DWARKA GEMS LTD., Jaipur V. ACIT, Jaipur

MA 92/JPR/2016

• Counselvise Citation: [2016] 112 COUNSELVISE.COM (IT) 5124 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA CIT DHK
• Section: 271(1)(c); 254(2)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.92/JP/16 (ARISING OUT OF ITA NO. 19 6/JP/14) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2005-06 M/S DWARKA GEMS LTD., F-1-5 & 6 EPIP, SITAPURA INDUSTRIAL AREA, JAIPUR CUKE VS. THE ACIT, CIRCLE-7, JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACD 8548 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY SHRI R.A. VERMA (ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 22. 07.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 08/08/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED IN ITA NO. 196/JP/14 DATED 11.03. 2016. IN ITS PETITION, THE ASSESSEE HAS SUBMITTED THAT WHILE DECIDING THE APPE AL OF ASSESSEE AND IN SUSTAINING THE PENALTY OF RS. 2,19,555/- U/S 271(1) (C) OF THE IT ACT LEVIED BY THE ASSESSING OFFICER, THE HONBLE TRIBUNAL HAD FAILED TO ADJUDICATE THE GROUND OF APPEAL NO. 1.3 TAKEN WHICH READS AS UNDER: (1.3) THAT THE LD. CIT(A) AS WELL AS LD. AO HAVE GR OSSLY ERRED IN NOT FOLLOWING THE DECISION OF THE JURISDICTIONAL INCOME TAX APPEL LATE TRIBUNAL PASSED IN THE CASE OF ASSESSEE ITSELF, WHEREIN UNDER SIMILAR CIRCUMSTANCES THE PENALTY LEVIED IN IMMEDIATELY PRECEDING ASSESSMENT YEAR WAS DELETED BY THE HONBLE BENCH. MA NO.92/JP/16 (ARISING OUT OF ITA NO. 196/JP/14) M/S DWARKA GEMS, JAIPUR VS. ACIT, CIRCLE-7, JAIPUR. 2 2. THE LD AR SUBMITTED THAT IN THE CASE OF APPELLAN T ITSELF IN THE IMMEDIATELY PRECEDING ASSESSMENT YEAR UNDER IDENTIC AL CIRCUMSTANCES, PENALTY U/S 271(1)(C) WAS LEVIED ON LUMP SUM ADDITION SUSTA INED BY HONBLE BENCH WHICH WERE MADE BY LD. AO BY ALLEGING CERTAIN PUR CHASES AS UNVERIFIABLE WHICH STOOD DELETED BY THIS HONBLE JAIPUR BENCH OF ITAT. THUS NOT DECIDING THE GROUND OF APPEAL SPECIFICALLY TAKEN AND NOT FOL LOWING ITS OWN ORDER BY THE HONBLE BENCH WITHOUT ANY REASONS FOR DEVIATING FRO M ITS EARLIER ORDER IN ASSESSEES OWN CASE IS A MISTAKE APPARENT ON RECORD RESPECTFULLY CALLING FOR RECTIFICATION U/S 254(2) OF THE ACT. THEREFORE THI S MISCELLANEOUS APPLICATION HAS BEEN FILED BY ASSESSEE SEEKING RECTIFICATION OF THE ORDER OF THIS HONBLE TRIBUNAL DATED 11.03.2016. IN SUPPORT, RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: (1) LAXMI ELECTRONIC CORPORATION LTD. VS. CIT 188 I TR 398 (2) CIT VS. KESHAV FRUIT MART 199 ITR 771 (3) RATI RAM GOTEWALA VS. DCIT 84 TTJ 513 2.2 THE LD DR IS HEARD WHO HAS SUBMITTED THAT THE P RESENT M.A PETITION IS NOT MAINTAINABLE AS THE SAME AMOUNT TO REVIEW OF THE E ARLIER ORDER PASSED BY THE HONBLE TRIBUNAL AND THE SAME WILL FALL OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT. 2.3 WE HAVE HEARD THE RIVAL CONTENTIONS. FROM THE PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, IT IS NOTED THAT THE COORDINAT E BENCH HAS DISCUSSED AT LENGTH THE APPELLANTS RELIANCE ON COORDINATE BENCH DECISION FOR THE EARLIER YEAR AY 2004-05 IN CASE OF QUANTUM PROCEEDINGS AND HAS DRAWN ITS OWN ANALOGY AFTER EXAMINING THE FACTS OF THE CASE. HOWE VER, AS FAR AS COORDINATE BENCH DECISION FOR AY 2004-05 IN ITA NO. 549/JP/201 0 DATED 28.04.2011 IN THE CONTEXT OF PENALTY PROCEEDINGS, APPARENTLY THERE IS REFERENCE TO THE SAID MA NO.92/JP/16 (ARISING OUT OF ITA NO. 196/JP/14) M/S DWARKA GEMS, JAIPUR VS. ACIT, CIRCLE-7, JAIPUR. 3 DECISION IN PARA 2.10 OF THE IMPUNGED ORDER AS PART OF THE FACTS AS SUBMITTED BY THE APPELLANT. HOWEVER, ON PERUSAL OF THE ORDER, IT IS APPARENT THAT THE COORDINATE BENCH WHILE ADJUDICATING THE MATTER HAS NOT CONSIDERED THE SAID DECISION WHICH WAS PASSED FOR THE EARLIER YEAR. IT IS ALSO NOTED THAT THE APPELLANT HAS RAISED A SPECIFIC GROUND OF APPEAL NO . 1.3 IN THIS REGARD AND THERE IS NO SEPARATE ADJUDICATION THEREOF. IN OUR VIEW, EVEN WHERE IT IS HELD THAT GROUND NO. 1.3 IS PART OF GROUND NO. 1, GIVEN THAT THE APPELLANT HAS TAKEN A SPECIFIC GROUN D OF APPEAL AND WHICH, AS PER THE APPELLANT, HAS A STRONG BEARING ON THE SUBJ ECT MATTER, IT WAS ESSENTIAL THAT THE SAME SHOULD HAVE BEEN ADJUDICATED UPON AND DISPOSED OFF. IN THE INSTANT CASE, GROUND NO. 1.3 HAS NOT BEEN ADJUDICAT ED UPON IN THE IMPUNGED COORDINATE BENCH ORDER. HENCE, IT IS A MISTAKE WHI CH IS APPARENT FROM RECORD. THE EARLIER ORDER OF THE TRIBUNAL IS ACCORDINGLY RE CALLED AND THE REGISTRY IS DIRECTED TO SCHEDULE THE HEARING IN THE MATTER ON 1 9 TH AUGUST, 2016. IN THE RESULT, THE M.A FILED BY THE ASSESSEE IS DIS POSED OFF WITH ABOVE OBSERVATIONS AND DIRECTIONS. ORDER PRONOUNCED IN THE OPEN COURT ON 08/08 /2016. SD/- SD/- ( KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 08/08/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S DWARKA GEMS LTD. JAIPUR MA NO.92/JP/16 (ARISING OUT OF ITA NO. 196/JP/14) M/S DWARKA GEMS, JAIPUR VS. ACIT, CIRCLE-7, JAIPUR. 4 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CIRCLE-7, JAIPUR 3. VK;DJ VK;QDR@ CIT III, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-III, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO.92/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR