TMI Blog2021 (4) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excluded and the Revenue has no objection where the miscellaneous application is admitted by the Bench. 4. Heard both the parties and purused the material available on record. We respectfully note that the Hon ble Supreme in aforesaid suo- moto matter has laid down that period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f 15th March 2020 till further orders. Thereafter, the Hon ble Supreme Court in terms of subsequent order dated 22.05.2020 has held that in the cases 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. We also take note of the fact that the Ministry of Law and Justice, Govt. of India has also issued a notification dated 31.03.2020 wherein the due dates which falls during the period 20.03.2020 to 29.06.2020 has been extended to 30th June, 2020 in respect of appeals and applications under the specified Act which in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Tribunal and therefore, where the Tribunal has relied on the said decisions even though the decisions are of the Jurisdictional High Court, given the fact that the assessee has not been provided an opportunity to present its case and the fact that the said decisions doesn t lay a legal proposition that only past history has to be considered as wrongly appreciated by the Tribunal rather it has held that either the past history of the assessee or history of similarly situated other businesses to be considered and are therefore distinguishable, there is a clear violation of principle of natural justice where the assessee has not been provided an opportunity to rebut the same. In support, reliance was placed on the Hon ble Bombay High Court decision in case of Inventure Growth and Securities Ltd vs ITAT [2010] 324 ITR 319. It was further submitted that even the past history of the assessee has not been correctly appreciated while estimating the GP rate and the Tribunal has completely overlooked the declining trend in the GP rate given the specific facts and circumstances of the case and has simply applied average G.P rate. It was accordingly submitted that these apparent mistakes on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable 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 the miscellaneous application so filed by the assessee deserve to be dismissed. 7. We have heard the rival contentions and perused the material available on record. The subject matter of the present misc. application is limited to the appeal filed by the department where it has challenged the findings of the ld CIT(A) in deleting the addition of ₹ 1,88,80,279/- and which has been sustained by the Coordinate Bench vide the impugned order dated 9.12.2019 and in particular, the findings at para 9 of the said order where it has discussed the basis for estimation of G.P rate after the rejection of the books of accounts. We have carefully gone through the said findings of the Coordinate Bench and note that the Coordinate Bench has referred and relied on two decisions of the Hon ble Rajasthan High Court in case of CIT vs Gupta KN Constructions (supra) and Clarity Gold Pvt ltd (supra). Though it is not unusual for the Bench to refer and rely on the decisions after doing its own research and especially where the decisions are that of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 squarely attracted to the facts of the present case, we may not have been inclined to remand the proceedings. An order of remand cannot be an exercise in futility. However, for the reasons which we have already indicated, we find prima facie that prejudice would be sustained by the petitioner by denying him an opportunity to deal with the distinguishing features in the case of Khandwala Finance Ltd. (supra). 9. For all these reasons, we allow the petition by setting aside the impugned order of the Tribunal dated 20-11-2009. Miscellaneous Application No. 515/Mum./09 is accordingly allowed. The order of the Tribunal dated 30-5- 2008 on this issue is accordingly recalled and both the appeal and the cross- objections shall stand restored to the file of the Tribunal for a fresh decision on merits. All the rights and contentions of the parties on merits are kept open to be urged in the appeal and the cross-objections. 8. In the aforesaid decision, the Hon ble High Court has held that it cannot be laid down as an inflexible pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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