRIVING AT 3% PROFIT ON ALLEGED CIRCUITOUS TRANSACTIONS. THE ITAT HAS CONSIDERED THE DECISION CITED BY LEARNED AR OF ITAT MUMBAI D BENCH IN READYMADE STEEL INDIA PVT. LTD. VS. DCIT (IN ITA NO. 7426/MUM/20 14). HOWEVER, WHILE ARRIVING AT THE FINAL CONCLUSION BY AN INADVERTENT ERROR AFFIRMED FINDINGS OF LEARNED CIT(A) IN UPHOLDING 3% PROFIT ESTIMATED BY THE ASSESSING OFFICER ON TOTAL CIRCUITOUS TRANSACTIONS. FURTHER, WE FIND THAT THE COORDINATE BENCH HAS CONS IDERED IDENTICAL FACTS IN THE LIGHT OF SURVEY CONDUCTED IN SRM GROUP CASES AND AFTER CONSIDERING RELEVANT FACTS, HAS ESTIMATED 1% PROFIT ON CIRCUITOUS 3 TRANSACTIONS. THE ASSESSEE BEING ONE OF THE ASSOCIATED CONCERNS OF READYMADE STEEL INDIA P. LTD. AND PAR T OF THE SURVEY CONDUCTED IN SRM GROUP CASE, THE BENCH OUGHT TO HAVE CONSIDERED FACTS INVOLVED IN THE CASE OF READYMADE STEEL INDIA P. LTD. TO ARRIVE AT THE CONCLUSION IN THE PRESENT CASE. BUT IN THE FINAL CONCLUSION BY INADVERTENT ERROR ADOPTED NET PROFIT ESTIMATED BY THE ASSESSING OFFICER. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THERE IS AN ERROR IN THE ORDER BY THE TRIBUNAL WHICH NEEDS TO BE RECTIFIED U/S. 254(2) OF THE ACT, 1961. ACCORDINGLY, WE MODIFY THE FINDINGS RECORDED IN PARA 7 OF THE ORD ER DATED 21.2.2018 AND DIRECT THE ASSESSING OFFICER TO ESTIMATE 1% NET PROFIT ON TOTAL CIRCUITOUS TRANSACTIONS AS AGAINST 3% PROFIT ESTIMATED AND AFFIRMED BY LEARNED CIT(A). ACCORDINGLY, DIRECTION OF THE TRIBUNAL IN PARA 7 OF THE ORDER IS MODIFIED IN TERMS OF OUR OBSERVATION INDICATED HEREIN ABOVE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 24 . 1 .201 9 . SD/ - SD/ - (JOGINDER SINGH ) ( G. MANJUNATHA ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED : 24 / 1 / 20 1 9 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI