B S GUPTA V. COMMISSIONER OF INCOME TAX

ITA/181/2002

AI Insights

The case involves an appeal by B S Gupta against the Commissioner of Income Tax, where the appellant contested the Tribunal's decision which dismissed his appeal. The primary contention was the non-production of a crucial document by the department, which the Tribunal did not adequately address. The High Court noted that the Tribunal had erred in presuming against the department without verifying the original records, leading to the decision to remit the case back to the Tribunal for a thorough re-examination.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 684443 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 24-01-2017
• Assessment Year: misc
• Other Referred Cases: (2010) 321 ITR 362
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Department Lawyers: PARINITOO JAIN
• Assessee Lawyers: SANJAY JHANWAR
• Keywords: Income Tax; Manipulation of records; Non-production of documents; Tribunal

Judgement Text

"HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D.B. Income Tax Appeal No. 181 / 2002 B S Gupta ----Appellant Versus Commissioner Of Income Tax ----Respondent _____________________________________________________ For Appellant(s) : Mr. Sanjay Jhanwar For Respondent(s) : Ms. Parinitoo Jain _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VINIT KUMAR MATHUR Judgment / Order 24/01/2017 1. By way of this appeal, the appellant has assailed the judgment & order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee in spite of the fact that it has partly allowed the ground on merits in spite of the fact that it was specifically contended that the document which has sought to be produced by the department was not produced. 2. Last time when the matter was called out, we have passed following order on 17th January, 2017, which reads as under:- “Heard counsel for the parties. The first issue is covered by the decision of the Hon’ble Supreme Court in (2010) 321 ITR 362. Mr. Sanjay Jhanwar has pointed out that for issue No. 2, the Tribunal has observed as under:- “Parties have been heard with reference to material on record. Through the written submissions, the assessee has contended that the application of profit rate at 8% is (2 of 3) [ITA-181/2002] reasonable. We also find that presumptive tax @ 8% in case of contractors has been brought in the statute with effect from assessment year 94-95. Keeping in view the legislative intention and the history of the case, we direct the assessing officer to apply a profit rate of 8% on the contract receipts as worked out by the Id. Commissioner of Income tax (Appeals). This being so, we do not find any merit in assessee’s plea for allowing separate deduction for sales -tax payments of Rs. 78,906/- made by him. If department is desirous to produce on record the document, they may do so. As a last chance, matter be listed on 24th January, 2017. It is made clear that no further time will be granted. It will be open to presume against the department. Copy of the order be furnished to Ms. Parinitoo Jain to take follow up action with the department looking to the importance of the order. 3. We have called upon the department to produce the same, however, the case is of the three different addresses of the assessee. They could not trace the file. However, the view taken by the Tribunal is required to be set aside only on the ground of appeal where this word has been used with reference to the fact of knowledge in conjunction to the facts stated by him. He was not able to precisely state as to what the manipulation has been done by the departmental authorities. 4. Even otherwise for the lack of any material before us and for non-production of any record by the revenue, a clear case of manipulation has not been made by the assessee and the ground for manipulation of record by the assessee stands rejected. (3 of 3) [ITA-181/2002] 5. In our opinion, the Tribunal ought to have verified the original record. Only on that ground, we have set aside the order of the Tribunal and remitting back the matter to the Tribunal. The Tribunal will consider the law prevailing as on today. 6. Both the parties will appear before the Tribunal on 13th March, 2017 and the Tribunal will dispose off the appeal within three months of appearance of both the parties and will decide all contentions raised by the parties. 7. It is made clear that we have not expressed any opinion on merits and this income tax appeal is remitted back to the Tribunal only on the ground that in spite of the non-production of the documents, the Tribunal has seriously committed an error in presuming against the department for non-production of documents. 8. Accordingly, the appeal stands disposed off. (VINIT KUMAR MATHUR)J. (K.S. JHAVERI)J. A.Sharma/137 "