Shri Gouri Shankar Singhal, SRIGANGANAGAR V. ITO, SRIGANGANAGAR

MA 47/JODH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2350 (ITAT-JODHPUR)
• Duration Of Justice: 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 22-08-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: JAI SINGH
• Keywords: Rejection of books of accounts
• Section: 145

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. MA NO.4 7 /JODH/2014 (ARISING OUT OF ITA NO. 319 /JODH/2013) ( ASSESSMENT YEAR : 200 9 - 1 0 ) SHRI GOURI SHANKAR SINGHAL, PROP. M/S. AMIT DISTRIBUTORS, 64, NEW CLOTH MARKET, SRIGANGANAGAR VS. ITO, WARD - 1, SRIGANGANAGAR PAN NO. AETPS 0047 N (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURESH OJHA . DEPARTMENT BY : SHRI JAI SINGH - D.R. DATE OF HEARING : 26 - 0 8 - 2014 DATE OF PRONOUNCEMENT : 09 - 09 - 2014 O R D E R PER N.K. SAINI, A.M. THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ARISING OUT OF THE ORDER DATED 1 3 - 12 - 2013 IN ITA NO. 319 /JODH/2013 & C.O. NO. 28/JODH /2013 FOR THE A.Y. 2009 - 1 0. 2 2 IN THIS MISCELLANEOUS APPLICATION , ASSESSEE HAS SUBMITTED THAT THE ITAT AT PAGE NO. 12 OF THE AFORESAID ORDER DATED 13/12/2013 HAS OBSERVED AS UNDER: - CIT(A) DIRECTED THE ASSESSING AUTHORITY TO APPLY GP RATE ON THE BASIS OF RATE OF IMMEDIATELY TWO ASSESSMENT YEARS AND MAXIMUM RATE OF 7.19% DECLARED BY THE ASSESSEE AND ACCEPTED BY THE DEPARTMENT IN THE ASSESSMENT YEAR 2007 - 08 WAS DIRECTED TO BE APPLIED. IN OUR OPINION THE VIEW TAKEN BY THE CIT(A) WAS JUSTIFIED, SO IT DOES NOT REQUIRE ANY INTERFERENCE. 3. THE ASSESSEE HAS SUBMITTED THAT THE LD. CIT(A) HAS RELIED UPON THE ORDER OF THE SPECIAL BENCH IN THE CASE OF M/S. ALLIED CONSTRUCTION CO. REPORTED IN 105 ITD PAGE 1 , WHEREIN IT HAS BEEN HELD THAT PAST HISTORY SHOULD BE ACCEPTED AND THE RATE OF PREVIOUS YEAR SHOULD BE CONSIDERED ONLY AS REASONABLE. THE ASSESSEE HAS STATED THAT THE PAST HISTORY HAS NOT BEEN FOLLOWED IN THIS CASE THEREFORE, THERE WAS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRES RECTIFICATION U/S. 254(2) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) . 4. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE MISC. APPLICATION DATED 15/04/2014 AND SUBMITTED THAT IN THE IMMEDIATELY PRECEDING YEAR, THE GROSS PROFIT RATE DECLARED WAS 6.21% AND IN THE YEAR EA R LIER TO THE P RECEDING YEAR I.E. A.Y. 3 2007 - 08 , THE GROSS PROFIT RATE DECLARED WAS 7.19%. THEREFORE, THE GROSS PROFIT RATE OF 6.21% WAS ACCEPTED IN THE IMMEDIATELY PRECEDING YEAR , THE SAME SHOULD HAVE BEEN APPLIED FOR THE YEAR UNDER CONSIDERATION INSTEAD OF 7.19%. 5. IN HIS RIVAL SUBMISSIONS, LEARNED D.R. SUBMITTED THAT BY FILING THIS MISC. APPLICATION, THE ASSESSEE WANTS TO GET THE ORDER DATED 13/12/2013 REVIEWED , WHICH IS NOT PERMISSIBLE U/S. 254(2) OF THE ACT. IT WAS FURTHER STATED THAT THE LD. CIT(A) AS WELL AS ITAT HAS CONSIDERED THE PAST HISTORY OF THE ASSESSEES CASE AND SINCE THE GROSS PROFIT RATE DECLARED AND ACCEPTED BY THE DEPARTMENT IN THE A.Y. 2007 - 08 WAS NEAR TO THE FACTS INVOLVED IN THE YEAR UNDER CONSIDERATION , THEREFORE, THE LD. CIT(A) DIRECTED THE A SSESSING OFFICER TO APPLY GROSS PROFIT RATE OF 7.19% INSTEAD OF 17.22% DIRECTED BY THE ASSESSING OFFICER TO BE APPLIED AND 5.98% DECLARED BY THE ASSESSEE. THE SAID VIEW EXPRESSED BY THE LD. CIT(A) HAS BEEN UPHELD BY THE ITAT, SO THERE IS NO MISTAKE APPARENT FROM THE RECORD AND A JUST VIEW HAS BEEN TAKEN BY THE ITAT WHICH CANNOT BE REVIEWED U/S. 254(2) OF THE ACT. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT 4 CASE, IT IS AN ADMITTED FACT THAT THE ASSESSEE DECLARED THE GROSS PROFIT RATE OF 5.98% FOR THE YEAR UNDER CONSIDER ATION AND THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNTS AND AFTER REJECTING THE BOOKS OF ACCOUNTS U/S. 145(3) OF THE ACT, THE ASSESSING OFFICER APPLIED GROSS PROFIT RATE OF 17.22% INSTEAD OF 5.98% DECLARED BY THE ASSESSEE . AGAINST THE SAID ORDER, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT(A), WHO DIRECTED THE ASSESSING OFFICER AFTER CONSIDERING THE PAST HISTORY OF THE ASSESSEES CASE TO APPLY GROSS PROFIT RATE OF 7.19% DECLARED BY THE ASSESSEE , WHICH WAS ACCEPTED BY THE DEPARTMENT FOR THE A.Y. 2007 - 08 , S INCE THE FACTS OF THE SAID YEAR WERE NEAR TO THE FACTS FOR THE YEAR UNDER CONSIDERATION. AGAINST THE SAID ACTION OF THE LD. CIT(A), THE DEPARTMENT PREFERRED AN APPEAL AND THE ASSESSEE IN ITS CROSS OBJECTION ALTHOUGH CHALLENGED THE REJECTION OF BOOKS OF ACCOUNTS U/S. 145 OF THE ACT, BUT DID NOT CHALLENGE THE ACTION OF THE LD. CIT(A) IN DIRECTING THE ASSESSING OFFICER TO APPLY GROSS PROFIT RATE OF 7.19% CONSIDERING THE PAST HISTORY. THER EFORE, THERE IS NOT MISTAKE IN THE ORDER OF THE TRIBUNAL BECAUSE THE APPEAL PREFERRED BY THE DEPARTMENT WAS DISMISSED AS SUCH THERE SHOULD NOT HAVE BEEN ANY GRIEVANCE TO THE ASSESSEE. IT IS WELL SETTLED THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT ONLY MISTAKE APPARENT FROM THE RECORD CAN BE RECTIFIED AND NO POWER HAS BEEN GIVEN TO THE ITAT TO REVIEW THE ORDER. 5 IN THE PRESENT CASE, THE ITAT VIDE ORDER DATED 13/12/2013 HAD CONFIRMED THE VIEW TAKEN BY THE LD. CIT(A) BY OBSERVING THAT GROSS PROFIT RATE OF 7.19% WAS MORE REASONABLE LOOKING TO THE FACTS AND THE PAST HISTORY OF THE ASSESSEES CASE . ACCORDINGLY, THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER TO APPLY GROSS PROFIT RATE OF 7.19% AND THAT VIEW EXPRESSED BY THE LD. CIT(A) HAS BEEN UPHELD BY THE ITAT . WE, THEREFORE, ARE OF THE VIEW THAT THERE IS NO MERIT IN THIS MISC. APPLICATION FILED BY THE ASSESSEE . 7 IN THE RESULT, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED . (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 - 09 - 2014.) S D/ - SD/ - (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DA TED: 09 TH SEPTEMBER, 2014 VR/ - COPY TO: - 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE SR. PRIVATE SECRETARY, ITAT, JODHPUR .