Shri Shamdas V. Bhagtani, Pune V. JCIT, Special Range-4, Pune

MA 61/PUN/2008

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6727 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 10 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 01-07-2011
• Assessment Year: misc
• Appeal Filed On: 28-08-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH
• Assessee Lawyers: SUNIL PATHAK

Judgement Text

1 M.A.61/PN/2010 SHRI SHAMDAS V.BHAGTANI IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI D. KARUNAKARA RAO, AM M.A.NO.61/PN/2008 (IN ITA NOS. 856/PN/03 AND 926/PN/2003 (BLOCK PD.1- 4-1988 TO 28-7-19980) SHRI SHAMDAS V.BHAGTANI, PUNE PAN AAVPB4555E APPLLICANT VS. JOINT COMMISSIONER OF INCOME TAX, SPECIAL RANGE 4, PUNE . RESPONDENT APPLICANT BY : SHRI SUNIL PATHAK RESPONDENT BY : SHRI SANJAY SINGH ORDER PER D. KARUNAKARA RAO, AM THE PRESENT MISCELLANEOUS APPLICATION ARISES FROM O UR ORDER DT.30-4-2007 MADE IN ITA NOS.856/PN/20033 AND 926/PN/2003. 2. AT THE OUTSET, IN THE LIGHT OF THE SEVEN PARAGRA PHS MENTIONED IN THE MISCELLANEOUS APPLICATION, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL HAS ERRED IN CONFIRMING THE ADDITION OF RS .1,93,200 OUT OF THE TOTAL ADDITION OF RS.7.5 LAKHS. AS PER PARA 18 OF THE SAID MA, TH E SAID FIGURE RS.1,93,200 WAS ARRIVED AT ON CONSIDERING 483 DAYS I.E. 365 DAYS IN THE FINANCIAL YEAR 1997-98 AND 118 DAYS FROM 1-4-1998 TO 20-8-1998 FOR THE PURPOSE OF ESTIMATING THE INCOME FOR 2 M.A.61/PN/2010 SHRI SHAMDAS V.BHAGTANI ADDITION. THE TRIBUNAL ESTIMATED THE SAID INCOME C ONSIDERING THE PURCHASE OF MILK OF 400 LITERS PER DAY FOR THE PERIOD OF 483 DAYS. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED VEHEMENTLY STATING THAT WHAT IS OFFERED BY THE COUNSEL DURING THE PROCEEDINGS BEFORE THE TRIBUNAL IN THE F IRST ROUND AS EVIDENCED BY THE NOTE FILED BY THE COUNSEL DURING THE HEARING BEFORE THE TRIBUNAL IS ONLY RS.68,400/- AND IT IS ARRIVED AT ON CONSIDERING 60,400 LITERS O F MILK FOR 151 DAYS (I.E. 400 LITERS PER DAY 1-1-98 TO 31.5.1998) AND GROSS PROFIT AT 10 % ON THE TOTAL PURCHASE OF 60,400 LITERS). THE ASSESSEE ALSO OFFERED INITIAL I NVESTMENT FOR TWO DAYS WHICH IS EQUAL TO 800 LITERS @ RS.10 AMOUNTING TO RS.8000. L D COUNSEL ARGUED STATING THAT THE TRIBUNAL ERRONEOUSLY CONSIDERED 483 DAYS INSTEA D OF 151 DAYS. ON THE OTHER HAND, LD DR FOR THE REVENUE MENTIONED THAT THE TRIBUNAL DID NOT CONSIDER THE ESTIMATIONS INDICATED BY THE LD CO UNSEL AND IN THE SAID NOTE. INSTEAD THE TRIBUNAL MADE ITS OWN ESTIMATIONS BASED ON THE SEIZED PAPERS FOR THE PERIOD OF 483 DAYS. IN THIS REGAD, LD DR BROUGHT OU R ATTENTION TO VARIOUS PARAGRAPHS OF THE IMPUGNED ORDER OF THE CIT(A). 3. ON HEARING BOTH THE PARTIES AND PERUSED THE ORDE R OF THE CIT(A). WE HAVER ALSO GONE THROUGH THE CONTENTS OF THE NOTE CITED BY THE COUNSEL. IT IS A FACT THAT THE SAID NOTE INDICATES ONLY 151 DAYS. AT THE SAME TIME , THE TRIBUNAL CONSIDERED THE 483 DAYS FOR THIS, THE TRIBUNAL RELIED ON THE FACTS BRO UGHT OUT IN THE ORDER OF THE CIT(A) AT VARIOUS PARAGRAPHS OF HIS ORDER. WE PERUSED THE ORDER OF THE CIT(A) AND FIND THAT HE MENTIONED THAT THE UNDISCLOSED TRANSACTIONS ARE RELEVANT ONLY FOR THE PERIOD FALLING WITHIN THE FINANCIAL YEAR 1997-98 AND FOR T HE PART PERIOD OF 1998-99. IF THESE 3 M.A.61/PN/2010 SHRI SHAMDAS V.BHAGTANI PERIODS ARE CONSIDERED FOR ESTIMATIONS, THE SAME AC COUNTS FOR 483 DAYS. THUS, WE ARE OF THE OPINION THAT VIDE THE ORDER PASSED BY TH E TRIBUNAL, THE TRIBUNAL HAS REJECTED THE ASSESSEES WAY OF CALCULATING OR ESTIM ATING THE ADDITIONS TO BE MADE AND THE TRIBUNAL ON ITS OWN ACCORD REACHED THE CONC LUSION THAT THE ESTIMATION HAS TO BE DONE FOR THE WHOLE PERIOD OF 483 DAYS AND NOT FO R 151 DAYS AS MADE OUT BY THE ASSESSEES COUNSEL IN HIS NOTE. THEREFORE, WE FIND NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WITHIN THE MEANING OF SEC 254(2) OF THE INCOME TAX ACT. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED . ORDER PRONOUNCED IN THE COURT ON -7-2011. (SAILENDRA KUMAR YADAV) (D.KARUNAK ARA RAO) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED THE JULY, 2011 *VNR COPY OF THE ORDER IS FORWARDED TO : 1. ASSESSEES AS MENTIONED IN THE CAUSE TITLE 2. DY.CIT, CENTRAL CIRCLE 2(2), PUNE. 3. CIT (A)-I, PUNE. 4. CIT CONCERNED, 5. D.R. ITAT B BENCH, PUNE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR I.T.A.T PUNE.