SHIV EDIBLES LTD., Kota V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, Kota

MA 66/JPR/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7338 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 08-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARY JT
• Keywords: Rejection of books of accounts; Principle of natural justice; Period of limitation
• Section: 254(2); 145(3)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENC HES A JAIPUR JH LAANHI XKSLKBZ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SING H YADAV, AM M.A. NO. 66/JP/2020 (ARISING OUT OF ITA NO. 479/JP/2019) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2015-16 M/S SHIV EDIBLES LIMITED, 237/A, TALWANDI, KOTA CUKE VS. ACIT, CIRCLE-1, KOTA LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAICS 0274 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SH. MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. MONISHA CHOUDHARY (JT. CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 16/03/2021 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 05/04/2021 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINAT E BENCH IN ITA NO. 479/JP/2019 DATED 09/12/2019. 2. AT THE OUTSET, IT IS NOTED THAT THERE IS A DELAY IN FILING PRESENT MISCELLANEOUS APPLICATION BY 89 DAYS AS POINTED OUT BY THE REGISTRY. IN THIS REGARD, THE LD. AR SUBMITTED THAT DUE TO THE C OVID-19 PANDEMIC AND CONSEQUENT LOCK DOWN, THE MISCELLANEOUS APPLICATION COULD NOT BE FILED WITHIN ORIGINAL STIPULATED PERIOD, HOWEVER, WHERE T HE PERIOD OF LOCKDOWN M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 2 IS EXCLUDED, THE MISC. APPLICATION HAS BEEN FILED W ITHIN THE STIPULATED TIME PERIOD. IN SUPPORT, RELIANCE WAS PLACED ON TH E HONBLE SUPREME COURT DECISION DATED 23.03.2020 WHEREIN THE LIMITAT ION PERIOD IN ALL SUCH PROCEEDINGS, IRRESPECTIVE OF LIMITATION PRESCRIBED UNDER THE GENERAL LAW OR UNDER ANY SPECIAL LAWS, WHETHER COMPOUNDABLE OR NOT, SHALL STAND EXTEND W.E.F 15.03.2020 TILL FURTHER ORDERS. IT WAS FURTHER SUBMITTED THAT IN TERMS OF SUBSEQUENT ORDER DATED 22.05.2020, THE HONBLE SUPREME COURT HAS HELD THAT IN THE CASE WHERE THE LIMITATIO N EXPIRED AFTER 15.03.2020, THAN THE PERIOD FROM 15.03.2020 TILL TH E DATE ON WHICH THE LOCK DOWN IS LIFTED IN THE JURISDICTIONAL AREA WHER E DISPUTE LIES OR WHERE THE CAUSE OF ACTION ARISES SHALL BE EXTENDED FOR A PERIOD OF 15 DAYS AFTER LIFTING OF THE LOCKDOWN. IT WAS SUBMITTED THAT IN T HE PRESENT CASE, THE ASSESSEE BEING RESIDENT OF KOTA ONLY PARTIAL LOCKDO WN WAS LIFTED BY THE RAJASTHAN GOVERNMENT AND COMPLETE LOCKDOWN ONLY ON 18.01.2021. IT WAS ACCORDINGLY SUBMITTED THAT WHERE THE SAID PERIO D OF LOCK DOWN IS EXCLUDED, THE MISCELLANEOUS APPLICATION HAS BEEN FI LED WITHOUT ANY DELAY AND THE SAME MAY BE ADMITTED FOR NECESSARY ADJUDICA TION. 3. PER CONTRA, THE LD. DR FAIRLY SUBMITTED THAT AS PER THE ORDERS PASSED BY THE HONBLE SUPREME COURT, THE PERIOD OF LOCKDOWN MAY BE EXCLUDED AND THE REVENUE HAS NO OBJECTION WHERE THE MISCELLANEOUS APPLICATION IS ADMITTED BY THE BENCH. 4. HEARD BOTH THE PARTIES AND PURUSED THE MATERIAL AVAILABLE ON RECORD. WE RESPECTFULLY NOTE THAT THE HONBLE SUPRE ME IN AFORESAID SUO- MOTO MATTER HAS LAID DOWN THAT PERIOD OF LIMITATION IN ALL SUCH PROCEEDINGS, IRRESPECTIVE OF THE LIMITATION PRESCRI BED UNDER THE GENERAL LAW OR SPECIAL LAWS WHETHER CONDONABLE OR NOT SHALL STAND EXTENDED M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 3 W.E.F 15 TH MARCH 2020 TILL FURTHER ORDERS. THEREAFTER, THE HO NBLE SUPREME COURT IN TERMS OF SUBSEQUENT ORDER DATED 22.05.2020 HAS HELD THAT IN THE CASES WHERE THE LIMITATION EXPIRED AFTER 15.03.2020 , THAN THE PERIOD FROM 15.03.2020 TILL THE DATE ON WHICH THE LOCK DOWN IS LIFTED IN THE JURISDICTIONAL AREA WHERE DISPUTE LIES OR WHERE THE CAUSE OF ACTION ARISES SHALL BE EXTENDED FOR A PERIOD OF 15 DAYS AFTER LIF TING OF THE LOCKDOWN. WE ALSO TAKE NOTE OF THE FACT THAT THE MINISTRY OF LAW AND JUSTICE, GOVT. OF INDIA HAS ALSO ISSUED A NOTIFICATION DATED 31.03 .2020 WHEREIN THE DUE DATES WHICH FALLS DURING THE PERIOD 20.03.2020 TO 2 9.06.2020 HAS BEEN EXTENDED TO 30 TH JUNE, 2020 IN RESPECT OF APPEALS AND APPLICATIONS UNDER THE SPECIFIED ACT WHICH INCLUDES THE INCOME TAX ACT AND WHICH HAS FURTHER BEEN EXTENDED UP TO 31 ST DECEMBER, 2020. IN THE PRESENT CASE, DUE DATE FOR FILING THE MISCELLANEOUS APPLICATIONS U/S 254(2) BEING 30.06.2020 THAT IS, WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PRONOUNCED ON 28.09.2020 AND THE FACT THAT THE MISCELLANEOUS APPLICATION HAS BEEN FILED WITH THE R EGISTRY ON 28.09.2020, RESPECTFULLY FOLLOWING THE DECISIONS OF THE HONBLE SUPREME COURT AND THE TAXATION AND OTHER LAWS (RELAXATION OF CERTAIN PROV ISIONS) ORDINANCE, 2020 AS NOTIFIED IN THE GAZETTE OF INDIA DATED 31 ST MARCH, 2020, THE SAME IS HEREBY ADMITTED AS FILED WITHIN THE EXTENDED DUE DATE IN TERMS OF SECTION 254(2) OF THE ACT. 5. NOW COMING TO THE SUBJECT MATTER OF THE MISCELL ANEOUS APPLICATION SO FILED BY THE ASSESSEE. DURING THE COURSE OF HEAR ING, THE LD. AR SUBMITTED THAT THERE ARE CERTAIN GLARING AND PATENT MISTAKES APPARENT FROM THE FACE OF THE RECORD WHICH REQUIRES APPROPRI ATE RECTIFICATION U/S SECTION 254(2) OF THE ACT. IN THIS REGARD, IT WAS S UBMITTED THAT THE TRIBUNAL AT PAGE 12 OF ITS ORDER HAS HELD THAT THE LD. CIT(A) HAS HAS M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 4 DISCUSSED GENERAL PRINCIPLES FOR ESTIMATING THE INC OME BY APPLYING G.P RATE HOWEVER HE HAS NOT CONSIDERED THE RELEVANT SPE CIFIC FACTS HAVING INFLUENCED THE BUSINESS/TRADING OF THE ASSESSEE. IN THIS REGARD, THE LD. AR TAKEN US THROUGH THE FINDINGS OF THE LD. CIT(A) AND SUBMITTED THAT THE FINDINGS OF THE TRIBUNAL ARE COMPLETELY CONTRARY TO THE FACTS AVAILABLE ON RECORD AND INFACT, THE LD CIT(A) HAS RECORDED A DET AILED FINDING WITH REGARD TO THE FALL IN G.P RATE IN CASE OF THE ASSES SEE. IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS SUBMITTED A DETAILE D COMPARATIVE CHARTS BEFORE THE TRIBUNAL AS PART OF ITS WRITTEN SUBMISSI ON SHOWING THAT AVERAGE COST OF PURCHASE INCREASED BY RS 19.47 PER KG, HOWEVER, THE SELLING PRICE HAS INCREASED ONLY BY RS 6.50 KGS WHI CH HAS RESULTED IN LOSS IN THE YEAR UNDER CONSIDERATION AND THEREFORE, IMME DIATELY PAST A.Y 2014-15 IS NOT COMPARABLE. IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL HAS RELIED ON THE DECISIONS OF THE HONBLE RAJASTHA N HIGH COURT IN CASE OF CIT VS. GUPTA K. N. CONSTRUCTION CO. (2015) 116 DTR 377 (RAJ) AND CLARITY GOLD PVT. LTD VS. PRINCIPAL CIT, 102 TAXMAN N.COM 421 (RAJ.) WHILE PASSING THE IMPUGNED ORDER. HOWEVER, THESE DECISION S WERE NOT CITED AND ARGUED UPON BY THE EITHER SIDE AT THE TIME OF H EARING BEFORE TRIBUNAL AND THEREFORE, WHERE THE TRIBUNAL HAS RELIED ON THE SAID DECISIONS EVEN THOUGH THE DECISIONS ARE OF THE JURISDICTIONAL HIGH COURT, GIVEN THE FACT THAT THE ASSESSEE HAS NOT BEEN PROVIDED AN OPPORTUN ITY TO PRESENT ITS CASE AND THE FACT THAT THE SAID DECISIONS DOESNT L AY A LEGAL PROPOSITION THAT ONLY PAST HISTORY HAS TO BE CONSIDERED AS WRON GLY APPRECIATED BY THE TRIBUNAL RATHER IT HAS HELD THAT EITHER THE PAST HI STORY OF THE ASSESSEE OR HISTORY OF SIMILARLY SITUATED OTHER BUSINESSES TO B E CONSIDERED AND ARE THEREFORE DISTINGUISHABLE, THERE IS A CLEAR VIOLATI ON OF PRINCIPLE OF NATURAL JUSTICE WHERE THE ASSESSEE HAS NOT BEEN PROVIDED AN OPPORTUNITY TO REBUT THE SAME. IN SUPPORT, RELIANCE WAS PLACED ON THE HONBLE BOMBAY M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 5 HIGH COURT DECISION IN CASE OF INVENTURE GROWTH AND SECURITIES LTD VS ITAT [2010] 324 ITR 319. IT WAS FURTHER SUBMITTED THAT EVEN THE PAST HISTORY OF THE ASSESSEE HAS NOT BEEN CORRECTLY APPR ECIATED WHILE ESTIMATING THE GP RATE AND THE TRIBUNAL HAS COMPLET ELY OVERLOOKED THE DECLINING TREND IN THE GP RATE GIVEN THE SPECIFIC F ACTS AND CIRCUMSTANCES OF THE CASE AND HAS SIMPLY APPLIED AVERAGE G.P RATE . IT WAS ACCORDINGLY SUBMITTED THAT THESE APPARENT MISTAKES ON FACE OF T HE RECORD HAVE RESULTED IN A GREAT MISCARRIAGE OF JUSTICE AND THER EFORE, THE ORDER SO PASSED MAY BE RECALLED AND HEARD AFRESH. 6. PER CONTRA, THE LD. DR SUBMITTED THAT IN THE PRE SENT CASE, THE AO AFTER REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) HAS ESTIMATED THE INCOME BY APPLYING G.P RATE OF 3.03% AS AGAINST DECLARED G .P RATE OF 2.57% RESULTING IN TRADING ADDITION OF RS 2,28,55,077/-. ON APPEAL, THE LD CIT(A) HAS UPHELD THE REJECTION OF BOOKS OF ACCOUNT S AND HAS APPLIED THE G.P RATE OF 2.65% AND SUSTAINED THE ADDITION TO THE EXTENT OF RS 39,74,797/- AND HAS DELETED THE ADDITION TO THE EXT ENT OF RS 1,88,80,279/-. AGAINST THE ORDER OF THE LD CIT(A), THE DEPARTMENT HAS FILED AN APPEAL BEFORE THE TRIBUNAL CHALLENGING THE DELETION OF ADDITION OF RS 1,88,80,279/- AND THE ASSESSEE IN ITS CROSS OBJE CTION HAS RAISED THE GROUNDS CHALLENGING THE REJECTION OF BOOKS OF ACCOU NTS U/S 145(3) AND SUSTENANCE OF ADDITION OF RS 39,74,797/-. IT WAS S UBMITTED THAT THE ASSESSEES CROSS OBJECTION WAS DISMISSED BY THE TRI BUNAL BEING NOT MAINTAINABLE AS WELL AS BARRED BY LIMITATION AND OU R REFERENCE WAS DRAWN TO THE FINDINGS OF THE TRIBUNAL AT PARA 4 OF ITS OR DER WHERE THE TRIBUNAL HAS RECORDED A DETAILED FINDING DISMISSING THE ASSE SSEES CROSS OBJECTION AND THEREAFTER, AT PARA 9 WHERE THE TRIBUNAL HAS HE LD THAT ISSUE OF REJECTION OF BOOKS OF ACCOUNTS AND PART ADDITION SU STAINED BY THE LD M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 6 CIT(A) WHEREBY HE HAS CONSIDERED THE INCREASE IN TH E GP RATE BY 0.08% IS NOT BEFORE IT AND NOT IN DISPUTE SO FAR AS APPEA L OF THE REVENUE IS CONCERNED. IT WAS ACCORDINGLY SUBMITTED THAT SO FA R AS THE REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) AND SUSTENANCE OF ADDI TION OF RS 39,74,797/- BY THE LD CIT(A) IS CONCERNED, THE SAME HAS ATTAINED FINALITY AND THE SUBJECT MATTER OF THE PRESENT MISC. APPLICA TION IS THUS LIMITED TO THE APPEAL FILED BY THE DEPARTMENT WHERE IT HAS CHA LLENGED THE FINDINGS OF THE LD CIT(A) IN DELETING THE ADDITION OF RS 1,8 8,80,279/- AND WHICH HAS BEEN SUSTAINED BY THE TRIBUNAL VIDE THE IMPUGNE D ORDER DATED 9.12.2019. IN THIS REGARD, THE LD DR TAKEN US THRO UGH THE FINDINGS OF THE TRIBUNAL AT PARA 9 OF ITS ORDER AND SUBMITTED THAT THE TRIBUNAL HAS PASSED A DETAILED SPEAKING ORDER CONSIDERING THE DE CISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT, THE FINDINGS OF THE LD C IT(A) AS WELL AS PAST HISTORY OF THE ASSESSEE FOR DETERMINING REASONABLE BASIS FOR ESTIMATING THE G.P RATE AND THEREFORE, THERE IS NO MISTAKE WHI CH IS APPARENT ON THE FACE OF THE ORDER SO PASSED BY THE TRIBUNAL AND THE MISCELLANEOUS APPLICATION SO FILED BY THE ASSESSEE DESERVE TO BE DISMISSED. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SUBJECT MATTER OF THE PRE SENT MISC. APPLICATION IS LIMITED TO THE APPEAL FILED BY THE DEPARTMENT WH ERE IT HAS CHALLENGED THE FINDINGS OF THE LD CIT(A) IN DELETING THE ADDIT ION OF RS 1,88,80,279/- AND WHICH HAS BEEN SUSTAINED BY THE COORDINATE BENC H VIDE THE IMPUGNED ORDER DATED 9.12.2019 AND IN PARTICULAR, T HE FINDINGS AT PARA 9 OF THE SAID ORDER WHERE IT HAS DISCUSSED THE BASIS FOR ESTIMATION OF G.P RATE AFTER THE REJECTION OF THE BOOKS OF ACCOUNTS. WE HAVE CAREFULLY GONE THROUGH THE SAID FINDINGS OF THE COORDINATE BENCH A ND NOTE THAT THE COORDINATE BENCH HAS REFERRED AND RELIED ON TWO DEC ISIONS OF THE HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS GUPTA KN CON STRUCTIONS (SUPRA) M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 7 AND CLARITY GOLD PVT LTD (SUPRA). THOUGH IT IS NOT UNUSUAL FOR THE BENCH TO REFER AND RELY ON THE DECISIONS AFTER DOING ITS OWN RESEARCH AND ESPECIALLY WHERE THE DECISIONS ARE THAT OF THE HON BLE JURISDICTIONAL HIGH COURT, AT THE SAME TIME, WHERE THE RELIANCE ON THE SAID DECISIONS HAVE INFLUENCED AND RESULTED IN ARRIVING AT A FINDING IN FAVOUR OF ONE PARTY AND AGAINST THE OTHER PARTY AND A PRIMA FACIE CASE HAS BEEN BUILD THAT THE FACTS IN THOSE CASES ARE DISTINGUISHABLE, THE COURT S HAVE HELD THAT IT IS ADVISABLE THAT BOTH THE PARTIES BE CONFRONTED WITH THE SAID DECISIONS AND ALLOWED AN OPPORTUNITY TO DEAL WITH THE DECISIONS R ELIED UPON BY THE TRIBUNAL AND AFTER HEARING BOTH THE PARTIES, THE MA TTER MAY BE DECIDED. IN THIS REGARD, WE REFER TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF INVENTURE GROWTH AND SECURITIES LTD VS ITAT (SUPRA) WHERE THE HONBLE HIGH COURT HAS HELD AS UN DER: 7. WE HAVE ADVERTED TO THIS SUBMISSION SINCE WE HAD C ALLED UPON THE COUNSEL APPEARING ON BEHALF OF THE ASSESSEE TO AT LEAST PRI MA FACIE INDICATE TO THIS COURT AS TO WHETHER THERE WERE GROUNDS FOR URGING THAT TH E DECISION IN KHANDWALA FINANCE LTD.'S CASE (SUPRA) IS DISTINGUISHABLE. WE DO NOT PROPOSE TO RENDER ANY CONCLUSIVE FINDING OR EVEN AN OPINION OF THIS COURT ON THAT ASPECT OF THE MATTER. HOWEVER, IT WOULD BE NECESSARY TO NOTE THAT THE DIS TINGUISHING FEATURES IN THE CASE OF KHANDWALA FINANCE LTD. (SUPRA) WHICH HAVE B EEN POINTED OUT DURING THE COURSE OF SUBMISSIONS BY COUNSEL FOR THE ASSESS EE ARE SUFFICIENT FOR THIS COURT TO HOLD THAT AN OPPORTUNITY SHOULD BE GRANTED TO THE PETITIONER TO PLACE ITS CASE ON THE APPLICABILITY OR OTHERWISE OF THE DECIS ION IN KHANDWALA FINANCE LTD.'S CASE (SUPRA) BEFORE THE TRIBUNAL. 8. IT IS IN THESE CIRCUMSTANCES THAT WE ARE INCLINED TO ALLOW THE MISCELLANEOUS APPLICATION AND TO RESTORE THE APPEAL AND THE CROSS -OBJECTIONS FOR FRESH CONSIDERATION BEFORE THE TRIBUNAL. WE CLARIFY THAT IT CANNOT BE LAID DOWN AS AN INFLEXIBLE PROPOSITION OF LAW THAT AN ORDER OF REMA ND ON A MISCELLANEOUS APPLICATION UNDER SECTION 254(2) WOULD BE WARRANTED MERELY BECAUSE THE TRIBUNAL HAS RELIED UPON A JUDGMENT WHICH WAS NOT C ITED BY EITHER PARTY BEFORE IT. IN EACH CASE, IT IS FOR THE COURT TO CONSIDER A S TO WHETHER A PRIMA FACIE OR ARGUABLE DISTINCTION HAS BEEN MADE AND WHICH SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL. IT IS IN THIS VIEW OF THE MATTER THAT WE HAD CALLED UPON COUNSEL APPEARING ON BEHALF OF THE ASSESSEE TO AT LEAST PRI MA FACIE INDICATE BEFORE THIS COURT THE GROUNDS ON WHICH THE DECISION IN KHANDWAL A FINANCE LTD.'S CASE (SUPRA) WAS SOUGHT TO BE DISTINGUISHED. IF WE WERE TO BE OF THE VIEW THAT THE DECISION IN KHANDWALA FINANCE LTD.'S CASE (SUPRA) W AS SQUARELY ATTRACTED TO THE FACTS OF THE PRESENT CASE, WE MAY NOT HAVE BEEN INC LINED TO REMAND THE M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 8 PROCEEDINGS. AN ORDER OF REMAND CANNOT BE AN EXERCI SE IN FUTILITY. HOWEVER, FOR THE REASONS WHICH WE HAVE ALREADY INDICATED, WE FIN D PRIMA FACIE THAT PREJUDICE WOULD BE SUSTAINED BY THE PETITIONER BY DENYING HIM AN OPPORTUNITY TO DEAL WITH THE DISTINGUISHING FEATURES IN THE CASE OF KHANDWAL A FINANCE LTD. (SUPRA). 9. FOR ALL THESE REASONS, WE ALLOW THE PETITION BY SE TTING ASIDE THE IMPUGNED ORDER OF THE TRIBUNAL DATED 20-11-2009. MISCELLANEO US APPLICATION NO. 515/MUM./09 IS ACCORDINGLY ALLOWED. THE ORDER OF TH E TRIBUNAL DATED 30-5- 2008 ON THIS ISSUE IS ACCORDINGLY RECALLED AND BOTH THE APPEAL AND THE CROSS- OBJECTIONS SHALL STAND RESTORED TO THE FILE OF THE TRIBUNAL FOR A FRESH DECISION ON MERITS. ALL THE RIGHTS AND CONTENTIONS OF THE PARTI ES ON MERITS ARE KEPT OPEN TO BE URGED IN THE APPEAL AND THE CROSS-OBJECTIONS. 8. IN THE AFORESAID DECISION, THE HONBLE HIGH COUR T HAS HELD THAT IT CANNOT BE LAID DOWN AS AN INFLEXIBLE PROPOSITION OF LAW THAT AN ORDER OF REMAND ON A MISC. APPLICATION UNDER SECTION 254(2) WOULD BE WARRANTED MERELY BECAUSE THE TRIBUNAL HAS RELIED UPON A JUDGM ENT WHICH WAS NOT CITED BY EITHER PARTY BEFORE IT. IN EACH CASE, IT I S FOR THE COURT TO CONSIDER AS TO WHETHER A PRIMA FACIE OR ARGUABLE DISTINCTION HAS BEEN MADE AND WHICH SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL. IN THE PRESENT CASE, WE FIND THAT THE COORDINATE BENCH HAS REFERRED AND RELIED UPON THE AFORESAID TWO DECISIONS OF THE HONBLE RAJASTHAN HI GH COURT WHICH HAVE NOT BEEN RELIED UPON OR QUOTED BY EITHER OF THE PAR TIES. THE LD AR HAS CONTENDED THAT SAID DECISIONS DOESNT LAY A GENERAL LEGAL PROPOSITION THAT ONLY PAST HISTORY HAS TO BE CONSIDERED RATHER IT HA S HELD THAT EITHER THE PAST HISTORY OF THE ASSESSEE OR HISTORY OF SIMILARL Y SITUATED OTHER BUSINESSES TO BE CONSIDERED AND WE THEREFORE PRIMA FACIE FIND THAT SUCH DISTINGUISHING FEATURES AS POINTED OUT BY THE LD AR HAS ESCAPED THE ATTENTION OF THE COORDINATE BENCH AND WHICH COULD H AVE BEEN CONSIDERED HAD THE SAID DECISIONS BEING CONFRONTED TO BOTH THE PARTIES AND AN OPPORTUNITY BEEN GIVEN TO THEM TO FILE THEIR RESPEC TIVE SUBMISSIONS ON APPLICABILITY OR DISTINGUISHING FEATURES OF THE SAI D DECISIONS. FURTHER, THE LD AR HAS SUBMITTED SOME DISTINGUISHING FEATURES WH ICH HAS RESULTED IN FALL IN G.P RATE DURING THE YEAR UNDER CONSIDERATIO N AND NON-COMPARABILITY M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 9 WITH THE PAST YEARS WHICH ALSO SEEMS TO HAVE ESCAPE D THE ATTENTION OF THE COORDINATE BENCH. 9. IN VIEW OF THE AFORESAID DISCUSSIONS AND IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF THE CASE, WE DEEM IT APPROPRIATE T HAT THE ORDER SO PASSED BY THE COORDINATE BENCH IN ITA NO. 479/JP/20 19 BE RECALLED AND MATTER BE HEARD AFRESH FOR THE PURPOSES OF ADJUDICA TION OF GROUND OF APPEAL TAKEN BY THE REVENUE RELATING TO DELETION OF ADDITION OF RS 1,88,80,279 OUT OF TOTAL ADDITION OF RS 2,28,55, 077 AFTER PROVIDING OPPORTUNITY TO BOTH THE PARTIES TO PRESENT ITS CASE . 10. THE REGISTRY IS DIRECTED TO LIST THE MATTER IN DUE COURSE. ISSUE NOTICE. IN THE RESULT, MISCELLANEOUS APPLICATION SO FILED BY THE ASSESSEE IS DISPOSED OFF IN LIGHT OF AFORESAID DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 05/04/2021. SD/- SD/- LANHI XKSLKBZ FOE FLAG ;KNO ( SANDEEP GOSAIN ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 05/04/2021. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S SHIV EDIBLES LIMITED, KOTA 2. IZR;FKHZ@ THE RESPONDENT- ACIT, CIRCLE-1, KOTA 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. M.A. NO. 66/JP/2020 M/S SHIV EDIBLES LIMITED, KOTA VS. ACIT, CIRLCE -1, KOTA 10 6. XKMZ QKBZY@ GUARD FILE {M.A NO. 66/JP/2020} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR