Sarvoday hardware Pvt.Ltd., Anand V. The ACIT.,Anand Circle, Anand

MA 86/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8496 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 23-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M G PATEL
• Section: 143(3)

Judgement Text

, , , , D, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH . .. . . .. . , !' !' !' !', , , , #$ %&'( #$ %&'( #$ %&'( #$ %&'(, , , , )* + )* + )* + )* + ) ' ) ' ) ' ) ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND ANIL CHATURVEDI, ACCOUNTANT MEMBER) MA NOS.86/AHD/2012 IN ITA NO.639/AHD/2009 [ASSTT.YEAR : 2004-2005] SARVODAY HARDWARE PVT. LTD. KASHI ESTATE, GAMI VAD STATION ROAD ANAND 388 001. PAN : AAHCS 5652 Q /VS. ACIT, ANAND CIRCLE ANAND. ( (( (-. -. -. -. / APPELLANT) ( (( (/0-. /0-. /0-. /0-. / RESPONDENT) 1& 2 3 )/ ASSESSEE BY : SHRI M.G. PATEL + 2 3 )/ REVENUE BY : SHRI SAMIR TEKRIWAL 5 2 &(*/ DATE OF HEARING : 15 TH JUNE, 2012 678 2 &(*/ DATE OF PRONOUNCEMENT : 22-6-2012 )9 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: BY THIS MISC. APPLICATION, THE ASSESSEE HAS REQUESTED FOR RECTIFI CATION OF THE ORDER OF THE TRIBUNAL IN THE APPEAL OF THE ASSESSEE FOR THE ASSTT.YEAR 2004-2005 IN ITA NO.639/AHD/2009 DATED 30.12.2011. MA NOS.86/AHD/2012 -2- 2. THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITT ED THAT IN THE OPERATIVE PARA-4 OF THE TRIBUNAL ORDER DATED 30.12. 2011, THE TRIBUNAL INADVERTENTLY DIRECTED THE AO TO APPLY GP RATE OF 5 % ON THE DECLARED TURNOVER . HE SUBMITTED THAT IN FACT THE DIRECTION TO APPLY 5% GP RATE WAS WITH REGARD TO THE UNDECLARED TURNOV ER AND THE MISTAKE HAS RESULTED IN GROSS INJUSTICE TO THE ASSE SSEE. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MISTAKE HAS RESULTED IN ENHANCEMENT OF THE TAXABLE INCOME OF THE ASSESSEE, AS THE ASSESSED INCOME IN THIS CASE WAS RS.13,69,830/- WHICH HAS BE EN ENHANCED TO RS.21,51,830/- BY THE AO WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL VIDE HIS ORDER DATED 23.03.12. HE SUBMITT ED THAT THE TRIBUNAL HAS NO POWER TO MAKE ENHANCEMENT OF INCOME . HE FURTHER SUBMITTED THAT THE QUANTITATIVE DETAILS WERE MAINTA INED BY THE ASSESSEE WHICH COULD NOT BE CONTROVERTED ON BEHALF OF THE RE VENUE AND NO UNACCOUNTED PURCHASES HAVE BEEN DEBITED, AND THEREF ORE, IT IS LOGICAL THAT ONLY A FLAT RATE OF PROFIT COULD BE APPLIED TO THE UNACCOUNTED TURNOVER OF THE ASSESSEE. HE SUBMITTED THAT IN TH E LAST LINE OF THE TRIBUNAL ORDER, THE TRIBUNAL HAS HELD THAT THE APPE AL OF THE ASSESSEE STANDS PARTLY ALLOWED WHICH SHOWS THAT THE TRIBUN AL INTENDED TO GIVE PART RELIEF TO THE ASSESSEE. THE LEARNED DR H AS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE . HE VEHEMENTLY ARGUED THAT THE ACCOUNT BOOKS OF THE ASSESSEE WERE NOT RELIABLE AND WERE RIGHTLY REJECTED BY THE TRIBUNAL. HE SUBMITTE D THAT THE ENTIRE UNDISCLOSED SALE FIGURE OF RS.11,21,793/- HAS TO BE ADDED AS INCOME OF THE ASSESSEE AS THE CORRESPONDING EXPENSES HAVE ALR EADY BEEN DEBITED BY THE ASSESSEE AND THE UNACCOUNTED TURNOVER FIGURE REPRESENTS UNDISCLOSED PROFIT OF THE ASSESSEE. HE SUBMITTED T HAT THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION AND PASSED A SPEAKING OR DER, AND THEREFORE, MA NOS.86/AHD/2012 -3- EVEN IF THERE IS A MISTAKE IN THE OPINION OF THE AS SESSEE, THE REMEDY LIES ELSE-WHERE AND NOT BEFORE THE TRIBUNAL, WHICH HAS NO POWER TO REVIEW ITS OWN DECISION. HE SUBMITTED THAT THE TRI BUNAL HAS CONSIDERED THE GP RATE AT 2.09% ON THE DECLARED SAL ES OF THE PROCEEDING ASSESSMENT YEAR AND HAS DIRECTED THE AO TO APPLY THE GP RATE OF 5% ON DECLARED TURNOVER. HE SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AND THE MISC. APPLICATION MOVED BY THE ASSESSEE IS DEVOID OF ANY MERIT. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND HAVE PE RUSED THE ORDER OF THE TRIBUNAL DATED 30.12.2011 AND CONTENTS OF THE MA DATED 12.4.2012 PREFERRED BY THE ASSESSEE. WE FIND THA T AN APPARENT MISTAKE HAS OCCURRED IN THE ORDER OF THE TRIBUNAL D ATED 30.12.2011. IT IS WELL SETTLED THAT THE TRIBUNAL HAS NO POWER OF E NHANCEMENT OF INCOME AND THE ORDER OF THE TRIBUNAL IN THIS CASE H AS RESULTED IN ENHANCEMENT OF THE INCOME TO RS.21,51,830/- AS AGAI NST THE ASSESSEES INCOME UNDER SECTION 143(3) OF THE ACT AT RS.13,69, 830/-. THE ASSESSEE HAS FILED THE COPY OF THE ORDER GIVING EFF ECT TO THE ORDER OF THE TRIBUNAL PASSED BY THE AO ON 23.3.12 WHEREIN TH E ASSESSED INCOME UNDER SECTION 143(3) AT RS.13,69,830/- HAS B EEN ENHANCED TO RS.21,51,830/-. EVEN ON MERITS, THE MISTAKE IN THE ORDER OF THE TRIBUNAL IS APPARENT AS THERE WAS NO ISSUE IN THE G ROUND OF THE APPEAL OF THE ASSESSEE REGARDING GP RATE WITH RESPECT TO T HE DECLARED TURNOVER OF THE ASSESSEE. THE ONLY DISPUTE IN THE SOLITARY GROUND OF THE APPEAL OF THE ASSESSEE WAS WITH REGARD TO LEGAL ITY OF THE ADDITION OF RS.11,21,791/- IN RESPECT OF UNACCOUNTED SALES. THE ASSESSEE HAS MAINTAINED QUANTITATIVE DETAILS AND NO DEFECT IN TH E QUANTITATIVE DETAILS OF THE ASSESSEE COULD BE BROUGHT ON RECORD ON BEHAL F OF THE REVENUE. ACCORDINGLY, IT COULD NOT BE SAID THAT THE PURCHASE PRICE OF THE GOODS MA NOS.86/AHD/2012 -4- SOLD AS UNACCOUNTED SALES, WERE DEBITED BY THE ASSE SSEE, IN ITS ACCOUNT BOOKS. IN VIEW OF THE FACT THAT THE PURCHASE OR OT HER INCIDENTAL EXPENSES WITH REGARD TO THE GOODS SOLD, AS UNACCOUN TED SALES BY THE ASSESSEE WERE NOT DEBITED BY THE ASSESSEE IN ITS AC COUNT BOOK, AS EVIDENT FROM THE QUANTITATIVE TALLY, NOT CONTROVERT ED BY THE REVENUE, THE ONLY LOGICAL CONCLUSION COULD BE TO APPLY FLAT RATE OF PROFIT ON THE UNACCOUNTED SALES AND TO ADD THE SAME AS INCOME IN THE HANDS OF THE ASSESSEE. IN THE FACTS AND CIRCUMSTANCES, THE ENTI RE AMOUNT OF UNACCOUNTED SALES OF RS.11,21,793/- COULD NOT BE AD DED IN THE HANDS OF THE ASSESSEE. THE TRIBUNAL IN THE LAST LINE OF ITS APPELLATE ORDER DATED 30.12.2011 HAS RECORDED THAT THE APPEAL OF TH E ASSESSEE STANDS PARTLY ALLOWED IN TERMS INDICATED HEREINABOVE. A PERUSAL OF THE COMPUTATION PART OF THE ASSESSMENT ORDER IN PARA 6. 2 OF THE ASSESSMENT ORDER CLEARLY SHOWS THAT THE AO HAS CHOSEN NOT TO A PPLY ANY FLAT RATE OF PROFIT TO THE DECLARED SALES OF THE ASSESSEE. I N THIS CASE, NEITHER THE AO NOR THE CIT(A) HAS APPLIED A FLAT RATE OF PROFIT ON ACCOUNTED SALES, NOR THERE IS ANY SUCH GROUND PREFERRED BY T HE ASSESSEE AND THE REVENUE HAS NOT PREFERRED ANY APPEAL AGAINST THE OR DER OF THE CIT(A), WE HOLD THAT THERE WAS NO OCCASION FOR THE TRIBUNAL TO DIRECT APPLICATION OF FLAT RATE OF PROFIT TO THE DECLARED TURNOVER OF THE ASSESSEE, AND ACCORDINGLY, WE HOLD THAT THE MISTAKE POINTED OUT BY THE ASSESSEE IS APPARENT FROM THE RECORD AND JUSTIFIES RECTIFICATION THEREOF. IN THIS VIEW OF THE MATTER, WE HOLD THAT IN PARA-4 OF THE TRIBUNAL ORDER DATED 30.12.2011 THE DIRECTION TO THE AO TO APPLY G P RATE OF 5% ON DECLARED TURNOVER SHOULD BE READ AS DIRECTION TO THE AO TO APPLY GP RATE OF 5% ON UNDECLARED TURNOVER OF RS.11,21,793/- WHICH COMES TO RS.56,090/- ONLY. THE AO IS DIRECTED TO G IVE EFFECT TO THE MODIFIED ORDER OF THE TRIBUNAL AS DIRECTED ABOVE AN D ADD A SUM OF MA NOS.86/AHD/2012 -5- RS.56,090/- REPRESENTING 5% RATE OF PROFIT ON UNACC OUNTED SALES OF THE ASSESSEE TO THE ASSESSED INCOME UNDER SECTION 143(3 ) VIDE ORDER DATED 30.3.2012 AND NOT TO REPEAT OTHER ADDITIONS MADE BY HIM IN HIS ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL DATED 23 .3.2012. WE DIRECT ACCORDINGLY. 4. IN THE RESULT, THE MAS FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %&'( %&'( %&'( %&'( / ANIL CHATURVEDI) )* + )* + )* + )* + /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD