Sh. Anil Dutt, Yamunanagar V. ITO, Yamunanagar

MA 66/CHANDI/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0204 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 03-05-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 15-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J S NAGAR
• Assessee Lawyers: MINKY MITTAL
• Keywords: Unexplained investment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B, CHANDIGARH BEFORE SHRI T.R. SOOD, ACCOUNTANT MEMBER MS. AND SUSHMA CHOWLA, JUDICIAL MEMBER M.A. NO.66 /CHD/2012 (IN ITA NO.984/CHD/2009) (ASSESSMENT YEAR: 2005-06) SHRI ANIL DUTT PROP. VS. ITO, WARD-3, M/S SHARMA CEMENT STORE, YAMUNANAGAR BILASPUR, YAMUNANAGAR. C/O RAVINDER BINDLISH CHANDIGARH PAN NO. AEZPO6366H (APPLICANT) (RESPONDENT) APPLICANT BY : MS.MINKY MITTAL RESPONDENT BY : SHRI J.S.NAGAR, DR DATE OF HEARING : 03.05.2013 DATE OF PRONOUNCEMENT : 21.05.2013 O R D E R PER SUSHMA CHOWLA, JM: THE APPLICANT HAS FILED THIS MISCELLANEOUS APPLICAT ION FOR RECALLING THE ORDER DATED 8.01.2010 IN ITA NO. 984/ CHD/2009 RELATING TO THE ASSESSMENT YEAR 2005-06. 2. THE MISCELLANEOUS APPLICATION FILED BY THE APPLI CANT READS AS UNDER: THE APPEAL IN THE CASE CITED AS SUBJECT WAS DECIDED BY THE HON'BLE BENCH ON 28/01/2010 ON THE FOLLOWING GROUNDS OF APPEAL:- '1. THE IMPUGNED ORDER IS AGAINST FACTS AND AD DITION MADE BY THE ITO AND SUSTAINED BY THE CIT(A) IS ARBITRARY AND DESERVES TO BE DELET ED. 2. THE LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RETURN INCOME OF RS.1,45,793/- TO RS.6,30,660/-. 3. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F THE AO U/S 145(3) OF THE INCOME TAX ACT. 4. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ESTIMATE OF SALES OF RS. 71,87,479/- AS AGAINST ACTUAL SALE OF RS.54,46,680/ -. 2 5. LD. CIT(A) HAS ERRED IN APPLICATION OF GP RATE @7.5 % WITHOUT APPRECIATING THE FACTS AND IN CORRECT PROSPECTIVE. 6. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE PATENTLY ERRONEOUS ESTIMATE OF UNACCOUNTED INVESTMENT IN STOCK ETC. OF RS.2,46,120/- WITHOUT APPRECIATING THE OTHER ADDITIONS MADE BY TH E LD. AO. 7. LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF CASH OF RS.28,175/-. 8. LD. CIT(A) HAS ERRED IN SUSTAINING THE ERRONEOUS AD DITION OF RS.32,940/- MADE BY THE LD. AO ON ACCOUNT OF ALLEGED TRANSACTIO N FOUND IN THE SEIZED MATERIAL.' IN THE FACTS OF THIS CASE, I PRAY IN THE PRESENT MI SCELLANEOUS APPLICATION AS UNDER:- THE HON'BLE TRIBUNAL HAS DECIDED THE MATTER AGAINST US WITHOUT CONSIDERING OUR SUBMISSIONS MADE WITH REGARD TO THE WITHDRAWALS MAD E FROM THE BANK ACCOUNTS. FOR THIS, PLEASE REFER TO PAGE 3, PARA 1 OF THE PAP ER BOOK DATED 15/01/2010. ANY ADDITION UNDER THIS HEAD IS A PATENT ERROR. THE HON'BLE TRIBUNAL HAS FAILED TO TAKE NOTE OF THE SPECIFIC GROUND OF APPEAL NO. 3 TAKEN BEFORE WORTHY CIT(A) WHICH READS AS UNDER:- 'THE LEARNED ASSESSING OFFICER HAS ERRED IN MAKING THE ESTIMATION OF SALES AT RS.7187479/- ON THE BASIS OF CASH DEPOSITE D IN THE BANK ACCOUNT OF THE ASSESSEE WITHOUT CONSIDERING THE FACT THAT P ART OF THE CASH WAS REDEPOSITED AFTER WITHDRAWING THE SAME FROM THE BAN K ACCOUNT.' THE SURPLUS CLOSING STOCK OF RS.L,08,675/~ WAS FOUN D DURING SURVEY OPERATION WHICH WE DECLARED IN THE DECLARED CLOSING STOCK. THE ADDITIO N OF THIS AMOUNT IN THE RETURN INCOME HAS RESULTED INTO DOUBLE ADDITION. FOR THIS, REFER TO PAGE 3, PARA 2,3 & 4 OF THE PAPER BOOK DATED 15/01/2010. THE CASH DECLARED IN THE BOOKS AS ON 16/03/2005 IS THE SAME CASH WHICH WAS FOUND DURING SURVEY OPERATION AND THIS CONTINUED TILL 31/ 03/2005 WITH FURTHER INCREASE AS PER BOOKS OF ACCOUNTS AND HENCE THE ADDITION OF THI S AMOUNT IN THE TOTAL INCOME BY THE LD. ITO AND SUSTAINED BY HON'BLE ITAT IS A PATENT E RROR WHICH NEEDS CORRECTIFICATION - PLEASE REFER PAGE 4, 15 & 29 OF THE PAPER BOOK DATE D 15/01/2010. IT IS PRAYED THAT THE MISCELLANEOUS APPLICATION MAY PLEASE BE READJUDICATED IN THE LIGHT OF THE ABOVE FACTS AND APPROPRIATE RELIEF MAY PLEASE BE ALLOWED JUDICIOUSLY AS MUCH AS POSSIBLE FOR WHICH WE SHALL BE HIGHLY GRATEFUL T O YOUR HONOUR. 