JITENDRA KUMAR AGARWAL, Jaipur V. ACIT, Jaipur

MA 59/JPR/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6933 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 14-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P R MEENA
• Assessee Lawyers: S L PODDAR; ISHA KANOONGOADV

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 FOT; IKWY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ MA NO. 59/JP/2018 (ARISING OUT OF ITA NO. 322/JP/2017) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2013-14 SHRI JITENDRA KUMAR AGARWAL, 1756, TELIPADA, SMS HIGHWAY, JAIPUR CUKE VS. ACIT, CIRCLE-1, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AEDPA0732L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI S. L. PODDAR & SHRI ISHA KANOONGO(ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI P. R. MEENA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 25/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 06/07/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER OF COORDINATE BENCH IN ITA NO. 32 2/JP/2017 DATED 28/03/2018. IN HIS APPLICATION, THE ASSESSEE HAS SU BMITTED AS UNDER: 1. THE ABOVE-MENTIONED APPEAL HAVE BEEN DECIDED BY THE HONBLE BENCH JAIPUR VIDE THEIR ORDER DATED 28.03.2 018 PARA 7 OF ORDER OF HONBLE ITAT IS AS UNDER:- M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 2 7. THE LEARNED AR FURTHER SUBMITTED THAT NOTWITHST ANDING THE SUBMISSIONS MADE ABOVE WHEREIN THE CASE OF THE ASSE SSEE IS THAT THE 24 CARAT GOLD WEIGHING 8538.46 GRAMS STOOD ACCOUNTE D FOR IN THE ACCOUNT OF 22 GOLD ORNAMENTS, THE ASSESSEE MAKES AN ALTERNATIVE PLEA BEFORE THE HON'BLE ITAT FOR KIND CONSIDERATION. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE 24 CARAT GOLD WEIGHI NG 8538.46 GRAMS IS OUT OF ACCOUNTED PURCHASES. THE LEARNED ASSESSING O FFICER AND THE LEARNED CIT(A) HAVE MADE ADDITION ON THE GROUND THA T SAME WAS NOT INCLUDED IN THE CLOSING STOCK. THE PLEA OF THE ASSE SSEE IS THAT THE 24 CARAT GOLD WEIGHING 8538.46 GRAMS STOOD SOLD AND TH E ASSESSEE FAILED TO ACCOUNT FOR SUCH SALE IN THE BOOKS OF ACCOUNTS. IN VIEW OF THIS, SUCH SALES WHICH SHOULD BE OF THE VALUE OF ADDITION SUST AINED BY THE LEARNED CIT(A) I.E. 2,22,62,313/- BE TREATED AS UNACCOUNTED SALES AND NP RATE DISCLOSED BY THE ASSESSEE IN THE YEAR AT 4.74% MAY KINDLY BE APPLIED WHICH RESULTS IN TRADING ADDITION OF RS.10,55,2331. THIS SUBMISSION OF THE ASSESSEE IS OVER AND ABOVE THE SUBMISSIONS MADE BEFORE THE LEARNED CIT(A) AND IS BEING MADE TO GIVE A STOP TO LITIGATION AND THE TRIBUNAL MAY KINDLY CONSIDER THE ALTERNATIVE PLEA O F THE ASSESSEE SYMPATHETICALLY.' IN THE ABOVE PARA THE ASSESSEE HAS MADE A REQUEST I N ALTERNATIVE SUBMISSION TO APPLY THE GP RATE OF YEAR UNDER CONSI DERATION TO GIVE A STOP TO LITIGATION AND NOT ACCEPTED THE ALLEGATION MADE BY THE LEARNED ASSESSING OFFICER. WHEREAS THE HON'BLE BENCH HAS GI VEN DIRECTION TO APPLY THE GP RATE OF LAST FIVE YEARS WITHOUT EXAMIN ING THE FACT THAT THE LAST FIVE YEARS ARE NOT COMPARABLE TO THIS YEAR. BE CAUSE IN LAST FIVE YEARS THE TURNOVER WAS ON VERY LOWER SIDE AND GP RA TE WAS AT VERY HIGHER SIDE. THE LAST FIVE YEARS GP RATE CHART IS A S UNDER: M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 3 A.Y. TURNOVER GP GP (%) 2013-14 50713609.00 4014510. 7.92% 2012-13 23536310.00 6000372. 25.49% 2011-12 35206136.00 5311647. 15.09% 2010-11 24059513.00 3673994. 15.27% 2009-10 14009495.00 3470786. 24.78% AVERAGE G P 147525063.00 2247130 15.23% 2. THE HONBLE BENCH HAS OBSERVER ON PAGE 14 OF THE ORDER IN THE MIDDLE OF THE ORDER THAT WE FIND THAT THE TAX AUDIT REPORT HAS BEEN SIGNED ON 29.08.2013 AND THE JOB WORK RETURN VOUCHE RS ISSUED BY THE JOB WORKERS AS CLAIMED BY THE LEARNED AR ARE DATED 23.03.2013 AND 31.03.2013 RESPECTIVELY. IF THESE STOCK RETURN TRAN SACTIONS DO EXIST AND WERE BROUGHT TO THE NOTICE OF THE AUDITORS, WE FIND THAT THERE IS NO WAY THE AUDITORS WOULD NOT HAVE INSISTED ON REPORTING T HESE TRANSACTIONS IN THE BOOKS OF ACCOUNTS FOR THE YEAR UNDER CONSIDERAT ION'. HERE THE HON'BLE BENCH HAS NOT CONSIDERED THAT THE ASSESSEE HAS PAID LABOUR CHARGES/MAKING CHARGES FOR MANUFACTURING OF JEWELLE RY AND TDS WAS DEDUCTED OUT OF MAKING CHARGES TDS WAS DULY DEDUCTE D AND DEPOSITED IN GOVERNMENT ACCOUNT IN DUE TIME AND TDS RETURN WA S ALSO FILED IN DUE TIME. ALL THE PAPERS ARE PLACED ON PAPER BOOK PAGE NO. 28 TO 33 AND PAGE NO. 34 TO 42 WERE NOT CONSIDERED BEFORE MAKING THESE OBSERVATION. THE MAKING CHARGES WERE ALSO PAID BY C ROSSED ACCOUNT PAYEE CHEQUES ON 11.04.2014. THESE VITAL EVIDENCES WERE ALSO IGNORED BEFORE REACHING THE CONCLUSION THAT THIS 22 CARAT G OLD STOCK WAS NOT ACCOUNTED FOR IN THE BOOKS OF ACCOUNTS WHICH IS PAT ENTLY WRONG. 3. THE LEARNED CIT(A) HAS REJECTED THE BOOKS OF ACC OUNTS WITHOUT GIVING OPPORTUNITY TO THE ASSESSEE AND WITH OUT CONSIDERING THE M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 4 OVERALL FACTS SO NO PROVISIONS OF SECTION 145(3) CA N BE INVOKED IN THIS CASE. 4. THEREFORE THE APPLICATION OF LAST FIVE YEARS GP RATE IS TOTALLY IRRELEVANT AND UNJUSTIFIED AND WITHOUT ANY BASIS. THEREFORE YOUR HONOUR IS REQUESTED TO CONSIDER THE ABOVE SUBMISSION SYMPATHETICALLY AND ALLOW THE APPLICATIO N. 2. THE LD DR IS HEARD WHO HAS OPPOSED THE PRESENT MISC. APPLICATION. THE LD DR SUBMITTED THAT ONCE THE BOO KS OF ACCOUNTS HAVE BEEN HELD TO BE REJECTED, A FAIR ESTIMATE OF INCOME IS REQUIRED TO BE MADE. IN THIS REGARD, HE REFERRED TO THE FINDINGS O F THE COORDINATE BENCH CONTAINED AT PARA 10 OF ITS ORDER AND SUBMITT ED THAT THE COORDINATE BENCH HAS REFERRED TO THE LEGAL PROPOSIT ION LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT THAT PAST HISTORY OF T HE ASSESSEE IS THE BEST GUIDE TO ESTIMATE THE PROFITS AND FOR THAT PUR POSES, THE LAST FIVE YEARS AVERAGE PROFIT WOULD GIVE A REASONABLE AND RE ALISTIC