1. IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR
BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND
SHRI N.K. SAINI, ACCOUNTANT MEMBER.
MA No.47/Jodh/2014
(Arising out of ITA No. 319/Jodh/2013)
(Assessment Year : 2009-10)
Shri Gouri Shankar Singhal,
Prop. M/s. Amit Distributors,
64, New Cloth Market,
Sriganganagar
Vs. ITO, Ward-1,
Sriganganagar
PAN No. AETPS 0047 N
(Appellant)
(Respondent)
Appellant by : Shri Suresh Ojha.
Department by : Shri Jai Singh - D.R.
Date of hearing : 26-08-2014
Date of pronouncement : 09-09-2014
O R D E R
PER N.K. SAINI, A.M.
This Miscellaneous Application filed by the assessee is arising out of
the order dated 13-12-2013 in ITA No. 319/Jodh/2013 & C.O. No.
28/Jodh/2013 for the A.Y. 2009-10.

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2 In this miscellaneous application, assessee has submitted that the
ITAT at page No. 12 of the aforesaid order dated 13/12/2013 has
observed as under:-
“CIT(A) directed the Assessing Authority to apply GP rate on the basis
of rate of immediately two assessment years and maximum rate of
7.19% declared by the assessee and accepted by the department in the
assessment year 2007-08 was directed to be applied. In our opinion
the view taken by the CIT(A) was justified, so it does not require any
interference.”
3. The assessee has submitted that the Ld. CIT(A) has relied upon the
order of the Special Bench in the case of M/s. Allied Construction Co.
reported in 105 ITD page 1, wherein it has been held that past history
should be accepted and the rate of previous year should be considered
only as reasonable. The assessee has stated that the past history has not
been followed in this case therefore, there was a mistake apparent from
the record which requires rectification u/s. 254(2) of the I.T. Act, 1961
(hereinafter referred to as ‘the Act’ in short).
4. During the course of hearing, learned counsel for the assessee
reiterated the contents of the Misc. Application dated 15/04/2014 and
submitted that in the immediately preceding year, the gross profit rate
declared was 6.21% and in the year earlier to the preceding year i.e. A.Y.

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2007-08, the gross profit rate declared was 7.19%. Therefore, the gross
profit rate of 6.21% was accepted in the immediately preceding year, the
same should have been applied for the year under consideration instead
of 7.19%.
5. In his rival submissions, learned D.R. submitted that by filing this
Misc. Application, the assessee wants to get the order dated 13/12/2013
reviewed, which is not permissible u/s. 254(2) of the Act. It was further
stated that the Ld. CIT(A) as well as ITAT has considered the past history
of the assessee’s case and since the gross profit rate declared and
accepted by the Department in the A.Y. 2007-08 was near to the facts
involved in the year under consideration, therefore, the Ld. CIT(A)
directed the Assessing Officer to apply gross profit rate of 7.19% instead
of 17.22% directed by the Assessing Officer to be applied and 5.98%
declared by the assessee. The said view expressed by the Ld. CIT(A) has
been upheld by the ITAT, so there is no mistake apparent from the record
and a just view has been taken by the ITAT which cannot be reviewed
u/s. 254(2) of the Act.
6. We have considered the submissions of both the parties and
carefully gone through the material available on record. In the present

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case, it is an admitted fact that the assessee declared the gross profit
rate of 5.98% for the year under consideration and the Assessing Officer
rejected the books of accounts and after rejecting the books of accounts
u/s. 145(3) of the Act, the Assessing Officer applied gross profit rate of
17.22% instead of 5.98% declared by the assessee. Against the said order,
the assessee preferred an appeal before the Ld. CIT(A), who directed the
Assessing Officer after considering the past history of the assessee’s case
to apply gross profit rate of 7.19% declared by the assessee, which was
accepted by the department for the A.Y. 2007-08, since the facts of the
said year were near to the facts for the year under consideration.
Against the said action of the Ld. CIT(A), the Department preferred an
appeal and the assessee in its cross objection although challenged the
rejection of books of accounts u/s. 145 of the Act, but did not challenge
the action of the Ld. CIT(A) in directing the Assessing Officer to apply
gross profit rate of 7.19% considering the past history. Therefore, there
is not mistake in the order of the Tribunal because the appeal preferred
by the Department was dismissed as such there should not have been any
grievance to the assessee. It is well settled that as per the provisions of
section 254(2) of the Act only mistake apparent from the record can be
rectified and no power has been given to the ITAT to review the order.

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In the present case, the ITAT vide order dated 13/12/2013 had confirmed
the view taken by the Ld. CIT(A) by observing that gross profit rate of
7.19% was more reasonable looking to the facts and the past history of
the assessee’s case. Accordingly, the Ld. CIT(A) directed the Assessing
Officer to apply gross profit rate of 7.19% and that view expressed by the
Ld. CIT(A) has been upheld by the ITAT. We, therefore, are of the view
that there is no merit in this Misc. Application filed by the assessee.
7 In the result, the Misc. Application filed by the assessee is
dismissed.
(Order Pronounced in the Open Court on this 09-09-2014.)
Sd/- sd/-
(HARI OM MARATHA) (N.K. SAINI)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Dated: 09th
September, 2014
vr/-
Copy to:-
1.The Appellant
2. The Respondent
3. The ld. CIT
4. The ld. CIT(A)
5. The DR
6. The Guard File
Sr. Private Secretary,
ITAT, Jodhpur .