The ACIT, Circle-2(1)., Vijayawada V. M/s Arunodaya Note Book Manufacturers Pvt Ltd, Vijayawada

MA 86/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5080 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-08-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 22-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO.86/VIZAG/2010 ARISING OUT OF ITA NO.251/VIZAG/2008 ASSESSMENT YEAR : 2005-06 ACIT CIRCLE-2(1) VIJAYAWADA M/S. ARUNODAYA NOTE BOOK MANUFACTURERS PVT. LTD. VIJAYAWADA (APPELLANT) VS. (RESPONDENT) PAN NO.AAECA 3317R APPELLANT BY: SHRI D.S. SUNDER SINGH, DR RESPONDENT BY: SHRI C. SUBRAHMANYAM, CA ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER:- THIS MISCELLANEOUS APPLICATION IS PREFERRED BY TH E REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 5 TH MARCH, 2010 IN ITA NO.251/VIZAG/2008 WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT CONSIDERED THE JUDGEMENT OF THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF SHRI GA NESH RICE MILLS VS. CIT 294 ITR 316 AND HAS ESTIMATED THE INCOME OF THE ASS ESSEE INSTEAD OF MAKING AN ADDITION OF BOGUS PURCHASES MADE BY THE ASSESSEE S. BY NOT FOLLOWING THE JUDGEMENT OF THE ALLAHABAD HIGH COURT, AN ERROR IN THE ORDER OF THE TRIBUNAL HAS BEEN CREPT. THEREFORE, A NECESSARY RECTIFICATI ON IS CALLED FOR. THE LD. D.R. FURTHER CONTENDED THAT THE ASSESSEE COULD NOT PROVE THE PURCHASES MADE BY IT BY PLACING THE RELEVANT EVIDENCE. THERE FORE, THE REVENUE HAS RIGHTLY MADE THE ADDITION OF THE BOGUS PURCHASES. BUT THE TRIBUNAL INSTEAD OF FOLLOWING THE JUDGEMENT OF ALLAHABAD HIGH COURT, HA S ESTIMATED THE INCOME OF THE ASSESSEES. SINCE THE TRIBUNAL HAS NOT FOLLO WED THE JUDGEMENT OF ALLAHABAD HIGH COURT, AN ERROR IN THE ORDER IS CREP T WHICH NEEDS RECTIFICATION. THE LD. D.R. FURTHER URGED THAT IN THE LIGHT OF THE SE FACTS, THE ORDER OF THE TRIBUNAL BE EITHER MODIFIED OR RECALLED IN THE INTE REST OF JUSTICE. 2 2. THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED T HAT THE TRIBUNAL HAS TAKEN A COGNIZANCE OF THE SUBMISSIONS OF THE REVENU E IN THIS REGARD AND HAS TAKEN A CONSCIOUS DECISION THAT IN THIS TYPE OF SIT UATION WHERE THE ASSESSEE ITSELF HAS OFFERED CERTAIN INCOME ON ACCOUNT OF BUS INESS ACTIVITY, THE ADDITION SHOULD NOT BE MADE ON THE BASIS OF BOGUS PURCHASES. THE TRIBUNAL THEREFORE RIGHTLY ESTIMATED THE INCOME. THE TRIBUNAL HAS ALS O INCREASED THE ESTIMATION MADE BY THE CIT(A). 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE ORDER OF THE TRIBUNAL VIS--VIS MISCELLANEOUS APPLI CATION, WE FIND THAT THE ARGUMENT RAISED BY THE REVENUE WAS DULY CONSIDERED BY THE TRIBUNAL AND HAS TAKEN A CONSCIOUS DECISION IN THE FACTS AND CIRCUMS TANCES OF THE CASE. IF THE ADDITION OF TOTAL PURCHASES MADE BY THE ASSESSEE AS BOGUS PURCHASE IS MADE, IT WOULD NOT BE FAIR BECAUSE IT IS OVER AND ABOVE T HE INCOME DECLARED BY THE ASSESSEE. THE TRIBUNAL ACCORDINGLY ESTIMATED THE I NCOME AT RS.30 LAKHS IN PLACE OF RS.25 LAKHS ESTIMATED BY THE CIT(A). SINC E THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL THE RELEVANT FACTS, WE FIND NO ERR OR/MISTAKE IN THE ORDER OF THE TRIBUNAL. THE REVENUE IN FACT WANTS A REVIEW O F THE ORDER OF THE TRIBUNAL UNDER THE GARB OF RECTIFICATION WHICH IS NOT PERMIS SIBLE U/S 254(2) OF THE I.T. ACT. WE THEREFORE FIND NO MERIT IN THE REVENUES M ISCELLANEOUS APPLICATION AND WE DISMISS THE SAME. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF T HE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 18.8.2010 SD/- SD/- (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 18 TH AUGUST, 2010 3 COPY TO 1 THE DCIT, VIJAYAWADA 2 M/S. ARUNODAYA NOTE BOOK MANUFACTURERS PVT. LTD., 33-5-9, 2 ND FLOOR, PAPAIAH STREET, SITARAMAPURAM, VIJAYAWADA-520 002 3 THE CIT, VIJAYAWADA 4 THE CIT(A), VIJAYAWADA 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM