KIKIMAL K. CHHABRIA, V. DDIT (IT) 2(1),

MA 603/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0036 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 24-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: K R LAKSHMI NARAYANAN

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI . .. . . .. . , ,, , ! ! ! ! , ' ' ' ' # $% # $% # $% # $% , ,, , & ! & ! & ! & ! ' ' ' ' BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ('(' ' ) . / M.A. NO.603/MUM./2012 . / ITA NO. 2906/MUM./2011 *+ , ( &) - '.- / ASSESSMENT YEAR : 200506 ) MR. KIKIMAL K. CHHABRIA PROP: M/S. CREATIONS 268, AZ, INDUSTRIAL ESTATE GANPATRAO KADAM MARG LOWER PAREL, MUMBAI 400 013 .. /0 / APPELLANT ) V/S INCOME TAX OFFICER WARD18(2)(3), AAYAKAR BHAWAN 101, M.K. ROAD, MUMBAI 400 020 .... 12/0 / RESPONDENT !/ . / PERMANENT ACCOUNT NUMBER AAAPC6123E &) -4 5 6 / ASSESSEE BY : MR. K.R. LAKSHMINARAYANAN !' 5 6 / REVENUE BY : MR. DINESH KUMAR )' 5 / DATE OF HEARING 08.02.2013 $ 78. 5 / DATE OF ORDER 26.03.2013 $ $ $ $ / ORDER # $% # $% # $% # $% , ,, , & ! & ! & ! & ! 9 99 9 / PER AMIT SHUKLA, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE SEEKS RECALL OF THE IMPUGNED ORDER DATED 24 TH AUGUST 2012, PASSED BY THE TRIBUNAL IN ITA NO.2906/MUM./2011, FOR ASSESSMENT YEAR 200506. MR. KIKIMAL K. CHHABRIA 2 2. IN THIS CASE, THE ADDITION OF ` 7,06,273, WAS MADE AFTER REJECTING THE BOOKS OF ACCOUNT AND APPLYING GROSS PROFIT RATE OF 30% IN COMPARISON TO GROSS PROFIT SHOWN BY THE ASSESSEE @ 27.5%. THE COMMISSIONER (APPEALS), BASED ON THE AVERAGE GROSS PROFIT RATE O F LAST THREE YEARS DIRECTED THE ASSESSING OFFICER TO COMPUTE THE GROSS PROFIT RATE OF 29%. ONE OF THE MAIN CONTENTIONS OF THE LEARNED COUNSEL BEFORE US WAS THAT IN THE ASSESSMENT YEAR 200607, THE ASSESSING OFFICER HAS MADE AN ADDITION OF ` 3,00,000, ON SIMILAR FACTS. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS RELIED HEAVILY UPON THE FINDINGS OF THE COMMISSIONER (APPEALS). ON THESE FACTS, THE TRIBUNA L TOOK A VIEW THAT THE ADDITION OF ` 3,00,000, WILL MEET THE ENDS OF JUSTICE, AS THE AS SESSING OFFICER HAS SUSTAINED THE ADDITION OF ` 3,00,000, IN THE SUBSEQUENT YEARS. SINCE THIS WAS A CASE OF BEST JUDGMENT ASSESSMENT , THE ESTIMATE OF INCOME WAS MADE ON REASONABLE BASIS AND THE BALANCE ADDITION WAS DELETED. NOW, THE ASSESSEE HAS CONTENDED THAT THE C OMMISSIONER (APPEALS) IN THE APPEAL FILED AGAINST THE ASSESSMEN T ORDER FOR THE ASSESSMENT YEAR 200607, HAS DELETED THE ADDITION O F ` 3,00,000, THEREFORE, THE TRIBUNALS ORDER SHOULD BE MODIFIED TO THAT EXTENT AS THE BASIS OF ` 3,00,000, TAKEN FROM THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 200607, DOES NOT STAND. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FINDINGS OF THE ORDERS AND THE MATERIAL WHICH WAS PLACED BEFORE US. IN THIS CASE, THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THE R EASONS FOR REJECTION OF THE BOOKS OF ACCOUNT, AS DISCUSSED BY THE COMMISSIO NER (APPEALS), HAS NOT BEEN REBUTTED BY THE ASSESSEE AND THE ONLY RECO URSE IS TO ESTIMATE THE INCOME ON THE BASIS OF BEST JUDGMENT ASSESSMENT . THE TRIBUNAL HAS REDUCED THE QUANTUM OF ASSESSMENT SUBSTANTIALLY AFT ER FOLLOWING THE SUBSEQUENT ORDER OF THE ASSESSING OFFICER FOR THE A SSESSMENT YEAR 2006 07. NOW, SUCH AN ORDER HAS BEEN MODIFIED BY THE COM MISSIONER (APPEALS). THE SAME CANNOT BE THE BASIS FOR MODIFYING THE FIND INGS OF THE TRIBUNAL AS THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. THE ORDER OF THE COMMISS IONER (APPEALS) FOR THE ASSESSMENT YEAR 200607, WAS NOT BROUGHT TO THE NOT ICE OF THE TRIBUNAL, MR. KIKIMAL K. CHHABRIA 3 AT THE TIME OF HEARING OF THE APPEAL, IN FACT, THE LEARNED COUNSEL HAD HEAVILY RELIED UPON THE ASSESSMENT ORDER FOR THE AS SESSMENT YEAR 2006 07. AT THIS STAGE OF PROCEEDINGS UNDER SECTION 254( 2), THE ASSESSEE IS CONTENDING THAT SUCH AN ORDER HAS BEEN MODIFIED WHI CH WAS NOT PLACED IN THE RECORD. THUS, SUCH AN ORDER CANNOT BE TAKEN INT O COGNIZANCE IN THE PROCEEDINGS UNDER SECTION 254(2). ACCORDINGLY, WE D O NOT FIND ANY SUBSTANCE IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND THE SAME STANDS REJECTED. 4. 4 : &) -4 5 ('(' ' ) 4 ) ;< = 4. IN THE RESULT, ASSESSEES MISC. APPLICATION IS T REATED AS DISMISSED. $ 5 8. > ? ): 26 TH MARCH 2013 8 5 = ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH MARCH 2013 SD/- . .. . . .. . ! ! ! ! P.M. JAGTAP ACCOUNTANT MEMBER SD/- # # # # $% $% $% $% & ! & ! & ! & ! AMIT SHUKLA JUDICIAL MEMBER MUMBAI, ? ) ? ) ? ) ? ) DATED: 26 TH MARCH 2013 $ 5 1&#( @(. / COPY OF THE ORDER FORWARDED TO : (1) &) -4 / THE ASSESSEE; (2) !' / THE REVENUE; (3) A () / THE CIT(A); (4) A / THE CIT, MUMBAI CITY CONCERNED; (5) ('D 1&&) , , / THE DR, ITAT, MUMBAI; (6) E- F / GUARD FILE. 2( 1& / TRUE COPY $) / BY ORDER 1 . GH / PRADEEP J. CHOWDHURY '4I &) G' / SR. PRIVATE SECRETARY * / ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI