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Income Tax Appellate Tribunal - Panji

Ito, Jaipur vs Shankar Jhalani, Jaipur on 4 January, 2018

             vk;dj vihyh; vf/kdj.k] t;iqj U;k;ihB] t;iqj
IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR

Jh fot; ikWy jko] U;kf;d lnL; ,oa Jh foØe flag ;kno] ys[kk lnL; ds le{k
BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM

                        vk;dj vihy la-@MA No.62/JP/17
                        (Arising out of ITA No. 644/JP/15)
                      fu/kZkj.k o"kZ@Assessment Year : 2009-10

The ITO,                                cuke   Shri Shankar Jhalani,
Ward-3(4),                              Vs.    B-3, Lalji Ka Bagh, Motilal
Jaipur                                         Atal Road, Jaipur
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ABTPJ9902E
vihykFkhZ@Appellant                            izR;FkhZ@Respondent

      jktLo dh vksj ls@ Revenue by : Smt. Neena Jeph ( JCIT)
      fu/kZkfjrh dh vksj l@
                          s Assessee by : Shri P.C. Parwal (CA)

      lquokbZ dh rkjh[k@ Date of Hearing         : 08/12/2017
      mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 04/01/2018

                               vkns'k@ ORDER

PER: VIKRAM SINGH YADAV, A.M. The Revenue has moved the present Misc. application against the order passed by the Coordinate Bench in ITA No. 644/JP/2015 dated 07.04.2016 for A.Y. 2009-10.

2. In its application the Revenue has submitted that vide order dated 07.04.2016 in ITA No. 644/JP/2015 for the AY 2009-10 in the case of Shri Shankar Jhalani, received in the office of Pr. CIT-1, Jaipur on 04.07.2016, the Hon'ble Tribunal has set aside the assessment to 2 M.A. No. 62/JP/2017 ITO, Jaipur Vs. Shri Shankar Jhalani, Jaipur decide the issue of estimation of income on account of bogus/unverifiable purchases to the file of the AO for fresh assessment after the judgment of Hon'ble High Court is delivered in the case of Anuj Kumar Varshney and others.

It was submitted that the decision of the ITAT in setting asiding the assessment is not justifiable. Any matter cannot be set aside for afresh assessment subject to an uncertain future even and also for indefinite period. The set aside assessments are required to be completed by the AO within the time prescribed in section 153(2A) of the IT Act 1961, which is nine months from the end of the financial year in which the order of the ITAT is received by the concerned Commissioner. This limitation cannot be extended by the Hon'ble ITAT itself for indefinite and uncertain period as no limitation has been prescribed for the decision of the Hon'ble High Court, therefore, an assessment cannot be kept in abeyance till such order of the Hon'ble High Court.

Since the implied legal issue of limitation for completing assessment as provided u/s 153(2A) r.w.s 153(3)(ii) of the IT Act 1961 was also raised during hearing remained undecided by Hon'ble ITAT, there is an apparent mistake in the order of the Hon'ble ITAT.

Further, it was submitted that it is mentioned in order that both the parties had agreed that the issue in question may be set aside to the file of the AO to decide the same afresh after the judgment rendered in the case of Anuj Kumar Varshney & Others vs. ITO of Hon'ble Rajasthan 3 M.A. No. 62/JP/2017 ITO, Jaipur Vs. Shri Shankar Jhalani, Jaipur High Court. This observation is factually not correct because no such acceptance was given by Departmental Representative.

Since the mistake is apparent from the order of the Hon'ble ITAT, Jaipur Bench, Jaipur, the same may kindly be rectified under section 254(2) of IT Act 1961 by recalling the appeal order and deciding the same on merits.

3. From the perusal of material available on record, it is noted that the issue involved in the assessment proceedings related to unverified purchases amounting to Rs 59,88,350. The Co-ordinate Bench vide its order dated 7.4.2016 has set aside the matter to the file of the AO to decide the same afresh after the judgement of Hon'ble Rajasthan High Court in the case of Anuj Kumar Varshney & Others vs. ITO (Supra) is delivered. From the perusal of records, it is also noted that the provisions of Section 153(2A) of the Act were not brought to the notice of the Coordinate Bench.

4. We accordingly recall the order passed by the Coordinate Bench dated 7.4.2016 and direct the Registry to fix the matter for fresh hearing in due course.

The Miscellaneous Application filed by the Revenue is disposed off accordingly.

Order pronounced in the open Court on 04/01/2018.

ITO, Jaipur Vs. Shri Shankar Jhalani, Jaipur Sd/- Sd/-

       ¼ fot; ikWy jko ½                             ¼foØe flag ;kno½
       (Vijay Pal Rao)                            (Vikram Singh Yadav)
U;kf;d lnL;@Judicial Member                ys[kk lnL;@Accountant Member

Tk;iqj@Jaipur
fnukad@Dated:- 04/01/2018
Ganesh Kr.

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- ITO, Jaipur

2. izR;FkhZ@ The Respondent- Shri Shankar Jhalani, Jaipur

3. vk;dj vk;qDr@ CIT

4. vk;dj vk;qDr@ CIT(A)

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur.

6. xkMZ QkbZy@ Guard File {M.A. No. 62/JP/2017} vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar