9911796707
TMI Blog2021 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ective of limitation prescribed under the general law or under any special laws, whether compoundable or not, shall stand extend w.e.f 15.03.2020 till further orders. It was further submitted that in terms of subsequent order dated 22.05.2020, the Hon'ble Supreme Court has held that in the case where the limitation expired after 15.03.2020, than the period from 15.03.2020 till the date on which the lock down is lifted in the jurisdictional area where dispute lies or where the cause of action arises shall be extended for a period of 15 days after lifting of the lockdown. It was submitted that in the present case, the assessee being resident of Kota only partial lockdown was lifted by the Rajasthan Government and complete lockdown only on 18.01.2021. It was accordingly submitted that where the said period of lock down is excluded, the miscellaneous application has been filed without any delay and the same may be admitted for necessary adjudication. 3. Per contra, the ld. DR fairly submitted that as per the orders passed by the Hon'ble Supreme Court, the period of lockdown may be excluded and the Revenue has no objection where the miscellaneous application is admitted by the Bench. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this regard, the ld. AR taken us through the findings of the ld. CIT(A) and submitted that the findings of the Tribunal are completely contrary to the facts available on record and infact, the ld CIT(A) has recorded a detailed finding with regard to the fall in G.P rate in case of the assessee. It was further submitted that the assessee has submitted a detailed comparative charts before the Tribunal as part of its written submission showing that average cost of purchase increased by Rs. 19.47 per kg, however, the selling price has increased only by Rs. 6.50 kgs which has resulted in loss in the year under consideration and therefore, immediately past A.Y 2014-15 is not comparable. It was further submitted that the Tribunal has relied on the decisions of the Hon'ble Rajasthan High Court in case of CIT vs. Gupta K. N. Construction Co. (2015) 116 DTR 377 (Raj) and Clarity Gold Pvt. Ltd vs. Principal CIT, 102 taxmann.com 421 (Raj.) while passing the impugned order. However, these decisions were not cited and argued upon by the either side at the time of hearing before Tribunal and therefore, where the Tribunal has relied on the said decisions even though the decisions are of the Jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that issue of rejection of books of accounts and part addition sustained by the ld CIT(A) whereby he has considered the increase in the GP rate by 0.08% is not before it and not in dispute so far as appeal of the Revenue is concerned. It was accordingly submitted that so far as the rejection of books of accounts u/s 145(3) and sustenance of addition of Rs. 39,74,797/- by the ld CIT(A) is concerned, the same has attained finality and the subject matter of the present misc. application is thus limited to the appeal filed by the department where it has challenged the findings of the ld CIT(A) in deleting the addition of Rs. 1,88,80,279/- and which has been sustained by the Tribunal vide the impugned order dated 9.12.2019. In this regard, the ld DR taken us through the findings of the Tribunal at para 9 of its order and submitted that the Tribunal has passed a detailed speaking order considering the decisions of the Hon'ble Jurisdictional High Court, the findings of the ld CIT(A) as well as past history of the assessee for determining reasonable basis for estimating the G.P rate and therefore, there is no mistake which is apparent on the face of the order so passed by the Tribunal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court to hold that an opportunity should be granted to the petitioner to place its case on the applicability or otherwise of the decision in Khandwala Finance Ltd.'s case (supra) before the Tribunal. 8. It is in these circumstances that we are inclined to allow the Miscellaneous Application and to restore the appeal and the cross-objections for fresh consideration before the Tribunal. We clarify that it cannot be laid down as an inflexible proposition of law that an order of remand on a Miscellaneous Application under section 254(2) would be warranted merely because the Tribunal has relied upon a judgment which was not cited by either party before it. In each case, it is for the Court to consider as to whether a prima facie or arguable distinction has been made and which should have been considered by the Tribunal. It is in this view of the matter that we had called upon Counsel appearing on behalf of the assessee to at least prima facie indicate before this Court the grounds on which the decision in Khandwala Finance Ltd.'s case (supra) was sought to be distinguished. If we were to be of the view that the decision in Khandwala Finance Ltd.'s case (supra) was square ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