3. FROM THE PERUSAL OF THE RECORD WE FIND THAT THE APPEAL OF THE ASSESSEE WAS DECIDED VIDE ORDER DATED 28.1.2010 BY DETAILED ORDER. THE ASSESSEE MOVED MISCELLANEOUS APPLICATION IN MA NO.3 1/CHD/2010 WHEREIN THE FACTUAL ASPECTS OF THE CASE WERE AGAIN PLACED BEFORE THE TRIBUNAL AND THE ADDITIONS MADE WERE ASSAILED UPON BY WAY OF WRITTEN SUBMISSIONS FILED IN THE MISCELLANEOUS APPLICATION. THE TRIBUNAL VIDE ORDER DATED 11.2.2011 DISMISSED THE MISCELLANEOUS A PPLICATION FILED BY 3 THE ASSESSEE IN MA NO.31/CHD/2010. THE ASSESSEE H AS NOW MOVED ANOTHER MISCELLANEOUS APPLICATION VIDE MA NO.66/CHD /2012 IN ITA NO.984/CHD/2009 MAKING SIMILAR ARGUMENTS AS IN THE EARLIER MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 4. THE LEARNED COUNSEL FOR THE ASSESSEE PLACED RELI ANCE IN MISCELLANEOUS APPLICATION AND POINTED OUT THAT CERT AIN ASPECTS WERE NOT CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE APPEA L OF THE ASSESSEE. 5. THE LEARNED D.R. FOR THE REVENUE POINTED OUT THA T THE PRESENT MISCELLANEOUS APPLICATION WAS NOTHING BUT REVIEW OF THE ORDER OF THE TRIBUNAL. 6. ON THE PERUSAL OF THE RECORD IT TRANSPIRES THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS SECOND MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.984/CHD/2009 DATED 28.1.2010. THE PRESENT M ISCELLANEOUS APPLICATION IS NOT MAINTAINABLE AS THE ASSESSEE HAS ALREADY MOVED MISCELLANEOUS APPLICATION IN MA NO.31/CHD/2010 WHIC H HAD BEEN DISMISSED BY THE TRIBUNAL ON SIMILAR FACTS VIDE ORD ER DATED 11.2.2011. THE SECOND MISCELLANEOUS APPLICATION FILED IN THE C ASE IS MISUSE OF THE PROVISIONS OF SECTION 254(2) OF THE ACT. FURTHER W E NOTE THAT THE LEARNED A.R. FOR THE ASSESSEE FAILED TO BRING IT TO THE NOT ICE OF THE BENCH THAT THIS WAS THE SECOND MISCELLANEOUS APPLICATION BEING MOVED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN ITA N O.984/CHD/2009. WE DO NOT APPRECIATE THE CONDUCT OF THE LEARNED A.R. F OR THE ASSESSEE IN THIS REGARD. IN THE GIVEN FACTS AND CIRCUMSTANCES WHERE THE LEARNED A.R. FOR THE ASSESSEE HAD FAILED TO BRING THE FACTS ON RECOR D AND POINT OUT THE FACT THAT THE PRESENT MISCELLANEOUS APPLICATION WAS THE SECOND MISCELLANEOUS APPLICATION MOVED BY THE ASSESSEE AGA INST THE ORDER OF 4 THE TRIBUNAL IN ITA NO.984/CHD/2009, DESERVES IMPOS ING OF COST IN THE CASE. HOWEVER, WE ARE NOT IMPOSING ANY COST IN THE PRESENT CASE BUT ARE ISSUING A CAUTION TO THE LEARNED COUNSEL FOR THE AS SESSEE TO TAKE NOTE THAT SIMILAR PROCEEDINGS ARE NOT REPEATED AGAIN OTHERWIS E HEAVY COST WOULD BE PUT ON THE LEARNED COUNSEL FOR THE ASSESSEE FOR BEING NEGLIGENT AND NOT PUTTING THE FACTS CORRECTLY BEFORE THE BENCH. WE HEREBY DISMISS MISCELLANEOUS APPLICATION MOVED BY THE ASSESSEE IN LIMINE BEING NOT MAINTAINABLE. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE APPLICANT IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF MAY, 2013. SD/- SD/ - (T.R. SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 21 ST MAY, 2013 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/TH E CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH