The DCIT, Circle-2, Jaipur v. M/s Oriental Gemco (P) Ltd
[Citation -2016-LL-1014-67]

Citation 2016-LL-1014-67
Appellant Name The DCIT, Circle-2, Jaipur
Respondent Name M/s Oriental Gemco (P) Ltd
Court ITAT-Jaipur
Relevant Act Income-tax
Date of Order 14/10/2016
Assessment Year 2008-09
Judgment View Judgment
Keyword Tags estimation of income • gross profit rate • fresh assessment
Bot Summary: ORDER PER SHRI VIKRAM SINGH YADAV, A.M. This Miscellaneous Application has been filed by the Revenue against the order passed by the Co-ordinate Bench in ITA No. 369/JP/14 dated 8.10.2015. In its application, the Revenue has submitted that the Tribunal has set aside the assessment to decide the issue of estimation of income on account of bogus/unverifiable purchases to the file of the AO for fresh assessment after the judgement of Hon ble High court is delivered in the case of Anuj Kumar Varshney and others. 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. 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 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. 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 judgement of Hon ble Rajasthan High Court in the case of Anuj Kumar Varshney Others vs. ITO(Supra) is delivered. 3 MA No.21/JP/16 DCIT, Circle-2, Jaipur vs. M/s Oriental Gemco Ltd. Jaipur We accordingly recall the order passed by the Coordinate Bench dated 16.02.2016 and direct the Registry to fix the matter for fresh hearing in due course.


IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM MA No.21/JP/16 Arising out of ITA No. 369/JP/2014 Assessment Year : 2008-09 DCIT, Circle-2, Jaipur cuke M/s Oriental Gemco (P) Ltd, Vs. 3571 Nigam House MSB Ka Rasta, Johari Bazar, Jaiur PAN No. AAACO 6637 N Appellant Respondent Assessee by : Shri P.C. Parwal (CA) Revenue by :Shri Rajendra Jha (JCIT) Date of Hearing : 07.10.2016 Date of Pronouncement : 14/10/2016. ORDER PER SHRI VIKRAM SINGH YADAV, A.M. This Miscellaneous Application has been filed by Revenue against order passed by Co-ordinate Bench in ITA No. 369/JP/14 dated 8.10.2015. In its application, Revenue has submitted that Tribunal has set aside assessment to decide issue of estimation of income on account of bogus/unverifiable purchases to file of AO for fresh assessment after judgement of Hon ble High court is delivered in case of Anuj Kumar Varshney and others. 2. It was submitted by Revenue that decision of Tribunal in setting aside assessment is not justifiable as any matter cannot be set aside MA No.21/JP/16 DCIT, Circle-2, Jaipur vs. M/s Oriental Gemco (P) Ltd. Jaipur for afresh assessment subject to uncertain future event and also for indefinite period. set- aside assessments are required to be completed by AO within time prescribed in Section 153(2A) of IT Act, 1961 which is one year from end of financial year in which order of ITAT is received by concerned Commissioner. This limitation cannot be extended by Hon ble ITAT itself for indefinite and uncertain period. As no limitation has been prescribed for decision of Hon ble High Court, therefore assessment cannot be kept in abeyance till such order of Hon ble High Court. Further, it was submitted that it is mentioned in Tribunal order that Departmental Representative had stated that issue in question may be decided as per judgement of Hon ble ITAT dated 22.10.2914 rendered in case of Anuj Kumar Varshney & others vs. ITO. This observation is factually not correct because no such acceptance was given by departmental Representative. Since mistake is apparent from order of Hon ble ITAT, Jaipur Bench, Jaipur same may kindly be rectified under section 254(2) of IT Act, 1961 by recalling appeal order and deciding same on merits. 3. Here it would be relevant to refer to findings of Co-ordinate Bench, which is subject matter of present application, which is as under: 2.4 I have heard rival contentions and perused material available on record. There is merit in proposal of both parties. Accordingly issue raised in assessee s appeal is set aside and restored back to file of AO to decide same afresh after judgement of Honb le Rajasthan High Court in case of Anuj Kumar Varshney & others (supra) is delivered, after giving adequate opportunity of being heard to assessee. Thus appeal of assessee is allowed for statistical purposes. 2 MA No.21/JP/16 DCIT, Circle-2, Jaipur vs. M/s Oriental Gemco (P) Ltd. Jaipur 4. ld DR took us through relevant provisions of Section 153(2A) of Act which states as under: (2A) Notwithstanding anything contained in sub-sections(1), (1A), (1B) and (2) in relation to assessment year commencing on 1st day of April, 1971 and any subsequent assessment year, order of fresh assessment in pursuance of order u/s 250 or 254 or section 263 or section 264, setting aside or cancelling assessment, may be made at any time before expiry of one year from end of financial year in which order u/s 250 or section 254 is received by Principal Chief Commissioner or chief Commissioner or Principal Commissioner or Commissioner or, as case may be, order u/s 263 or section 264 is passed by Principal Chief Commissioner or chief Commissioner or Principal Commissioner or Commissioner. 5. From perusal of material available on record, it is noted that only issue involved in assessment proceedings related to rejection of books of accounts on account of unverified purchases and estimation of appropriate gross profit rate thereon. AO had applied 25% gross profit rate on unverified purchases which has been confirmed by ld. CIT(A) which was subject matter of appeal before Coordinate Bench. Coordinate Bench vide its order dated 8.10.2015 has set aside issue relating to estimation of profits and restored matter back to file of AO to decide same afresh after judgement of Hon ble Rajasthan High Court in case of Anuj Kumar Varshney & Others vs. ITO(Supra) is delivered. From perusal of records, it is also noted that provisions of Section 153(2A) of Act were not brought to notice of Coordinate Bench. 3 MA No.21/JP/16 DCIT, Circle-2, Jaipur vs. M/s Oriental Gemco (P) Ltd. Jaipur We accordingly recall order passed by Coordinate Bench dated 16.02.2016 and direct Registry to fix matter for fresh hearing in due course. Miscellaneous Application filed by Revenue is disposed off accordingly. Order pronounced in open court on 14/10/2016. Sd/- Sd/- (KUL BHARAT) (VIKRAM SINGH YADAV) Judicial Member Accountant Member Jaipur Dated:- 14/10/2016 Pillai Copy of order forwarded to: s 1. Appellant- DCIT, Circle-2, Jaipur 2. Respondent- M/s Oridental Gemco (P) Ltd. Jaipur 3. CIT I, Jaipur 4. CIT(A)-I, Jaipur 5. DR, ITAT, Jaipur 6. Guard File (MA No.21 /JP/2016) By order, Assistant. Registrar 4 DCIT, Circle-2, Jaipur v. M/s Oriental Gemco (P) Ltd
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