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Swastik Udyog, Jaipur v/s Ito, Tonk

    M.A. No. 112/JP of 2017, Arising Out of ITA No. 74/JP of 2017
    Decided On, 05 October 2018
    At, Income Tax Appellate Tribunal jaipur
    For the Appellant: Mahendra Gargieya, Advocate. For the Respondent: Roshanta Meena (JCIT).

Judgment Text
Vikram Singh Yadav, A.M.

1. The present miscellaneous application has been filed by the assessee against the order passed by the Co-ordinate Bench in ITA No. 74/JP/2017 dated 03/04/2017.

2. During the course of hearing, the ld. AR submitted that the AO has levied penalty on estimated trading addition after rejection of books of accounts u/s 145(3) of the Act. It was submitted that during the course of hearing, detail written submissions were filed and also decisions of the Jurisdictional High Court were cited on the proposition M/s Swastik Udyog, Tonk Vs. ITO, Tonk that there cannot be any levy of penalty on estimated addition made by the AO as a result of rejection of books of account. In this regard, our reference was drawn to the written submissions filed before the Co- ordinate Bench on 03.03.2017 where at para 3.2, the assessee has contended that no penalty on mere estimation can be levied and in support, reliance was placed on the decision of the Shiv Lal Tak v/s CIT 251 ITR 373 (Raj.) and CIT vs. Mahendra Singh Khedla 252 CTR 0453(2012) besides other decisions.

3. It was accordingly submitted by the ld AR that the written submissions as well as the decision of the Hon'ble Jurisdictional High Court have escaped the attention of the Co-ordinate Bench and therefore, there is a mistake which is apparent from the record and it was accordingly prayed that the order passed by the Co-ordinate Bench may kindly be recalled for hearing the matter afresh.

4. The ld. DR is heard who has opposed the miscellaneous application so filed by the assessee.

5. Having heard both the parties and pursuing material available on the record including the decision passed by the Co-ordinate Bench, it is noted that at para 5.4 of its order, the Co-ordinate Bench has taken note of the written submissions filed by the ld. AR. Therefore, as far as the filing of the written submissions is concerned, the same is available on the record and has been taken note of by the Coordinate Bench. Thereafter, the Co-ordinate Bench has given its finding in para 5.6 of its order wherein it has confirmed the levy of penalty by the AO. However, we find that there is no discussion regarding the applicability or M/s Swastik Udyog, Tonk Vs. ITO, Tonk otherwise of various Jurisdictional High Court decisions so cited by the ld. AR in his written submissions. In view of the same, we are of the view that the non-consideration of the decisions of the Jurisdictional High Court constitutes a mistake apparent from the record and in view

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of the same, we hereby recall the order passed by the Co-ordinate Bench dated 03/04/2017. The Registry is directed to fix the matter for hearing in due course. In the result, miscellaneous application so filed by the assessee is disposed off in light of above directions.