M/s. Aishwarya Construction Co., Aurangabad V. Assistant Commissioner of Income-tax, Circle - 2, Aurangabad

MA 71/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6311 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-01-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 29-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K VERMA

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . , , BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / MA NO.71/PUN/2018 (ARISING OUT OF ITA NO.2036/PUN/2014) / ASSESSMENT YEAR : 2010-11 M/S. AISHWARYA CONSTRUCTION COMPANY, GAT NO.103, BEED BYE-PASS ROAD, AURANGABAD PAN : AAJFA4444R . / APPLICANT V/S A CIT, CIRCLE - 2 , AURANGABAD . / RESPONDENT / APPLICANT BY : SHRI M.K. KULKARNI / RESPONDENT BY : S SHRI M.K. VERMA / ORDER PER KARUNAKARA RAO, AM : THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARISES FROM THE ORDER OF TRIBUNAL DATED 09-03-2018 VIDE ITA NO.2036 /PUN/2014 FOR THE ASSESSMENT YEAR 2010-11. 2. BRINGING OUR ATTENTION TO THE ORDER OF TRIBUNAL DATED 09-03-2018 IN THE APPEAL FILED BY THE REVENUE, LD. COUNSEL FOR THE AS SESSEE SUBMITTED THAT THE APPEAL IS ALLOWED FOR STATISTICAL PURPOSES AS EVIDE NT FROM PARA NO.9 OF THE ORDER OF TRIBUNAL. TRAVELLING US THROUGH VARIOUS P ARAS, LD. COUNSEL SUBMITTED THAT THE ORDER OF TRIBUNAL, WHEN GIVEN EFFECT, MAY RESULT IN ENHANCEMENT OF THE ASSESSMENT AS IN THE OTHER CASE OF GROUP CONCER N NAMED M/S. / DATE OF HEARING :25-01-2019 / DATE OF PRONOUNCEMENT: 28-01-2019 2 AMBARWADIKAR & COMPANY. LD. COUNSEL BROUGHT OUR AT TENTION TO GROUND OF APPEAL NO.11 OF THE APPEAL IN THE CASE OF M/S. AMBA RWADIKAR & COMPANY. FURTHER, HE SUBMITTED THAT, IN THAT CASE ALSO, A DI RECTION TO SET-ASIDE FOR STATISTICAL PURPOSE THE APPEAL OF THE ASSESSEE WAS BROUGHT TO OUR NOTICE. HE ALSO SUBMITTED THAT, IN THAT CASE ALSO, AN MA WAS F ILED BY M/S. AMBARWADIKAR & COMPANY, ON THE SIMILAR REASONING T HAT THE ORDER OF TRIBUNAL MAY RESULT IN ENHANCEMENT OF ASSESSMENT, THE POWERS WHICH THE TRIBUNAL DOES NOT HAVE. 3. FURTHER, TAKING US THROUGH THE M.A. ORDER IN THE CASE OF M/S. AMBARWADIKAR & COMPANY VIDE MA NOS.87 & 88/PUN/2018 , DECIDED ON 17- 12-2018, LD. COUNSEL DEMONSTRATED THE DISMISSAL OF THE MA ON THE GROUND OF SUSPICION OR DOUBT OF LIKELY ENHANCEMENT OF INCOME IS A CASE OF MERE PRESUMPTION AND SURMISES AND THEREFORE, THE SAME IS OUTSIDE THE PURVIEW OF SECTION 245(2) OF THE I.T. ACT. 4. COMING TO THE PRESENT MA, ON HEARING BOTH THE SI DES AND ON PERUSAL OF THE MA ORDER OF THE TRIBUNAL DATED 17-12-2018 IN TH E CASE OF M/S. AMBARWADIKAR & COMPANY, WE FIND THE RATIO LAID DOWN BY IN THE SAID MA PROCEEDINGS IS SQUARELY APPLICABLE TO THE PRESENT M A TOO. FOR THE SAKE OF CONVENIENCE, PARA NO.6 OF THE SAID MA ORDER OF THE TRIBUNAL IS EXTRACTED BELOW : 6. WE HAVE HEARD BOTH THE SIDES ON THIS LIMITED IS SUE OF REQUIREMENT OF RECTIFICATION OF THE ORDER OF THE TR IBUNAL ON THE BASIS OF POSSIBLE ENHANCEMENT OF INCOME BY THE CIT(A). WE F IND THE ORDER OF CIT(A) HAS NOT YET GIVEN EFFECT TO THE DIRECTION OF THE TRIBUNAL LEADING TO THE ENHANCEMENT OF INCOME. IT IS MERE SUSPICION AND SURMISES OF THE ASSESSEE THAT AN INCOME MAY BE ENHANCED IN THE REMAND PROCEEDINGS BY THE CIT(A). IN OUR VIEW, THE RECTIF ICATION REQUEST OF THE ASSESSEE ON THE BASIS OF MERE PRESUMPTION AND S URMISES IS UNSUSTAINABLE AND THE SAME IS OUTSIDE FROM THE SCOP E OF THE PROVISIONS OF SECTION 245(2) OF THE ACT. THEREFORE, THE PRAYE R MADE BY THE ASSESSEE IN BOTH THE MISCELLANEOUS APPLICATIONS STA NDS DISMISSED. 3 FROM THE FACTS OF THE PRESENT CASE AS WELL AS FROM THE STATED LEGAL PROPOSITIONS, IN THE CASE OF ITS OWN GROUP CONCERNS , NO MA IS SUSTAINABLE BASED ON THE PRESUMPTIONS OR FORECASTING OF FUTURE EVENTS. CONSIDERING THE ABOVE DISCUSSION AND FINDING OF FACT, WE ARE OF THE OPINION THAT THE PRESENT MA IS REQUIRED TO BE DISMISSED. ACCORDINGLY, THE M A FILED BY THE APPLICANT IS DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE APPLICANT IS DISMISSED. ORDER PRONOUNCED ON THIS 28 TH DAY OF JANUARY, 2019 SD/- SD/- (VIKAS AWASTHY) (D. KARUNAKARA RAO) /JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 28 TH JANUARY, 2019 / COPY OF THE ORDER FORWARDED TO : / BY ORDER , // TRUE COPY // SENIOR PRIVATE SECRETARY , / ITAT, PUNE 1. / THE APPELLANT 2. / THE RESPONDENT 3. 4. 5. CIT(A), AURANGABAD CIT, AURANGABAD % , , B BENCH PUNE; 6. / GUARD FILE. 4 DATE 1. DRAFT DICTATED ON 25-01-2019 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 25-01-2019 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. DATE OF UPLOADING ORDER SR.PS 8. FILE SENT TO THE BENCH CLERK SR.PS 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK 10. DATE ON WHICH FILE GOES TO THE A.R. 11. DATE OF DISPATCH OF ORDER.