BASIS AND HAS ACCORDINGLY DIRECTED TO APPLY THE SAME IN THE INSTA NT CASE. IT WAS SUBMITTED BY THE LD DR THAT THE CONTENTIONS OF THE LD AR REGARDING APPLYING N.P RATE FOR THE YEAR UNDER CONSIDERATION WAS CONSIDERED AND THEREAFTER, THE COORDINATE BENCH HAS GIVEN A SPECIF IC FINDING TO APPLY THE AVERAGE OF LAST FIVE YEAR G.P RATE AND THEREFOR E, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD. 3. REGARDING THE SECOND CONTENTION OF THE ASSESSEE THAT THE COORDINATE BENCH WHILE PASSING THE IMPUNGED ORDER H AS NOT CONSIDERED THAT THE ASSESSEE HAS PAID LABOUR CHARGES/MAKING CH ARGES FOR MANUFACTURING OF JEWELLERY AND TDS WAS DEDUCTED OUT OF MAKING CHARGES TDS WAS DULY DEDUCTED AND DEPOSITED IN GOVE RNMENT ACCOUNT M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 5 IN DUE TIME AND TDS RETURN WAS ALSO FILED IN DUE TI ME AND THE PAPERS ARE PLACED ON PAPER BOOK PAGE NO. 28 TO 33 AND PAGE NO. 34 TO 42 WHICH WERE NOT CONSIDERED BEFORE MAKING THESE OBSER VATION, THE LD DR DRAWN OUR REFERENCE TO THE FINDINGS OF THE COORDINA TE BENCH AT PARA 9 OF ITS ORDER WHEREIN THE COORDINATE BENCH HAS DULY CONSIDERED THESE CONTENTIONS AND HELD THAT THESE ARE FRESH FACTUAL C ONTENTIONS WHICH ARE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND T HE SAME WERE NOT MADE BEFORE THE LOWER AUTHORITIES. IT WAS FURTHER HELD BY THE COORDINATE BENCH THAT IF THESE STOCK RETURN TRANSAC TIONS DO EXIST AND WERE BROUGHT TO THE NOTICE OF THE AUDITORS, THERE W AS NO CASE WHERE THE AUDITORS WOULD NOT HAVE INSISTED ON REPORTING THESE TRANSACTIONS. 4. IT WAS ACCORDINGLY SUBMITTED BY THE LD DR THAT A CCEPTANCE OF THE SUBJECT APPLICATION WOULD AMOUNT TO A REVIEW OF THE ORDER PASSED BY THE COORDINATE BENCH AND THE SAME IS NOT PERMISSIBL E AND BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT. 5. WE REFER TO THE RELEVANT FINDINGS OF THE COORDI NATE BENCH WHICH ARE CONTAINED AT PARA 9 & 10 OF ITS ORDER WHICH ARE REPRODUCED AS UNDER: 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PURUSE D THE MATERIAL AVAILABLE ON RECORD AND IN PARTICULAR, WE HAVE EXAM INED THE FINANCIAL STATEMENTS OF THE ASSESSEE, THE TAX AUDIT REPORT, S TOCK REGISTER STATEMENTS FOR 24CT GOLD AND 24CT GOLD, MANUFACTURI NG STATEMENT AND ALLOY STATEMENT FOR THE PERIOD UNDER CONSIDERATION. THE LD CIT(A) HAS RETURNED A FINDING THAT ON 21.03.2013, 24 CT GOLD W EIGHING 3025, 3513.46 GM, 3513.46 GM AND 2000 GM WAS ISSUED FOR MANUFACTURING M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 6 BUT THE MANUFACTURED 22CT GOLD ORNAMENTS WERE NOT R ECEIVED DURING THE F.Y AND CONSEQUENTLY, NEITHER THE BALANCE OF 24 CT GOLD WAS REDUCED ON ACCOUNT OF 8538.46 GM OF 24CT GOLD ISSUED FOR MA NUFACTURING NOR WAS THE STOCK OF 22CT GOLD ORNAMENTS INCREASED. IN THIS REGARD, THE LD AR DURING THE COURSE OF HEARING HAS SUBMITTED THAT 24 CT GOLD WEIGHING 8538.46 GMS WAS SENT TO JOB WORKERS FOR MANUFACTURE OF GOLD ORNAMENTS