The ITO, Ward,-6(1), Surat V. Shri Ashok B. Modi, Surat

MA 75/AHD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2243 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-09-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 08-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. NO.75/AHD/2014 (ARISING OUT OF ITA NO.1060/AHD/2008) THE INCOME-TAX OFFICER, WARD-6(1) SURAT VS SHRI ASHOKKUMAR B. MODI, 97-98, GIDC, PANDESARA, SURAT PAN : ABPPM 9008 A (APPELLANT) (RESPONDENT) REVENUE BY : SHRI V.K. SINGH, SR. D.R. ASSESSEE(S) BY : NONE / // / DATE OF HEARING : 05/09/2014 / DATE OF PRONOUNCEMENT: 12/09/2014 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE ON 08.05.2014 ARISING OUT OF THE ORDER OF THE TRIBUNAL DATED 20.04.2012 IN ITA NO.1060/AHD/2008. IN THIS MISCELLANEOUS APPLICA TION, THE MAIN GRIEVANCE OF THE REVENUE IS THAT THE REASON FOR PAS SING THE SECOND ORDER DATED 20.04.2012 IT IS NOWHERE MENTIONED IN THE SEC OND ORDER OF THE TRIBUNAL. 2. THE LD. SR. DR SUBMITTED THAT FROM THE READING O F THE ORDER DATED 20.04.2012 PASSED IN ITA NO.1060/AHD/2008, IT IS NO T CLEAR THE REASON AS TO HOW THE ORDER CAME TO BE PASSED. NO ONE MADE AP PEARANCE ON BEHALF OF THE ASSESSEE; HOWEVER, WRITTEN SUBMISSIONS OF TH E ASSESSEE DATED 03.09.2014 IS ON RECORD, WHICH READS AS UNDER:- MAY IT PLEASE TO YOUR HONOUR MA NO.75/AHD/2014 IN ITA NO.1060/AHD/2008 SHRI ASHOKKUMAR B. MODI - 2 - 1. PLEASE REFER TO THE MISCELLANEOUS APPLICATION N O. 75/A/2014, ARISING OUT OF THE ITAT AHMEDABAD 'C' BENCH'S ORDER IN ITA NO. 1060/A/2008 DATED 20.04.2012. IN THIS CONNECTIO N WE MAKE THE FOLLOWING SUBMISSION: 2. IN THE MISCELLANEOUS APPLICATION THE ID. ASSESS ING OFFICER AT PARA NO. 4.2 OBSERVED AS UNDER: 'BEING AGGRIEVED, THE ASSESSEE WENT UP IN APPEAL BE FORE THE CIT(A) VIDE ORDER DATED 31.12.2007, THE ID. CIT(A) HAS CONFIRMED THE ACTION OF THE AO. THE ASSESSEE CARRIE D THE MATTER IN FURTHER APPEAL BEFORE THE ITAT. THE HON'BLE ITAT , AHMEDABAD BENCH 'C' VIDE ITS ORDER DATED 24.09.2010 IN ITA NO. 1060/A/2008 HAS DISMISSED THE APPEAL OF THE ASS ESSEE. THEREAFTER ANOTHER ORDER DATED 20.04.2012 IN SAME I TA NO. 1060/A/2008 HAD BEEN RECEIVED FROM THE HONOURABLE I TAT WHEREIN APPEAL OF THE ASSESSEE WAS PARTLY ALLOWED. THE REASON FOR PASSING THE SECOND ORDER DATED 20.04.2012 IS NO WHERE MENTIONED IN THE SAID ORDER OF THE HON'BLE ITAT. TH US, A MISTAKE APPARENT FROM RECORD HAS CREPT IN PASSING T HE AFORESAID ORDER OF HON'BLE ITAT.' 3. IN FACT, IN THE ORIGINAL ORDER OF THE HONOURABL E TRIBUNAL IN ITA NO. 1060/A/2008 DATED 24.09.2010, THE GROUND REGARD ING THE GROSS PROFIT ADDITION WAS NOT DECIDED AND THEREFORE ASSESSEE FILED THE MA NO. 236/A/2010 RAISING THE GRIEVANCE T HAT ONE OF THE GROUND BEFORE THE TRIBUNAL WAS IN RESPECT OF ES TIMATED GROSS PROFIT ADDITION, HOWEVER, THAT GROUND WAS NOT DECIDED THEREFORE A MISTAKE WAS COMMITTED. 4. THE HONOURABLE TRIBUNAL PASSED THE ORDER IN MA N O. 236/A/2010 ON 31.10.2011 AND THE ORIGINAL ORDER OF HONOURABLE ITAT WAS RECALLED FOR THE LIMITED PURPOS E FOR ADJUDICATION OF GROUND OF ADDITION FOR GROSS PROFIT . THEREFORE THE NEW ORDER WAS PASSED ON 20.04.2012. IT IS TO BE NOTED THAT IN THE HEARING OF THE MA NO.236/A/2010, THE ID. SEN IOR DR WAS PRESENT AT THE TIME OF THE HEARING FIXED ON 23.09.2 011. FURTHER AT THE TIME OF THE HEARING ON 10.04.2012 OF THE APP EAL FOR DECIDING THE GROUND OF GROSS PROFIT ADDITION, THE I D. SR. DR WAS ALSO PRESENT. THE PRESENCE OF THE ID. SR. DR WERE R ECORDED IN ALL THE ORDERS PASSED BY HONOURABLE TRIBUNAL. MA NO.75/AHD/2014 IN ITA NO.1060/AHD/2008 SHRI ASHOKKUMAR B. MODI - 3 - 5. THE ASSESSING OFFICER HAS ALSO FILED ANOTHER MA NO. 76/A/2014 ARISING OUT OF THE ITA NO. 219/A/2013. THIS MA IS I N RESPECT OF THE PENALTY CANCELLED BY THE HONOURABLE TRIBUNAL. I N THIS MA ALSO THE SAME GRIEVANCE WAS RAISED BY THE ASSESSING OFFICER THAT ANOTHER ORDER DATED 20.04.2012 IN SAME ITA NO. 1060/A/2008 WAS PASSED BY HONOURABLE TRIBUNAL AND T HE REASON FOR PASSING THE SECOND ORDER DATED 20.04.201 2 IS NOWHERE MENTIONED IN THE ORDER OF THE HONOURABLE IT AT. BUT AS STATED ABOVE ANOTHER ORDER WAS PASSED BECAUSE OF ALLOWING OF ASSESSEES MA NO.236/A/2010 BY HONOURABLE ITAT. 6. THE HONOURABLE TRIBUNAL PASSED THE ORDER IN ITA NO. 219/A/2013 ON 16.09.2013 CANCELLING THE PENALTY U/S . 271(1)(C) BASED ON NEW ORDER IN ITA NO. 1061/A/2008 PASSED ON 20.04.2012 WHICH AS STATED ABOVE IS PERFECTLY VALID . 7. WE THEREFORE PRAY THAT BOTH THE MA NO. 75/A/2014 & 76/A/2014 MAY PLEASE BE DISMISSED. 3. WE HAVE HEARD THE SR. DR AND GONE THROUGH THE WR ITTEN SUBMISSIONS FILED BY THE ASSESSEE. THE UNDISPUTED FACTS REMAINS THAT IN ITA NO.1060AHD/2008, THE ORDER DATED 24.09.2010 WAS PASSED THEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED. SUBSEQUEN TLY, THE MISCELLANEOUS APPLICATION NO.236/AHD/2010 WAS FILED BY THE ASSESSEE ON THE GROUND THAT ONE OF THE GROUNDS RAISED BY THE ASSESSEE WAS NOT DECIDED. THE MISCELLANEOUS APPLICATION NO.236/AHD/2 010 FILED BY THE ASSESSEE WAS ALLOWED AND THE ORIGINAL ORDER OF THE TRIBUNAL WAS RECALLED FOR THE LIMITED PURPOSE FOR ADJUDICATION ON GROUND OF ADDITION FOR GROSS PROFIT. CONSEQUENTLY, ANOTHER ORDER DATED 20.04.201 2 IN ITA NO.1060/AHD/2008 CAME TO BE PASSED WHEREBY THE APPE AL OF THE ASSESSEE WAS PARTLY ALLOWED. IT TRANSPIRED FROM RECORDS THAT THE DEPARTMENTAL REPRESENTATIVE WAS PRESENT ON THE DATE OF HEARING W HEN THE MISCELLANEOUS APPLICATION NO.236/AHD/2010 WAS FIXED FOR HEARING ON 23.09.2011. SUBSEQUENTLY, THE ORDER DATED 31.10.201 1 WAS PASSED. MA NO.75/AHD/2014 IN ITA NO.1060/AHD/2008 SHRI ASHOKKUMAR B. MODI - 4 - UNDER THESE FACTS, WE DO NOT FIND ANY MISTAKE CREPT INTO THE ORDER PASSED IN ITA NO.1060/AHD/2008 DATED 20.04.2012. THEREFORE , THE APPLICATION FOR RECALLING THE ORDER DATED 20.04.2012 IS REJECTE D. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 4. IN THE RESULT, THE PRESENT MISC. APPLICATION OF THE REVENUE IS DISMISSED. SD/- SD/- (N.S. SAINI) (KUL BHARAT) ACCOUNTANT MEMBER JUD ICIAL MEMBER AHMEDABAD; DATED 12/09/2014 *BT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT. 3. #$#% ' '& / CONCERNED CIT 4. ' '&() / THE CIT(A)-III, AHMEDABAD 5. )*' %, ' ' % , ,-$ / DR, ITAT, AHMEDABAD 6. *./ 0 / GUARD FILE. / BY ORDER, TRUE COPY 1 11 1/ // /,' #2 ,' #2 ,' #2 ,' #2 ( DY./ASSTT.REGISTRAR) ' ' % ' ' % ' ' % ' ' % , , , , ,-$ ,-$ ,-$ ,-$ / ITAT, AHMEDABAD