ITO, Jaipur V. SHANKAR JHALANI, Jaipur

MA 62/JPR/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5685 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 25-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL

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.62/JP/17 (ARISING OUT OF ITA NO. 644/JP/15) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 THE ITO, WARD-3(4), JAIPUR CUKE VS. SHRI SHANKAR JHALANI, B-3, LALJI KA BAGH, MOTILAL ATAL ROAD, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABTPJ9902E VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS @ REVENUE BY : SMT. NEENA JEPH ( JCIT) FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI P.C. PARWAL (CA) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 08/12/2017 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 04/01/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE REVENUE HAS MOVED THE PRESENT MISC. APPLICATION AGAINST THE ORDER PASSED BY THE COORDINATE BENCH IN ITA NO. 644 /JP/2015 DATED 07.04.2016 FOR A.Y. 2009-10. 2. IN ITS APPLICATION THE REVENUE HAS SUBMITTED THA T VIDE ORDER DATED 07.04.2016 IN ITA NO. 644/JP/2015 FOR THE AY 2009-10 IN THE CASE OF SHRI SHANKAR JHALANI, RECEIVED IN THE OFFIC E OF PR. CIT-1, JAIPUR ON 04.07.2016, THE HONBLE TRIBUNAL HAS SET ASIDE T HE ASSESSMENT TO M.A. NO. 62/JP/2017 ITO, JAIPUR VS. SHRI SHANKAR JHALANI, JAIPUR 2 DECIDE THE ISSUE OF ESTIMATION OF INCOME ON ACCOUNT OF BOGUS/UNVERIFIABLE PURCHASES TO THE FILE OF THE AO FOR FRESH ASSESSMENT AFTER THE JUDGMENT OF HONBLE HIGH COURT IS DELIVER ED IN THE CASE OF ANUJ KUMAR VARSHNEY AND OTHERS. IT WAS SUBMITTED THAT THE DECISION OF THE ITAT IN S ETTING ASIDING THE ASSESSMENT IS NOT JUSTIFIABLE. ANY MATTER CANNOT BE SET ASIDE FOR AFRESH ASSESSMENT SUBJECT TO AN UNCERTAIN FUTURE EVEN AND ALSO FOR INDEFINITE PERIOD. THE SET ASIDE ASSESSMENTS ARE REQUIRED TO B E COMPLETED BY THE AO WITHIN THE TIME PRESCRIBED IN SECTION 153(2A) OF THE IT ACT 1961, WHICH IS NINE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER OF THE ITAT IS RECEIVED BY THE CONCERNED COMM ISSIONER. THIS LIMITATION CANNOT BE EXTENDED BY THE HONBLE ITAT I TSELF FOR INDEFINITE AND UNCERTAIN PERIOD AS NO LIMITATION HAS BEEN PRES CRIBED FOR THE DECISION OF THE HONBLE HIGH COURT, THEREFORE, AN A SSESSMENT CANNOT BE KEPT IN ABEYANCE TILL SUCH ORDER OF THE HONBLE HIG H COURT. SINCE THE IMPLIED LEGAL ISSUE OF LIMITATION FOR COM PLETING ASSESSMENT AS PROVIDED U/S 153(2A) R.W.S 153(3)(II) OF THE IT ACT 1961 WAS ALSO RAISED DURING HEARING REMAINED UNDECIDED BY HONBLE ITAT, THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE HONBLE ITAT. FURTHER, IT WAS SUBMITTED THAT IT IS MENTIONED IN O RDER THAT BOTH THE PARTIES HAD AGREED THAT THE ISSUE IN QUESTION MAY B E SET ASIDE TO THE FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGMENT RENDERED IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS VS. ITO OF HONBLE RAJASTHAN M.A. NO. 62/JP/2017 ITO, JAIPUR VS. SHRI SHANKAR JHALANI, JAIPUR 3 HIGH COURT. THIS OBSERVATION IS FACTUALLY NOT CORRE CT BECAUSE NO SUCH ACCEPTANCE WAS GIVEN BY DEPARTMENTAL REPRESENTATIVE . SINCE THE MISTAKE IS APPARENT FROM THE ORDER OF THE HONBLE ITAT, JAIPUR BENCH, JAIPUR, THE SAME MAY KINDLY BE RECTIF IED UNDER SECTION 254(2) OF IT ACT 1961 BY RECALLING THE APPEAL ORDER AND DECIDING THE SAME ON MERITS. 3. FROM THE PERUSAL OF MATERIAL AVAILABLE ON RECORD , IT IS NOTED THAT THE ISSUE INVOLVED IN THE ASSESSMENT PROCEEDINGS RE LATED TO UNVERIFIED PURCHASES AMOUNTING TO RS 59,88,350. THE CO-ORDINAT E BENCH VIDE ITS ORDER DATED 7.4.2016 HAS SET ASIDE THE MATTER TO TH E FILE OF THE AO TO DECIDE THE SAME AFRESH AFTER THE JUDGEMENT OF HONB LE RAJASTHAN HIGH COURT IN THE CASE OF ANUJ KUMAR VARSHNEY & OTHERS V S. ITO (SUPRA) IS DELIVERED. FROM THE PERUSAL OF RECORDS, IT IS ALSO NOTED THAT THE PROVISIONS OF SECTION 153(2A) OF THE ACT WERE NOT B ROUGHT TO THE NOTICE OF THE COORDINATE BENCH. 4. WE ACCORDINGLY RECALL THE ORDER PASSED BY THE COORD INATE BENCH DATED 7.4.2016 AND DIRECT THE REGISTRY TO FIX THE MATTER FOR FRESH HEARING IN DUE COURSE. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISPOSED OFF ACCORDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 04/01/2018. M.A. NO. 62/JP/2017 ITO, JAIPUR VS. SHRI SHANKAR JHALANI, JAIPUR 4 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:- 04/01/2018 GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- ITO, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- SHRI SHANKAR JHALANI, JAIPUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {M.A. NO. 62/JP/2017} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR