IN INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YADAV, AM MA No.116/JP/16 ( Arising out of ITA No. 639/JP/15 ) Assessment Year : 2009-10 ACIT, Circle-1, Jaipur cuke M/s Gemco. , Lal Haweli, Vs. MSB Ka Rasta, Johari Bazar, Jaipur la-PAN No. AACFG 8642 G 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. 639/JP/15 dated 16.02.2016 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. 116/JP/16 ITO Ward 2(1), Jaipur vs. M/s Gemco, 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: 3.1 Apropos quantum addition, in interest of justice, we set aside issue back to file of AO to decide whether there are any unverifiable purchases and to adopt net profit rate on unverifiable purchases as and when Hon ble Jurisdictional High Court pass judgement. 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, 2 MA No. 116/JP/16 ITO Ward 2(1), Jaipur vs. M/s Gemco, Jaipur 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 11% gross profit rate which has been enhanced to 15% by ld. CIT(A) which was subject matter of appeal before Coordinate Bench. Coordinate Bench vide its order dated 16.02.2016 has upheld rejection of books of accounts and 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. We accordingly recall order passed by Coordinate Bench dated 16.02.2016 and direct Registry to fix matter for fresh hearing in due course. 3 MA No. 116/JP/16 ITO Ward 2(1), Jaipur vs. M/s Gemco, Jaipur 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- M/s Gemco. Jaipur 2. Respondent- ITO. Ward 2(1), Jaipur 3. CIT I, Jaipur 4. CIT(A)-I, Jaipur 5. DR, ITAT, Jaipur 6. Guard File (MA No.116/JP/2016) By order, Assistant. Registrar 4 ACIT, Circle-1, Jaipur v. M/s Gemco