Income Tax Appellate Tribunal - Allahabad
Dcit, Sultanpur vs Shri Shakeel Haider, Amethi on 27 January, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
[THROUGH VIRTUAL COURT]
BEFORE SHRI.VIJAY PAL RAO, JUDICIAL MEMBER AND
SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
MA No. 15/Alld/2017
[Arising out of ITA No.145 /ALLD/2016]
Assessment Year: 2011-12
DCIT, vs. Shri Shakeel Haider,
Circle, Sultanpur Prop. Shakeel Haider Engg. &
Contractors Jagdispur Industrial
Area, Amethi
TAN/PAN:ABRPH 4513R
(Appellant) (Respondent)
Appellant by: None (Application)
Respondent by: Shri A.K. Singh, CIT (DR)
Date of hearing: 22.01.2021
Date of pronouncement: 27.01.2021
ORDER
PER SHRI VIJAY PAL RAO, JUDICIAL MEMBER:
By way of this miscellaneous application, the Revenue is seeking rectification of mistake in the order dated 30.01.2017 of this Tribunal. None has appeared on behalf of the applicant assessee when the miscellaneous application was called for hearing despite the fact that on the last date of hearing, the ld. AR of the assessee appeared and noted down the next date of hearing. An application for adjournment is filed on behalf of the assessee, on the ground that the local counsel who appeared before the authorities below is presently at Pune. It is pertinent to note that this is not the appellate proceedings against the order of ld. CIT(A) but MA No.15/ALLD/2017 this is only MA against the order of the Tribunal and therefore, the assessee cannot take this plea of non availability of the local counsel when the counsel who has appeared before the Tribunal is available. Even otherwise, when the hearing is taken up through video conference then the joining the proceedings from any place is not a hurdle. Accordingly, we propose to hear and disposed of this MA exparte.
2. We have heard the ld. DR and carefully perused the impugned order of the Tribunal. The Revenue has specifically pointed out a mistake in the impugned order regarding comparing the NP rate adopted by the Assessing Officer at 8% with the G.P. declared by the assessee at 7.10% but mistakenly treated as NP at 7.10%. This mistake has been pointed out in Para 3 of the application as under:
"3. The Hon'ble ITAT has erred in law as well as facts in upholding the NP rate at 7.10% instead of 7.10% GP as adjudicated by ld. CIT(A)."
3. We note that the Tribunal while dismissing the appeal of the Revenue and confirming the order of the ld. CIT(A) has considered the comparative NP declared by the assessee and rate adopted by the AO in para 4 as under:
"4. Aggrieved by the order of the Assessing Officer, the assessee preferred an appeal before the Id. CIT(A), who deleted the aforesaid addition' taking into consideration the order of the Tribunal and the Hon'ble High Court in the assessee's own case. The Id. CIT(A) notes that for assessment year 2001-02, the Tribunal has upheld the G.P. rate at 6.5% on contract receipts. The Id. CIT(A) notes that in the relevant assessment year, the assessee has shown N.P. rate of 7.10%, so without giving any reason he should not have estimated the N.P. rate at 8%. We take note that the assessee in the relevant assessment year has shown N.P. rate at 7.10% and the assessee is engaged in the same kind of business for a very long period and the Assessing Officer has not given any reason for estimating the N.P. rate at 8% when the assessee has declared N.P. rate at 7.10%. Without referring to any material on record to increase the N.P. rate, the Assessing 2 MA No.15/ALLD/2017 Officer ought not to have made the ad-hoc estimation. Though while doing the estimation an element of guess work is there, still the Assessing Officer ought to have referred to some material or comparable cases for justifying the estimation. Here in this case, he has not done so, therefore, taking the past history of the assessee, we find that in the earlier year tie Tribunal has upheld the N.P. rate of 6.50% and this year the assessee himself has shown N.P. rate of 7.10% which, in our opinion, is fair and reasonable and, therefore, we confirm the order of the Id. CIT(A) and dismiss the appeal of the Revenue."
4. Thus, it is clear that the Tribunal has assumed the NP declared by the assessee at 7.10% which is in fact GP declared by the assessee. Thus, it is an apparent mistake of a crucial fact to be considered for estimation of income of the assessee after rejection of books of account. We further note that the comparative GP and NP rates are reproduced by the ld. CIT(A) at page 5 of the impugned order and therefore, what the Tribunal has taken as NP @ 7.10% for the year under consideration is clearly the GP declared by the assessee whereas the NP declared by the assessee for the year under consideration is 2.48% and not 7.10%. Hence, the decision of the Tribunal based on incorrect fact or assumption of incorrect fact constitute an apparent mistake which requires to be rectified. Hence, we recall the impugned order dated 30.1.2017 of this Tribunal for fresh adjudication. The Registry is directed to fix this appeal for hearing on 22.02.2021 and the proper notice of hearing of appeal to be issued to the parties.
5. In the result, MA filed by the Revenue is allowed.
(Order pronounced on 27/01/2021 at Allahabad in the open Court through Video Conferencing) Sd/- Sd/-
[RAMIT KOCHAR] [VIJAY PAL RAO] ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 27/01/2021 3 MA No.15/ALLD/2017 Aks/- Copy forwarded to: 1. Appellant - 2. Respondent - 3. CIT(A) - 4. CIT 5. DR - 4