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2021 (4) TMI 388 - AT - Income TaxRectifciation of mistake application u/s 254 - Delay in filing present miscellaneous application by 89 days - HELD THAT:- In the present case, due date for filing the miscellaneous applications u/s 254(2) being 30.06.2020 that is, within six months from the end of the month in which the order was pronounced on 28.09.2020 and the fact that the miscellaneous application has been filed with the Registry on 28.09.2020, respectfully following the decisions of the Hon’ble Supreme Court and the Taxation and other Laws (relaxation of certain provisions) Ordinance, 2020 as notified in the Gazette of India dated 31st March, 2020, the same is hereby admitted as filed within the extended due date in terms of section 254(2) of the Act. Non reference to judicial decisions - Basis for estimation of G.P rate after the rejection of the books of accounts - Glaring and patent mistakes apparent from the face of the record which requires appropriate rectification u/s section 254(2) - rejection of books of accounts and GP estimation - HELD THAT:- In the present case, we find that the Coordinate Bench has referred and relied upon the aforesaid two decisions of GUPTA, KN. CONSTRUCTION CO. [2015 (5) TMI 315 - RAJASTHAN HIGH COURT] and M/S. CLARITY GOLD PVT. LTD., M/S GEM MART INDIA PVT. LTD. [2018 (8) TMI 1318 - RAJASTHAN HIGH COURT] which have not been relied upon or quoted by either of the parties. The ld AR has contended that said decisions doesn’t lay a general legal proposition that only past history has to be considered rather it has held that either the past history of the assessee or history of similarly situated other businesses to be considered and we therefore prima facie find that such distinguishing features as pointed out by the ld AR has escaped the attention of the Coordinate Bench and which could have been considered had the said decisions being confronted to both the parties and an opportunity been given to them to file their respective submissions on applicability or distinguishing features of the said decisions. Further, the ld AR has submitted some distinguishing features which has resulted in fall in G.P rate during the year under consideration and non-comparability with the past years which also seems to have escaped the attention of the Coordinate Bench. Thus we deem it appropriate that the order so passed by the Coordinate Bench be recalled and matter be heard afresh for the purposes of adjudication of ground of appeal taken by the Revenue relating to deletion of addition
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