J M Mhatre Infra Pvt Ltd, Raigad V. Deputy Commissioner of Income tax,Panvel Circle, Panvel

CO 7/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 5091 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 06-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-07-2019
• Assessment Year: 2011-2012
• Appeal Filed On: 20-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Assessee Lawyers: KHUSHIRAM JADHWANI
• Keywords: Rejection of books of accounts; Set aside

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT SHRI S.S. VISWANETHRA RAVI, JM . / ITA NOS.2793 & 2794/PUN/2016 / ASSESSMENT YEARS : 2011-12 & 2012-13 THE DY.COMMISSIONER OF INCOME TAX, RAIGAD. .. ..APPELLANT. V/S J.M. MHATRE INFRA PVT., LTD., PLOT NO.57/58, MARKET YARD, SAHKAR NAGAR, PANVEL, RAIGAD. PAN : AACCJ2959E. RESPONDENT CO NOS.7 & 8/PUN/2019 (ARISING OUT OF ITA NOS.2793 & 2794/PUN/2016) ASSESSMENT YEARS : 2011-12 & 2012-13 J.M. MHATRE INFRA PVT., LTD., PLOT NO.57/58, MARKET YARD, SAHKAR NAGAR, PANVEL, RAIGAD. PAN : AACCJ2959E. .. ..CROSS - OBJECTOR. V/S THE DY.COMMISSIONER OF INCOME TAX, RAIGAD. APPELLANT IN APPEAL ASSESSEE BY : SHRI KHUSHIRAM JADHWANI. REVENUE BY : SHRI S.P. WALIMBE. / ORDER PER S.S. VISWANETHRA RAVI, JM : THE ABOVE SAID TWO APPEALS AND C.OS FILED BY THE REVENUE AND ASSESSEE RESPECTIVELY AGAINST THE SAME COMMON ORDER D ATED 30.09.2016 PASSED BY THE CIT(A)-II, THANE FOR A.YS.2011-12 AND 2012-13. / DATE OF HEARING : 04.11.2019 / DATE OF PRONOUNCEMENT: 06.11.2019 2 2. SINCE THE ISSUES RAISED IN BOTH THE APPEALS AND CROSS -OBJECTIONS ARE BASED ON SIMILAR IDENTICAL FACTS AND THEREFORE, WITH THE CONS ENT OF BOTH THE PARTIES, WE PROCEED TO HEAR THE APPEALS AND CROSS-OBJE CTIONS TOGETHER AND DISPOSE OF THE SAME BY THIS CONSOLIDATED ORDER FOR THE SA KE OF CONVENIENCE. WE SHALL TAKE THE ISSUE AND FACTS AND CIRCUMSTANCES IN AP PEAL NO.2793/PUN/2016 AS LEAD CASE. 3. THE ONLY EFFECTIVE ISSUE EMANATES AMONGST THREE GROU NDS RAISED TO BE DECIDED IS WHETHER THE CIT(A) IS JUSTIFIED IN RESTRICTING T HE RATE OF NET PROFIT AT 8% AND 4% AS AGAINST 9% AND 4.5% IN THE FACTS A ND CIRCUMSTANCES OF THE CASE. 4. HEARD BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE IS A FIRM AND FOR THE YEAR UNDER CONSIDERATION D ERIVED INCOME FROM GOVERNMENT CONTRACTS AND TRANSPORT CONTRACTS. THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.11,04,42,41 6/-. THE AO REJECTED THE BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT AND COMPLETED THE ASSESSMENT VIDE ITS ORDER DATED 28.03.2014 BY DETERMINING THE TOTAL INCOME OF RS.12,81,44,555/- BY ESTIMATING THE NET PROFIT AT 9 % AGAINST SELF-EXECUTED CONTRACT RECEIPTS AND 4.5% ON SUB-CONTRA CT RECEIPTS. THE CIT(A) RESTRICTED THE SAME AT 8% AND 4% RESPECTIVELY. W E FIND THE ORDER OF CO-ORDINATE BENCH OF THE TRIBUNAL OF MUMBAI IN ASSESSEES OWN CASE FOR A.Y. 2010-11 AT PAGE NO.68 OF THE PAPER BOOK WHEREIN WE FIND THE TRIBUNAL CONFIRMED THE ORDER OF CIT(A) IN ADOPTING NET PROF IT AT 10% ON CONTRACT RECEIPTS AND 5% ON SUB-CONTRACT RECEIPTS. 3 5. SHRI KUSHIRAM JADHWANI, LD.A.R. SUBMITTED THE ASSESSEE PREFERRED AN APPEAL BEFORE THE HONBLE HIGH COURT OF BOMBAY AGAINST THE ORDER DATED 21.12.2017 OF MUMBAI TRIBUNAL FOR A.Y. 2010-11 AND IT IS PENDING FOR ADJUDICATION. THERE IS NO DISPUTE IN THE FACTS AND CIRC UMSTANCES OF THE PRESENT APPEAL WITH THAT OF APPEAL FOR A.Y. 2010-11. 6. WE NOTE THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL, MUMBAI IN ITS ORDER TO COME TO A CONCLUSION IN CONFIRMING THE ORDER OF C IT(A) IN ESTIMATING THE NET PROFIT AT 10% AND 5% BY REFERRING TO THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2008-09 AND NO O RDER CONTRARY TO THE FINDING OF MUMBAI TRIBUNAL NOR ANY ORDER SUSPENDING THE SAME FROM HONBLE HIGH COURT OF MUMBAI IS ON RECORD. THEREFORE, WE A RE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY THE ORDER OF CIT(A) IS NOT JUSTIFIED AND HENCE, IT IS SET ASIDE. THUS, THE ORDER OF AO IN ADOPTING NET PROFIT AT 9% AND 4.5% ON CONTRACT RECEIPTS AND SUB-CONTRACT RECEIPT S RESPECTIVELY IS RESTORED. GROUND NO.1 RAISED BY THE REVENUE IS ALLOWED. 7. GROUND NOS.2 AND 3 ARE GENERAL IN NATURE REQUIRING N O ADJUDICATION FROM US. HENCE, BOTH ARE DISMISSED. 8. IN THE RESULT, APPEAL IN ITA NO.2793/PUN/2016 IS PARTLY ALLOWE D. 9. NOW WE SHALL TAKE UP ITA NO.2794/PUN/2016 AS DISCUSSED ABOVE . 10. WE FIND THE ONLY EFFECTIVE GROUND RAISED BY THE REVEN UE IN THIS APPEAL ARE SIMILAR TO THE GROUND NO.1 IN ITA NO.2793/PUN/ 2016. THEREFORE, THE VIEW EXPRESSED BY US IN GROUND NO.1 IN ITA NO.2793/PUN/2016 IS EQUALLY APPLICABLE TO GROUND NO.1 IN I TA 4 NO.2794/PUN/2016. THUS, THE GROUND NO.1 RAISED BY THE REVENUE IS ALLOWED. 11. GROUND NOS.2 AND 3 ARE GENERAL IN NATURE REQUIRING NO ADJUDICATION FROM US. HENCE, BOTH ARE DISMISSED. 12. NOW, WE SHALL TAKE UP C.O.NOS.7 & 8/PUN/2019 FILED BY TH E ASSESSEE. 13. SHRI KUSHIRAM JADHWANI, THE LD.A.R. SUBMITS THAT THE A SSESSEE HAS NO INTEREST IN PROSECUTING THE ONLY GROUND RAISED IN CRO SS-OBJECTIONS AND PRAYED TO DISMISS THE SAME AS NOT PRESSED. THEREFORE, GROUNDS RAISED BY THE ASSESSEE IN BOTH THE C.OS ARE DISMISSED AS NOT PRESSED. 14. IN THE RESULT, THE C.OS OF ASSESSEE ARE DISMISSED. 15. TO SUM UP, APPEALS OF REVENUE ARE PARTLY ALLOWED AND THE C.OS OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 6 TH DAY OF NOVEMBER, 2018. SD/- SD/- (R.S. SYAL) (S.S. VISWANETHRA RAVI) VICE PRESIDENT JUDICIAL MEMBER PUNE; DATED : 6 TH NOVEMBER, 2019. YAMINI 5 !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. 4. 5 6. CIT(A)-II, THANE. PR. CIT-II, THANE. '#$!% %&',)! !&' , / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // // // TRUE COPY // / 01%2&3 / SR. PRIVATE SECRETARY )! !&' , / ITAT, PUNE.