AND THE SAME WERE RECEIVED BACK FROM THE JOB WORKERS DURING THE YEAR ITSELF. IN SUPPORT, OUR REFERENCE W AS DRAWN TO JOB WORKER ISSUE AND RETURN VOUCHERS AND TDS STATEMENTS REFLECTING TDS DONE ON SUCH JOB WORK MAKING CHARGES. IT WAS SUBMI TTED THAT THE AFORESAID 24 CARAT GOLD WAS THUS ACTUALLY TRANSFERR ED TO MANUFACTURING ACCOUNT/22 CARAT GOLD ORNAMENT ACCOUNT BUT THE SAME WAS INADVERTENTLY NOT ACCOUNTED IN THE BOOKS OF ACCOUNT BY THE AUDITORS. WE ARE HOWEVER UNABLE TO ACCEPT THE SAID CONTENTION S SO RAISED BY THE LD AR. FIRSTLY, THESE ARE FRESH FACTUAL ASSERTIONS WHICH ARE RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL AND THE SAME WERE NO T MADE BEFORE OR BROUGHT TO THE NOTICE OF THE LOWER AUTHORITIES. IT IS THE ASSESSEE WHO HAS TO ACCOUNT FOR THESE TRANSACTIONS FOR SENDING 2 4CT GOLD FOR JOB WORK (MAKING GOLD ORNAMENTS) AND RETURN THEREOF ASSUMING THESE RETURN TRANSACTIONS HAVE HAPPENED DURING THE FINANCIAL YEA R AS CLAIMED BY THE LD AR. THE ROLE OF THE AUDITOR IS TO REVIEW THE CO RRECTNESS OF THESE TRANSACTIONS AS ACTUALLY HAPPENED AND REPORTED AS P ER WELL ACCEPTED ACCOUNTING STANDARDS. IF THE ASSESSEE HAS FAILED T O ACCOUNT FOR THESE TRANSACTIONS IN THE BOOKS OF ACCOUNTS AND THERE IS NOTHING ON RECORD WHICH RAISES ANY DOUBTS OR SUSPICION IN THE MINDS O F THE AUDITORS, THEN IN SUCH CIRCUMSTANCES, BLAMING THE AUDITORS SOLELY FOR WRONG REPORTING IN THE TAX AUDIT REPORT MAY NOT BE CORRECT. FURTHER , WE FIND THAT THE TAX AUDIT REPORT HAS BEEN SIGNED ON 29.08.2013 AND THE JOB WORK RETURN M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 7 VOUCHERS ISSUED BY THE JOB WORKERS AS CLAIMED BY TH E LD AR ARE DATED 23.03.2013 AND 31.03.2013 RESPECTIVELY. IF THESE S TOCK RETURN TRANSACTIONS DO EXIST AND WERE BROUGHT TO THE NOTIC E OF THE AUDITORS, WE FIND THAT THERE IS NO WAY THE AUDITORS WOULD NOT HA VE INSISTED ON REPORTING THESE TRANSACTIONS IN THE BOOKS OF ACCOUN TS FOR THE YEAR UNDER CONSIDERATION. IN LIGHT OF THE SAME, WE AGREE WITH THE FINDINGS OF THE LOWER AUTHORITIES THAT THERE WAS A CLOSING STOCK OF 22 CT GOLD WEIGHING 8538.46 GMS WHICH WAS NOT ACCOUNTED FOR WHILE VALUI NG THE CLOSING STOCK IN THE FINANCIAL STATEMENTS. THE QUESTION TH AT ARISES FOR CONSIDERATION IS WHAT HAPPENED TO THIS STOCK. THERE IS NOTHING ON RECORD TO SHOW THAT THIS STOCK OF 22 CT GOLD HAS BEEN RETU RNED AND ACCOUNTED FOR EVEN IN THE SUBSEQUENT YEARS EITHER IN FORM OF 22 CT GOLD OR 24 CT GOLD ORNAMENTS. IN SUCH A SCENARIO, ONLY SCENARIO WHICH CAN BE VISUALISED IS THAT THE ASSESSEE HAS SOLD THIS 22 CT GOLD OUT OF BOOKS AND HAS NOT ACCOUNTED FOR THE SAME IN HIS BOOKS OF ACCO UNTS. EVEN THE LD AR IN HIS ALTERNATE CONTENTIONS, WHICH HAS BEEN MAD E WITH DUE INSTRUCTIONS AND CONSENT FROM THE ASSESSEE, HAS PLE ADED THAT WHERE OTHER CONTENTIONS ARE NOT ACCEPTED, SUCH 8538.46 GM S OF GOLD SHOULD BE TREATED AS UNACCOUNTED SALES OF THE ASSESSEE AMO UNTING TO