ITO - 17 (2)(1), MUMBAI V. ISHARDAS AGGARWAL & SONS, MUMBAI

MA 98/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 9952 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-06-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 31-03-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Bogus purchase

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI M BALAGANESH, ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER MA NO. 98/MUM/2021 (IN ITA NO. 5672/MUM/2018) ( ASSESSMENT YEAR: 2010-11 ) ITO 17(2)(1) 123B, 1 ST FLOOR, AAYAKAR BHAVAN, MK ROAD, MUMBAI- 400020. / VS. ISHARDAS AGGARWAL & SONS, 39, LATIF HOUSE, SANT TUKARAM ROAD, IRON MARKET, MUMBAI 400009. ./ ./ PAN/GIR NO. : AABF12423F ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI T.S. KHALSA, DR / RESPONDENT BY : SHRI VIMAL PUNMIYA, AR / DATE OF HEARING 25/06/2021 / DATE OF PRONOUNCEMENT 30/06/2021 / O R D E R PER PAVAN KUMAR GADALE - JM: THE REVENUE HAS FILED THE MISCELLANEOUS APPLICATION IN ASSESSEE APPEAL ITA NO 5672/MUM/2018 DATED 30-12-2019 SEEKING FOR RECALL OF THE HONBLE TRIBUNAL ORDER. 2. AT THE TIME OF HEARING, THE LD.DR OF THE REVENUE SUBMITTED THAT THERE ARE CROSS APPEALS IN THE MA NO. 98 /MUM/2021 - 2 - ASSESSEES CASE FOR THE A.Y 2010-11. THE REVENUE HA S FILED THE APPEAL IN ITA NO. 5605/MUM/2018 AGAINST THE ORDER OF THE CIT(A). THE HONBLE TRIBUNAL HAS CONFIRMED THE DECISION OF CIT(A) IN RESTRICTING THE ADDITION TO 3% OF BOGUS PURCHASES AND DISMISSED THE REVENUE APPEAL ON 27.01.2019. SIMILARLY THE ASSESSE E HAS FILED THE APPEAL IN ITA NO 5672/MUM/2018 AGAINS T THE ORDER OF THE CIT(A) FOR FURTHER GRANT OF RELIEF . THE HONBLE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS AND FACTS HAS RESTORED THE MATTER TO THE FILE OF THE A. O WITH A DIRECTION TO RESTRICT THE ADDITION BY BRINGING GR OSS PROFIT RATE ON SUCH BOGUS PURCHASES AT THE SAME RAT E AS THAT OF THE GENUINE PURCHASES AND THE ORDER WAS PASSED ON 30.12.2019. 3. FURTHER, THE LD. DR SUBMITTED THAT WHEN THE REVENUE APPEAL WAS DISMISSED BY THE HONBLE TRIBUNA L ON 25.11.2019. THE ASSESSEE HAS NOT BROUGHT ON RECO RD THAT THEY HAVE FILED APPEAL AGAINST CIT(A) ORDER A ND IS PENDING FOR HEARING. THE LD. DR ALSO SUBMITTED THAT THERE CANNOT BE TWO ITAT ORDERS GIVING EFFECT(OGE) TO THE ASSESSEE CASE BEFORE THE ASSESSING OFFICER. SIN CE THERE IS A MISTAKE APPARENT ON RECORD THE LD.DR PRAYED FOR RECALL OF THE HONBLE TRIBUNAL ORDER. MA NO. 98 /MUM/2021 - 3 - 4. CONTRA, THE LD. AR SUPPORTED THE ORDER OF THE HONBLE TRIBUNAL AND SUBMITTED THAT THERE IS NO ERR OR IN THE ORDER AND THE REVENUE APPEAL HAS BEEN DISMISSED. 5. WE FIND THAT THE CROSS APPEALS FILED BY THE REVE NUE AND THE ASSESSEE WERE HEARD INDEPENDENTLY AND THE REVENUE APPEAL HAS BEEN DISMISSED ON 25.11.2019. WHEREAS, IN THE ASSESSEE APPEAL, THE DISPUTED ISSU E HAS BEEN RESTORED TO THE FILE OF THE A.O. WITH THE SPECIFIC DIRECTIONS. CONSIDERING BOTH THE DECISIONS , THE A.O. HAS TO PASS THE TWO ORDERS AND IT IS PRACTICAL LY NOT POSSIBLE AS PER THE LAW. 6. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE LD.DR SUBMISSIONS ARE REALISTIC AS THERE CANNOT BE TWO ORDERS OF THE ITAT IN THE ASSESSEE CASE. THEREFORE, WE CONSIDERING THE FA CTS AND SUBMISSIONS FIND THAT THERE IS A MISTAKE APPARE NT FROM THE RECORD IN THE ITAT ORDER. ACCORDINGLY, WE RECALL THE ORDER ITA NO.5672/MUM/2018 DATED 30.12.2019 AND DIRECT THE REGISTRY TO POST THE CASE FOR HEARING ON 21.07.2021 AND INTIMATE BOTH THE PARTIES . WE ORDER ACCORDINGLY. MA NO. 98 /MUM/2021 - 4 - 7. IN THE RESULT THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.06.2021 SD/- SD/- (M BALAGANESH) (PAVAN KUMAR GADALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30 /06/2021 KRK, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. & '( ) / THE CIT(A) 4. ) ( ) / CONCERNED CIT 5. ,-. //'( , '( , & / DR, ITAT, MUMBAI 6. .34 5 / GUARD FILE. / BY ORDER, , / //TRUE COPY// 1. / ( ASST. REGISTRAR) !' #, / ITAT, MUMBAI