Income Tax Appellate Tribunal - Jaipur
Acit, Jaipur vs Ashok Kumar Goyal, Jaipur on 11 January, 2017
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IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,
JAIPUR
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BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM
M.A. No. 172/JP/2016
(Arising out of ITA No. 348/JP/2013)
fu/kZkj.k o"kZ@Assessment Year: 2007-08
Assistant Commissioner cuke Ashok Kumar Goyal,
of Income Tax, Vs. 80, Gopal Bari,
Circle-1, Jaipur. Jaipur.
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: ACIPG 3380 P
vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Shri R.A. Verma (Addl.CIT)
fu/kZkfjrh dh vksj l@
s Assessee by : Shri Anil Kr. Sharma (Adv.)
lquokbZ dh rkjh[k @ Date of Hearing: 06/01/2017
mn?kks"k.kk dh rkjh[k @ Date of Pronouncement : 11/01/2017
vkns'k@ ORDER
PER: KUL BHARAT, J.M. The revenue has filed this Misc. application on 14/12/2016 seeking recalling of the order of the ITAT, Jaipur Bench, Jaipur dated 12/02/2016 passed in ITA No. 348/JP/2013 for A.Y. 2007-08.
2. In this Misc. application, the revenue has submitted that the Hon'ble Tribunal has set aside the assessment to decide the issue of 2 MA 172/JP/2016_ ACIT Vs Ashok Kumar Goyal 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.
3. It was submitted by the revenue that the decision of the Tribunal in setting aside the assessment is not justifiable as any matter cannot be set aside for afresh assessment subject to an uncertain future event 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 one year 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. Further, it was submitted that it is mentioned in the Tribunal order that Departmental Representative had stated that the issue in question may be decided as per the judgment of Hon'ble ITAT dated 22.10.2014 rendered in the case of Anuj Kumar Varshney & others vs. ITO. This observation is factually 3 MA 172/JP/2016_ ACIT Vs Ashok Kumar Goyal 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. He also submitted that similar identical issue has also been decided by the Hon'ble ITAT, Jaipur Bench, Jaipur in case of DCIT Vs. M/s Oriental Gemco (P) Ltd. in MA No. 21/JP/2016 (arising out of ITA No. 369/JP/2014 A.Y. 2008-09) order dated 14/10/2016.
4. Here it would be relevant to refer to the findings of the Co- ordinate Bench, which is the subject matter of present application, which is as under:
"2.4 I have heard the rival contentions and perused the material available on record. There is merit in the proposal of both the parties. Accordingly the issue raised in assessee's appeal is set aside and restored back to the file of the AO to decide the same afresh after the judgement of Honb'le Rajasthan High Court in the case of Anuj Kumar Varshney & others (supra) is delivered, after giving adequate opportunity of being heard to the assessee. Thus the appeal of the assessee is allowed for statistical purposes."
5. The ld Sr. DR took us through the relevant provisions of Section 153(2A) of the Act which states as under:
4 MA 172/JP/2016_ ACIT Vs Ashok Kumar Goyal "(2A) Notwithstanding anything contained in sub-sections(1), (1A), (1B) and (2) in relation to the assessment year commencing on the 1st day of April, 1971 and any subsequent assessment year, an order of fresh assessment in pursuance of an order u/s 250 or 254 or section 263 or section 264, setting aside or cancelling an assessment, may be made at any time before the expiry of one year from the end of the financial year in which the order u/s 250 or section 254 is received by the Principal Chief Commissioner or chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order u/s 263 or section 264 is passed by the Principal Chief Commissioner or chief Commissioner or Principal Commissioner or Commissioner."
6. From the perusal of material available on record, it is noted that only issue involved in the assessment proceedings related to rejection of books of accounts on account of unverified purchases and estimation of appropriate gross profit rate thereon. The AO had applied 25% gross profit rate on unverified purchases which has been confirmed by the ld. CIT(A) which was the subject matter of appeal before the Coordinate Bench. The Coordinate Bench vide its order dated 8.10.2015 has set aside the issue relating to estimation of profits and restored the matter back to the file of the AO to decide the same afresh after the judgment 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 5 MA 172/JP/2016_ ACIT Vs Ashok Kumar Goyal provisions of Section 153(2A) of the Act were not brought to the notice of this Tribunal. We accordingly recall the order passed by the Coordinate Bench of this Tribunal dated 12/02/2016 and direct the Registry to fix the matter for fresh hearing in due course.
5. In the result, the M.A. of the revenue is allowed.
Order pronounced in the open court on 11/01/2017.
Sd/- Sd/-
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(Vikram Singh Yadav) (Kul Bharat)
ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member
Tk;iqj@Jaipur
fnukad@Dated:- 11th January, 2017
*Ranjan
vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The ACIT, Circle-1 Jaipur.
2. izR;FkhZ@ The Respondent- Shri Ashok Kumar Goyal, 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 (MA No. 172/JP/2016) vkns'kkuqlkj@ By order, lgk;d iathdkj@Asst. Registrar