RS 2,22,62,313. FURTHER, WE FIND THAT THERE ARE DISCRE PANCIES IN THE VALUATION OF 22 CT AND 24 CT GOLD WHICH HAS BEEN CL OSELY EXAMINED AND RIGHTLY DETERMINED BY THE LOWER AUTHORITIES AT THE WEIGHTED AVERAGE COST METHOD. IN LIGHT OF ABOVE DISCUSSIONS, WE AGR EE WITH THE CONTENTIONS OF THE LD DR THAT WHERE THERE ARE GLARI NG DISCREPANCIES IN THE STOCK MOVEMENT AND VALUATION THEREOF, THE BOOKS OF ACCOUNTS HAVE BEEN RIGHTLY REJECTED BY THE LD CIT(A) UNDER SECTIO N 145(3) OF THE ACT AS THE SAME CANNOT HELP DETERMINE THE TRUE AND CORRECT INCOME IN THE HANDS OF THE ASSESSEE. OUR VIEW IS FORTIFIED BY TH E DECISION OF THE M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 8 HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS MANG ILAL CHOUDHARY REPORTED IN 54 TAXMANN.COM 320 WHEREIN IT WAS HELD AS UNDER: 9. UNDER SECTION 145(3) OF THE ACT OF 1961 THE REQ UIREMENT IS THAT THE ASSESSING OFFICER MUST BE SATISFIED ABOUT CORRECTNE SS AND COMPLETENESS OF THE ACCOUNTS OF THE ASSESSEE. MERE SUBMISSION OF VOUCHERS IS NOT SUFFICIENT TO ARRIVE AT THE CONCLUSION THAT THE TRA DING RESULT SHOWN BY THE ASSESSEE ARE TRUE. THE ASSESSING OFFICER WHILE MAKING ASSESSMENT OF RETURN CAN REJECT THE SAME AS UNRELIABLE, IF IMP ORTANT TRANSACTIONS ARE OMITTED THEREFROM OR IF PROPER PARTICULARS IN VOUCH ERS ARE NOT FORTH COMING OR IF THEY DO NOT INCLUDE ENTRIES RELATING T O SEVERAL RELEVANT FACTS NECESSARY TO COMPUTE INCOME. THE REJECTION OF ACCOU NTS WOULD ALWAYS BE JUSTIFIED WHEN THE ACCOUNTS BOOKS ARE FOUND UNRE LIABLE, INCORRECT OR INCOMPLETE FOR VALID REASONS. 10. NOW, WHEN THE BOOKS OF ACCOUNTS HAVE BEEN REJEC TED, THEN A FAIR ESTIMATE OF INCOME IS REQUIRED TO BE MADE IN THE IN STANT CASE. IT IS A SETTLED LEGAL PROPOSITION THAT IN A BEST JUDGMENT A SSESSMENT, THERE IS ALWAYS A CERTAIN DEGREE OF GUESS WORK INVOLVED AND THOUGH ARBITRARINESS CANNOT BE AVOIDED IN SUCH ESTIMATES, THE SAME MUST NOT BE CAPRICIOUS BUT SHOULD HAVE A REASONABLE NEXUS TO THE AVAILABLE MATERIAL AND THE CIRCUMSTANCES OF THE CASE. IT IS W ITH REFERENCE TO THESE PRINCIPLES THAT THE QUESTION RAISED BEFORE US WILL HAVE TO BE CONSIDERED AND LOOKING AT IT FROM THAT POINT OF VIEW, THE REAL QUESTION IS WHAT SHOULD BE REASONABLE RATE OF PROFIT WHICH ASSESSEE WOULD HAVE EARNED ON THE TOTAL TURNOVER - DECLARED TURNOVER OF RS 5,0 7,13,609 AS WELL AS UNACCOUNTED TURNOVER AS REPRESENTED BY 8538.46 GM O F 24 CT GOLD VALUED AT RS 2,49,97,878/-. THE HONBLE RAJASTHAN HIGH COURT IN SIMILAR CASES HAVE HELD THAT THE BEST GUIDE IN CASE OF FAIR ESTIMATION IS PAST M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 9 HISTORY OF THE ASSESSEE AND DIRECTED TO APPLY LAST FIVE YEARS AVERAGE FOR THE PURPOSES OF DETERMINATION OF FAIR ESTIMATION OF PROFITS. APPLYING THE SAME IN THE INSTANT CASE, AVERAGE OF LAST FIVE YEAR S G.P RATE AND WHICH HAS ATTAINED FINALITY, BEING INDICATIVE OF THE MANU FACTURING RESULTS, SHOULD BE CONSIDERED FOR DETERMINING THE AVERAGE G. P RATE. THE MATTER IS ACCORDINGLY SET-ASIDE TO THE FILE OF THE AO FOR THE LIMITED PURPOSES OF DETERMINATION OF AVERAGE G.P OF LAST FIVE YEARS, CO MPARE IT WITH DECLARED G.P AND DETERMINE THE ADJUSTMENT TAKING IN TO CONSIDERATION THE ABOVE DISCUSSIONS. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. 6. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING P URUSED THE ORDER PASSED BY THE COORDINATE BENCH AND OTHER MATERIAL O N RECORD, WE ARE OF THE VIEW THAT ALL THE ABOVE STATED CONTENTIONS S O RAISED BY THE ASSESSEE THROUGH ITS LD AR WERE DULY CONSIDERED BY THE COORDINATE BENCH AND THEREAFTER, A CLEAR FINDING HAS BEEN RECO RDED BY THE COORDINATE BENCH. THE CONTENTIONS OF THE LD AR REGA RDING APPLYING N.P RATE FOR THE YEAR UNDER CONSIDERATION WAS DULY CONS IDERED BY THE COORDINATE BENCH AND THEREAFTER, THE COORDINATE BEN CH HAS DECIDED TO APPLY THE AVERAGE OF LAST FIVE YEAR G.P RATE BASED THE LEGAL PROPOSITION SO LAID DOWN BY THE HONBLE RAJASTHAN HIGH COURT. T HE NON-ACCEPTANCE OF ASSESSEES CONTENTION, OF APPLYING THE CURRENT Y EAR PROFIT RATE ONCE THE BOOKS OF ACCOUNTS HAVE BEEN REJECTED AND SIMULT ANEOUSLY, FOLLOWING THE LEGAL PROPOSITION LAID DOWN BY THE JURISDICTION AL HIGH COURT WHEREBY THE PAST HISTORY HAS BEEN HELD TO BE A RELIABLE BAS IS OF ESTIMATION OF PROFITS ONCE THE BOOKS OF ACCOUNTS ARE REJECTED, CA NNOT BE A SUBJECT MATTER OF PRESENT APPLICATION UNDER SECTION 254(2) OF THE ACT. SIMILARLY, M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 10 THE CONTENTIONS REGARDING THE ASSESSEE HAVING PAID LABOUR CHARGES/MAKING CHARGES FOR MANUFACTURING OF JEWELLE RY AND TDS DEDUCTED THEREON, THE SAID CONTENTION WAS ALSO DULY CONSIDERED AS APPARENT FROM PARA 9 OF THE ORDER AS REPRODUCED ABO VE AND WE DONOT SEE ANY APPARENT MISTAKE IN TERMS OF NON-CONSIDERAT ION OF THE SAID CONTENTION BY THE COORDINATE BENCH. 7. IF WE WERE TO EXAMINE THE SAID CONTENTIONS SO RA ISED BY THE ASSESSEE, IT WILL AMOUNT TO A FRESH EXAMINATION AND REVIEW OF THE ORDER PASSED BY THE COORDINATE BENCH WHICH IS NOT PERMISS IBLE UNDER SECTION 254(2) OF THE ACT. IN LIGHT OF THE SAME, WE DONOT FIND ANY MISTAKE WHICH IS APPARENT FROM THE RECORD AND WHICH CALLS F OR INTERFERENCE UNDER SECTION 254(2) OF THE ACT. IN THE RESULT, THE MISC. APPLICATION FILED BY THE A SSESSEE IS HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/07/2018. SD/- SD/- FOT; IKWY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 06/07/2018. * GANESH KR VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI JITENDRA KUMAR AGARWAL, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-1, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) M.A. NO. 59/JP/2018 SHRI JITENDRA KUMAR AGARWAL, JAIPUR VS. ACIT, JAIPU R 11 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { M.A. NO. 59/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR