K.D. KOTHARI AND CO., v. ASST CIT,

MA 41/MUM/2013 | 2007-2008
Pronouncement Date: 05-07-2013 | Result: Allowed

Appeal Details

RSA Number 4119924 RSA 2013
Assessee PAN AAAFK1373N
Bench Mumbai
Appeal Number MA 41/MUM/2013
Duration Of Justice 5 month(s) 5 day(s)
Appellant K.D. KOTHARI AND CO.,
Respondent ASST CIT,
Appeal Type Miscellaneous Application
Pronouncement Date 05-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 05-07-2013
Assessment Year 2007-2008
Appeal Filed On 30-01-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A MUMBAI .. ! ' ## $ ! % BEFORE SHRI R.S.SYAL AM AND SHRI SANJAY GARG JM && !' ./ MA NO.41/MUM/2013 ( )*+ / ARISING OUT OF ITA NO.2286/MUM/2010) ( $' - $' - $' - $' - / / / / ASST.YEAR 2007-2008) M/S.K.D.KOTHARI & CO. 1215 PRASAD CHAMBERS OPERA HOUSE MUMBAI 400 004. PAN : AAAFK1373N. THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 16(1) MUMBAI. ( ! / // / APPLICANT) ' ' ' ' / VS. ( ./01/ RESPONDENT) ! 2 22 2 3 3 3 3 / APPLICANT BY : SHRI B.V.JHAVERI ./01 2 3 2 3 2 3 2 3 / RESPONDENT BY : --- NONE --- ' 2 + / / / / DATE OF HEARING : 05.07.2013. 45- 2 + / DATE OF PRONOUNCEMENT : 05.07.2013. !6 !6 !6 !6 / / / / O R D E R PER R.S.SYAL AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FO R THE RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 25 TH APRIL 2012 PASSED IN ITA NO.2286/MUM/2010 FOR THE CAPTIONED AS SESSMENT YEAR. 2. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT GROUND NO.5 TAKEN BY THE ASSESSEE IN ITS APPEAL REMAINED TO BE DISPOSED BY WHICH THE ASSESSEE HAD CHALLENGED THE SUSTENANCE OF ADDIT ION AT THE RATE OF 10% IN RESPECT OF TRANSACTIONS WITH MR. A. DARSHAN. THERE IS NO MA NO.41/MUM/2013 M/S.K.D.KOTHARI & CO. 2 APPEARANCE FROM THE SIDE OF THE DEPARTMENT. WE ARE THEREFORE PROCEEDING TO DISPOSE OFF THE MISCELLANEOUS APPLICA TION EX PARTE QUA THE REVENUE. 3. IT IS NOTICED THAT THE ASSESSEE WAS FOUND TO BE ENGAGED IN CARRYING ON BUSINESS OUTSIDE ITS BOOKS OF ACCOUNT. THERE WERE TWO TYPES OF TRANSACTIONS OF UNRECORDED BUSINESS. THE F IRST TOTALED AT ` 18.37 CRORE AS PER TABLE ON PAGE 4 OF THE ASSESSMEN T ORDER. THEN THERE IS ANOTHER SET OF TRANSACTION TOTALING ` 25.87 LAKH WITH MR. A. DARSHAN. THE ASSESSING OFFICER APPLIED 20% PROFIT R ATE ON BOTH THE SETS OF TRANSACTIONS THEREBY MAKING ADDITION OF ` 3.67 CRORE AND ` 5.37 LAKH RESPECTIVELY. THE LEARNED CIT(A) REDUCED THE R ATE OF PROFIT TO 10% IN RESPECT OF BOTH THE SETS OF TRANSACTIONS. TH E ASSESSEE CHALLENGED THE SUSTENANCE OF ADDITION IN RESPECT OF FIRST SET OF TRANSACTIONS THROUGH GROUND NOS.1 TO 4 AND SECOND S ET OF TRANSACTIONS THROUGH GROUND NO.5. THE TRIBUNAL WHILE PASSING TH E ORDER U/S 254(1) HELD THAT THE CORRECT PROFIT PERCENTAGE TO BE APPLIED IS 3% IN CONFORMITY WITH THE VIEW TAKEN BY THE TRIBUNAL IN T HE IMMEDIATELY PRECEDING YEAR. THE SAID DECISION OF 3% PROFIT RATE THOUGH HAS BEEN REFERRED TO ALL THE GROUNDS OF APPEAL IN COMMON BU T SPECIFICALLY DEALT WITH ONLY THE FIRST SET OF TRANSACTIONS. WE THEREF ORE AMEND THE ORDER BY HOLDING THAT 3% PROFIT RATE SHOULD BE APPLIED IN RESPECT OF SECOND SET OF TRANSACTIONS ALSO TOTALING ` 26.87 LAKH AS AGAINST 20% APPLIED BY THE A.O. AND REDUCED TO 10% BY THE LD. CIT(A). T HE IMPUGNED ORDER IS ACCORDINGLY RECTIFIED TO THIS EXTENT. MA NO.41/MUM/2013 M/S.K.D.KOTHARI & CO. 3 4. 7 +8 ! 2 && !' + 2 '+ 9: ; IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED PRO TANTO . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 5 TH JULY 2013. !6 2 45- &-+ !6 2 .$+=& >&-+ !6 2 .$+=& >&-+ !6 2 .$+=& >&-+/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPLICANT. 2. ./01 / THE RESPONDENT. 3. ? () / THE CIT(A) - XVI MUMBAI. 4. ? / CIT 5. &B# .$+$' / DR ITAT MUMBAI 6. #C D / GUARD FILE. !6' !6' !6' !6' / BY ORDER /&+ .$+ //TRUE COPY// ) ) ) )/ // /9 ' 9 ' 9 ' 9 ' ( DY./ASSTT. REGISTRAR) / ITAT MUMBAI