A.C.I.T.-Cc-Xxi,Kolkata, Kolkata vs Assessee

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri P. K. Bansal, AM & Shri Mahavir Singh, JM] M. A. No. 03/Kol/2015 In I.T.A No. 1785/Kol/2012 Assessment Year: 1988-89

Assistant Commissioner of Income-tax, Vs. M/s. Central Roller Flour Mills (P) Ltd. Central Circle-XXI, Kolkata. (PAN: AABCC8240N) (Applicant) (Respondent)

Date of hearing : 01.05.2015 Date of pronouncement: 07.05.2015

For the Applicant: Shri Sanjay, Addl. CIT For the Respondent: Shri S. K. Tulsiyan, Advocate

ORDER

Per Mahavir Singh, JM:

By this miscellaneous application, the revenue has requested for recalling of the order on the reason that the jurisdictional High court is in favour of revenue for AY 1987- 88, and the ground raised in this Misc. Petition reads as under:

"Whether, in the facts and circumstances of the case, Hon'ble ITAT has erred in deciding the appeal against Revenue ignoring the order passed by the jurisdictional High court in favour of the Revenue for AY 1987-88 dated 26.06.2014 of this particular assessee on identical issue."

2. At the time of hearing, Ld. DR contended that in both the assessment order i.e. 1989-90 (the year under consideration) and 1989-90 the gross profit of the assessee has been estimated by the AO at 15% of the sales including the sale made to AHD, Bihar for the reason that after repeated opportunities assessee did not produce books of account and supporting document. Therefore, the gross profit rate was estimated and on estimation the penalty was levied by the AO but CIT(A) deleted the penalty and ITAT vide its order in ITA No. 1785/K/2012 dated 16.07.2013 dismissed the revenue's appeal confirming the deletion of penalty by CIT(A). According to Ld. Sr. DR, this issue is covered by Hon'ble High Court's order in assessee's own case. On the other hand, Ld. Counsel for the assessee filed copy of the judgment of Hon'ble Calcutta High Court in assessee's own case in ITAT No.168 of 2013 in GA No. 3194 of 2013 dated 26.06.2014 and drew our attention to page 14 of the order that in the case of low tax effect the appeal of revenue was dismissed. He drew our attention to following two paras, which read as under:

"In that view of the matter, it is directed that in the event the appeal arising out of the assessment year 1991 involves tax effect of less than Rs. 10 lakhs, then the 2 MA No.03/K/2015 Central Roller Flour Mills (P) Ltd..

A. Y 1988-89

appeal for the concerned year shall stand dismissed. The verification shall be made by the appropriate authority.

The appeal in so far as it is directed against the assessment year 1987-88 is allowed. It is clarified that in the event it is found that tax effect for the assessment year 1990-91 is more than rs.10 lakhs, then the appeal shall stand fully allowed."

3. Ld. Counsel for the assessee stated that even now the tax effect in the appeal of revenue is less than Rs. 4 lakhs precisely the penalty is Rs.3,93,358/-. In view of this and respectfully following the Hon'ble jurisdictional High Court decision, we feel that there is no mistake apparent from record as this is also a case of low tax effect as enunciated by Hon'ble Calcutta High Court. In terms of the above, we dismiss this Misc. Application of the revenue.

4. In the result, Misc. application of revenue is dismissed.

Order is pronounced in the open court on 07.05.2015

Sd/- Sd/-

(P. K. Bansal) (Mahavir Singh) Accountant Member Judicial Member

Dated : 7th May, 2015 Jd.(Sr.P.S.)

Copy of the order forwarded to:

1. Applicant : ACIT, Central Circle-XXI, Kolkata. .

2 Respondent -M/s. Central Roller Flour Mills (P) Ltd., 14A, FMC Fortuna, 5th floor, 234/3A, A.J.C. Bose Road, Kolkata-700 020

3. The CIT(A) , Kolkata

4. CIT, Kolkata

5. DR, Kolkata Benches, Kolkata

True Copy, By order,

Asstt. Registrar.