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Income Tax Appellate Tribunal, “SMC” BENCH, MUMBAI
Before: SRI MAHAVIR SINGH
O R D E R भहावीय स िंह, उऩाध्मक्ष के द्वाया / PER MAHAVIR SINGH, VP: This appeal of the assessee is arising out of order of the Commissioner of Income Tax (Appeals)]-54, Mumbai [in short CIT(A)], in appeal No. CIT(A)-30/IT-933/ ITO 19(2)(4) 2016-17 vide dated 14.06.2019. The Assessment was framed by the Income Tax Officer, Ward-19(2)(4), Mumbai (in short ITO/ AO) for the A.Y. 2010-11 vide order dated 21.01.2016 under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).
At the outset, it is noticed that this appeal is delayed by 479 days. The date of receipt of order of CIT(A) was 20.06.2019 and the appeal was filed in Tribunal on 14.12.2020. The details given by assessee reads as under:-
2 Shri Omprakash Hukmaram Vishnoi; AY 10 -11 Date of order received by Assessee 26.06.2019 Date of appeal field before your honour 14.12.2020 Delay in filing appeal 479 Days (including period of lock down) Period of Limitation extended by decision of With effect from 15.03.2020 to 14.03.2021 Hon’ble Supreme Court Delay covered by decision of Hon’ble 15.03.2020 to 14.12.2020 i.e. 274 Days Supreme Court decision Delay which is not covered by Hon’ble 205 Days 9479 Days minus 274 Days) Supreme court decision i.e. due to reason beyond control of Assessee 3. The learned Counsel for the assessee filed copy of Supreme Court order in Suo Motu Writ Petition (Civil) No. 3 of 2020 dated 08.03.2021 and pleaded that the delay be condoned for the reason that the assessee after handing over the papers to his erstwhile consultants went to his native place. The assessee was of the bonafide belief that the erstwhile consultant would file the appeal and he came in the month of February, 2020 for the hearing of the appeal for the AY 2011-12, wherein similar issues were pending but the assessee found that his erstwhile consultant has not file the appeal for Assessment Year 2010-11 and then he started to consult some other consultant who could file the appeal for the Assessment Year 2010-11 i.e. year under consideration. But before he could finalize new tax consultant, Govt. of India impose lockdown due to Covid-19 and therefore, there was a total 479 days delay.
When these facts were confronted to the learned Sr. Dr. Smt. Smita Verma, she could not controvert the above facts.
In view of the above given facts, I condoned the delay and admit the appeal.
3 Shri Omprakash Hukmaram Vishnoi; AY 10 -11 6. The only issue in this appeal of assessee is as regards to the order of CIT(A) by estimation of profit rate at 12.5% as against 100% addition made by Assessing Officer. For this, assessee has raised the following ground No.1:-
1. On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in confirming addition of ₹14,79,640/- on account of alleged bogus purchases i.e. 12.50 minus existing GP.
I have heard the rival contentions and gone through the facts and circumstances of the case. I noted that the assessee’s appeal for Assessment Year 2011-12 in was pronounced on 18.02.2020, wherein the assessee’s GP was estimated at 2% by observing as under:-
“4. In the appellate proceedings, Ld. CIT(A) partly allowed the appeal of the assessee by directing the AO to apply a rate which is calculated by reducing the GP declared by the assessee during the year from 12.5% applied by the AO.
5. In this case, since the assessee is a petty trader dealing in ferrous and non ferrous metal items, the rate applied by the Ld. CIT(A) is excessive and unreasonable and if sustained would lead to hypothetical result. Since the GP in the ferrous and non ferrous is very low and keeping in view of the condition of assessee being a petty scrap dealer the order of Ld. CIT(A) is reversed and AO is directed to apply GP of 2%.”
Now, before me, the assessee vide letter dated 29.09.2021 agreed by writing as under:-