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TMI Blog2015 (7) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... e has not pointed out any mistake on the decision rendered on the issues relating to validity of reopening of assessments. Hence the grounds relating to validity of reopening of assessments need not be recalled - Decided in part in favour of revenue. - MISC.APPLICATION Nos.337 to 341/Mum/2014 arising out of I.T.A. No.4059 to 4063/Mum/200 - - - Dated:- 8-7-2015 - S/Shri D. Manmohan and B.R.Baskaran, JJ. For the Petitioner : Shri Vivek Perampurna For the Respondent : S/Shri Prakash G Jhunjhunwala and Rajkumar Jaju ORDER Per B.R.BASKARAN, Accountant Member: The revenue has filed these miscellaneous petitions seeking recall of the common order dated 15-07-2010 passed by the Tribunal in ITA Nos. 4059 to 4063/Mum/2009 relating to assessment years 2000-01 to 2004-05 against the appeals filed by the assessee. 2. The assessee had filed appeals challenging the orders passed by Ld CIT(A) for the above said years, wherein he had confirmed the validity of re-opening of assessments and granted partial relief in respect of additions of Gross Profit made by the AO towards suppressed sales. The Tribunal confirmed the order of Ld CIT(A) in upholding the validity of re-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower theft has already been deleted by Ld CIT(A) and hence the said addition was not agitated by the assessee before the Tribunal. The assessee has only agitated the addition of Gross Profit made on Suppressed production/sales on account of suppressed electricity charges. 7. Accordingly it has been pointed out by the revenue that the Tribunal has deleted the addition made in AY 2001-02 to 2004-05 also on wrong appreciation of facts and the same has resulted in a mistake apparent from record. Accordingly it has been prayed that the common order, referred above, should be recalled. 8. The Ld A.R appearing before us strongly opposed the miscellaneous petitions filed by the revenue. He submitted that the Tribunal has deleted the addition by on proper reasoning by observing that the methodology adopted by the assessing officer to determine the addition is fraught with many fallacies. He submitted that the Tribunal has deleted the additions with the observations that mere alleged disparity in consumption of electricity units cannot be a reason for estimating the turnover, since the production quantity would depend upon various other factors. Accordingly he submitted that the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed appeal before the High Court. The reasoning given by the Tribunal was that the judicial propriety does not allow the assessee to seek efficacious remedy simultaneously before two authorities. The said order was challenged by M/s R.W Promotions P Ltd before the Hon ble Bombay High Court. The Hon ble High Court, vide its order dated 08-04-2015 passed in W.P No.2238 of 2014, set aside the order of the Tribunal and directed the Tribunal to dispose of the miscellaneous application filed by M/s R.W. Promotions P Ltd (supra) in accordance with the law. 12. The relevant observations made by Hon ble High Court of Bombay are extracted below:- 9. After hearing both sides and perusing the two legal provisions, namely under section 254 as reproduced above, and section 260A of the Income tax Act, 1961 we are of the view that the Tribunal s order and impugned in the Writ Petition cannot be sustained. This Court also has clarified the legal position in an order passed copy of which is annexed at page 146 of the petition paper book. We have noted that such a power is possessed by the Court or Tribunal and even after it disposes of the main matter and application of the nature made a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad and reject the application only on the ground that the petitioner-assessee has invoked the appellate powers of higher Court cannot be sustained. That is contrary to the plain language of the two statutory provisions and which have been brought to our notice. Nothing contrary having been pointed out and such a view of the Tribunal may affect and prejudicially the interest of the revenue that all the more we cannot sustain the impugned order. The Writ Petition is allowed. The petitioners misc. application seeking to invoke the powers under sub.section (2) of section 254 of the Income tax Act, 1961 being Misc. Application No.194/M/2013 shall now be heard by the Tribunal and it shall be decided in accordance with law .. In view of the decision of the Hon ble jurisdictional Bombay High Court, the power given to the Tribunal u/s 254(2) can be exercised by the Tribunal, even if the order passed by the Tribunal u/s 254(1) has been challenged u/s 260A of the Act before the High Court. 13. Coming to the merits of the miscellaneous petitions filed by the revenue, we notice that the revenue has pointed out that the addition of Gross Profit on suppressed production/sales was made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeded to estimate the income arbitrarily and without any basis but an identical mistake was perpetuated by the CIT(A) by estimating the yield at 1.75 Kgs, which also has no basis. When an Expert s Report is placed on record, findings therein should be given preference and learned CIT(A) ought not have estimated the production on an arbitrary basis by assuming that the Additional Sessions Judge, Palghar had acquitted the partner by merely giving benefit of doubt. A careful perusal of the Order passed by the Additional District Judge, Palghar (which was considered by earlier Benches of ITAT) shows that the Court has categorically noticed that the seals were found intact and it would be stretching things too far to conclude that somebody has tampered with the meter. The Court has taken judicial notice of the fact that whenever glass goes inside the meter it can be replaced in the original position only if the meter is opened. In other words, meter has not been tampered with. In view of the categorical findings of the Additional Sessions Judge, Palghar, and admitted by the ITAT in the case of the assessee for the assessment years 1998- 99 and 1999-2000 as well as in the case of sister ..... X X X X Extracts X X X X X X X X Extracts X X X X
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