Commissioner Of Income Tax, Kota v. Shri Tarun Kumar Modi

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No. 36 / 2010 COMMISSIONER OF INCOME TAX, Kota ----Appellant Versus SHRI TARUN KUMAR MODI S/O SHRI GOVIND RAM MODI PROP., M/S TARUN OVERSEAS, 35-A, TALWANDI, KOTA ----Respondent _____________________________________________________ For Appellant(s) : Ms. Parinitoo Jain with Ms. Shiva Goyal.For Respondent(s) : Mr. P.K. Kasliwal. _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE INDERJEET SINGH Judgment 21/08/2017 1.By way of this appeal, the appellant has challenged thejudgment and order of the Tribunal whereby the tribunal hasdismissed the appeal of the department. 2.While admitting the appeal, this court on 19.11.2010 framed the following substantial question of law:- “(i)Whether in the facts and circumstances of the casethe ITAT was legally justified in deleting the additionof Rs.1,70,39,103/- made u/s 69C for unexplainedexpenditure and indirect expenses? (ii)Whether in the facts and circumstances of thecase the ITAT was legally justified in not upholding therejection of books of accounts u/s 145 and allowingthe deduction u/s 80HHC by deleting the addition ofRs. 2,15,35,983/- made on account of unexplainedexport Receipts?” 3.Counsel for the appellant has taken us to order of CIT(A)wherein while discussing the case it has been observed as under:- “Nothing that facts and circumstances in A.Y. 2002-03where the same as in A.Y. 2003-04, and for detailedreasons given in the assessment order of AY 2002-03,the books of accounts were rejected u/s. 145 and ‘thetrue income.. assessed on the basis of materialavailable on record.” 4.She has also taken us to the observation of the Tribunalwhich reads as under:- “We have heard the rival contentions and perused thefacts of the case. The dispute in the present appeal iswith regard to the fact as observed by the AO that theassessee has not made any purchases and no exportshave been made since M/s. Gemini Enterprises at NaviMumbi (Maharashtra) from whom the assessee hasclaimed to have made the purchases for export was notin existence was not in existence since notice sent us/s133(6) to said party M/s. Gemini Enterprises returnedback.” 5. Counsel for the appellant contended that appeal for the year2003-04 has been dismissed in low tax effect and for 2002-03specific contention was raised but the same was not considered bythe Tribunal. 6.We were inclined to allow the same but to protect theinterest of both the sides, we allow the appellant to make ROMapplication after 9 years and such application will be considered. 7.In view of the above since remitting the matter back at thisstage will have a repercussion on both sides therefore, if anapplication of ROM is made on or before 21.09.2017, the same willbe considered in accordance with law however, the period form2009 to 2017 will be taken into consideration for considering therectification application. The appropriate order will be passed afterhearing both the sides. 8.The appeal stands disposed off. It will be open for theappellant department to challenge this order as well as the orderpassed on ROM after the rectification application is decided. (INDERJEET SINGH),J. (K.S. JHAVERI),J. BMG/Mohit Grover Sr. No.62.