Sh. Vijay Kumar Sharma, Amritsar. V. The Assistant Commissioner of Income Tax, Amritsar.

MA 71/ASR/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2232 (ITAT-AMRITSAR)
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 06-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.71(ASR)/2014 (ARISING OUT OF I.T.A. NO.439(ASR)/2012) ASSESSMENT YEAR:2006-07 PAN :ADDPS2145Q SH. VIJAY KUMAR SHARMA, PROP. VS. INCOME TAX OFFIC ER, M/S. NATIONAL MOTORS, WARD 4(1), AMRITSAR. 10-11, COURT ROAD, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. P.N. ARORA, ADVOCATE RESPONDENT BY:SH. TARSEM LAL, DR DATE OF HEARING: 05/09/2014 DATE OF PRONOUNCEMENT:05/09/2014 ORDER PER B.P.JAIN, AM ; THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES OUT OF ORDER OF THE TRIBUNAL, DATED 24.02.2014 PASSED IN ITA NO.4 39(ASR)/2012 FOR THE ASSESSMENT YEAR 2006-07. IN THE MISCELLANEOUS APPL ICATION, THE ASSESSEE HAS SUBMITTED AS UNDER: THIS MISC. APPLICATION ARISES OUT OF ORDER VIDE I TA NO.439(ASR)/2012 DATED 24./02/2014 RELEVANT TO ASSE SSMENT YEAR 2006-07. IN THIS CONNECTION, IT MAY BE POINTED OUT THAT BEFORE THE LD. MA NO.71(ASR)/2014 2 TRIBUNAL, GROUNDS OF APPEAL NO. 6 & 7 WERE RAISED WHICH ARE REPRODUCED HEREUNDER: 6. AGAIN, THE AO HAS GROSSLY ERRED IN MAKING THE A DDITION OF RS.1,06,000/- ON ACCOUNT OF SO CALLED UNDER VALU ATION OF MATERIAL CONSUMED. THE LD. CIT(A) HAS GROSSLY ERRED IN CONFIRMING THE SAME WITHOUT APPRECIATING THE FACTS AS THIS ADDITION HAS BEEN MADE WITHOUT ANY RHYME & REASON. AS SUCH, THE ADDITION OF RS.1,06,000/- MADE BY THE AO AND CO NFIRMED BY THE LD. CIT(A) MAY BE DELETED. 7. AGAIN, THE AO HAS GROSSLY ERRED IN CONFIRMING T HE DISALLOWANCE OF RS.69,310/- ON ACCOUNT OF CAR DEPRE CIATION AS CLAIMED SHOULD HAVE BEEN ALLOWED IN TOTO. ALTERNATIVELY, THE DISALLOWANCE OF CAR DEPRECIATIO N IS VERY HIGH & EXCESSIVE. WHEREAS THE TRIBUNAL WHILE DECIDING THE CASE, ADJU DICATE THE GROUND OF APPEAL NO.6 & 7 AND MIXED BOTH THE GROUNDS OF AP PEAL IN PARA 8, WHICH IS REPRODUCED AS UNDER: 8. AS REGARDS THE DISALLOWANCE OF RS.1,06,000 ON A CCOUNT OF UNDER VALUATION OF THE MATERIAL CONSUMED, WHICH HAS BEEN RESTRICTED TO 1/6 TH ON ACCOUNT OF PERSONAL ELEMENT, THE SAME IS FOUND TO BE RIGHTLY ALLOWED. IN THE FACTS AND CIRCU MSTANCES OF THE PRESENT CASE, WE DO NOT INTERFERE IN THE ORDER OF THE LD. CIT(A) WHO HAS RIGHTLY UPHELD THE SAME. THUS, THE A PPEAL OF THE ASSESSEE IS PARTLY ALLOWED AS FAR AS THE DISALLOWANCE OF RS.1,06,000/- ON ACCO UNT OF UNDER VALUATION OF MATERIAL CONSUMED IS CONCERNED, IT MAY BE POINTED OUT THAT THIS IS A SEPARATE ISSUE. THIS POINT WAS ARGUE D AT GREAT LENGTH BEFORE YOUR HONOUR AND WAS ALSO MENTIONED IN THE WR ITTEN SUBMISSIONS, WHICH IS REPRODUCED HEREUNDER: (1) AGAIN, THE A.O. HAS MADE AN ADDITION OF RS.1,06 ,000 ON ACCOUNT OF UNDER VALUATION OF THE MATERIAL CONSUMED WHICH IS WRONG & AGAINST THE FACTS OF THE CASE. IN THE TRADING ACC OUNT OF M/S. SHREE VEE JAY BUILDERS & DEVELOPERS, THE OPENING STOCK HA S BEEN SHOWN AT MA NO.71(ASR)/2014 3 RS.11,91,000/- WHEREAS THE MATERIAL CONSUM,ED HAS B EEN SHOWN AT RS13,94,000/- RESULTING TO GROSS PROFIT OF RS.2,03, 000/-. IN THIS REGARD, A REPLY WAS DULY SUBMITTED WHICH IS REPRODUCED HERE UNDER: THAT ASSESSEE HAS ALSO BEEN CARRYING BUSINESS OF C ONSTRUCTING BUILDINGS/ SHOPS UNDER THE NAME M/S. SHREE VEE JAY BUILDERS AND DEVELOPERS. DURING THE RELEVANT YEAR NO CONSTRU CTION WAS CARRIED DUE TO INTERVENTION OF MCA AND STATE GOVERN MENT AND THE ASSESSEE DECIDED TO DISPOSE OFF THE STOCK OF BU ILDING MATERIAL, THE COMPLETE COPY OF ACCOUNT OF MATERIAL CONSUMED IS ENCLOSED HEREWITH.. THE AO HAS MADE THE ADDITION OF RS.1,06,000/- WITH OUT ANY BASIS AND RHYME & REASON. IN THIS CONNECTION, IT MA Y BE POINTED OUT THAT UNDER THE PECULIAR CIRCUMSTANCES, THE ASSESSEE HAS TO STOP THE CONSTRUCTION WORK DUE TO THE INTERVENTION OF MCA & STATE GOVT. AS SUCH THE ADDITION MADE AT RS.1,06,000/- MAY KINDLY BE DELETED. THUS, IT IS VERY RESPECTFULLY PRAYED THAT PARA 8 OF THE ORDER OF THE LD. BENCH MAY BE RECALLED AND MODIFIED ACCORDINGLY AND THE ADDITION OF RS.1,06,000/- MAY KINDLY BE DELETED. THIS MISC. APPLICATION IS WITHIN FOUR YEARS FROM TH E DATE OF PASSING THE ORDER OF THE TRIBUNAL. THE NECESSARY MISC. APP LICATION FEE FOR RS.50/- HAS ALSO BEEN PAID AND THE NECESSARY CHALLA N IS ENCLOSED HEREWITH. IN VIEW OF THESE CIRCUMSTANCES, THIS MISC . APPLICATION MAY KINDLY BE ACCEPTED. DATED: 5 TH MAY,2014 SD/- (ASSESSEE) 2. THE LD. DR OPPOSED THE REQUEST OF THE ASSESSEE FOR RECALLING THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE FIND THAT GROUNDS NO. 6 & 7 RAISED BY THE ASSESS EE HAVE NOT BEEN DECIDED MA NO.71(ASR)/2014 4 IN OUR ORDER DATED 24/02/2014 PASSED IN ITA NO.439( ASR)/2012 FOR THE ASSESSMENT YEAR 2006-07 AND THIS IS A MISTAKE APPAR ENT FROM RECORD.. ACCORDINGLY, WE RECALL THE ORDER OF THIS BENCH DAT ED 24/02/2014 FOR THE PURPOSE OF DECIDING GROUNDS NO. 6 & 7 AND FIX THE A PPEAL FOR HEARING ON 20.10.2014. NO SEPARATE NOTICE BE ISSUED TO THE PAR TIES AS THE DATE WAS PRONOUNCED IN THE COURT. 4. IN THE RESULT, M.A.NO.71(ASR)/2014 OF THE ASSESS EE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH SEPTEMBER, 2014. SD/- SD/- (A.D.JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 5 TH SEPTEMBER, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH.VIJAY KUMAR SHARMA, AMRITSAR. 2. THE ITO WARD 4(1), ASR. 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR