ITO, BASTAR(CG) V. SHRI MOHAR JHA, BASTAR(CG)

ITA 103/BIL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1390 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 9 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 02-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Presumptive income
• Section: 43B; 143(3); 148; 6; 28; 2

Judgement Text

ITA NO S . 103 & 104 / RPR /201 3 AS SESSMEN T Y EAR: 20 0 7 - 08 & 2008 - 09 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, SMC , RAIPUR [CORAM : PRAMOD KUMAR AM ] ITA NO S . 103 & 104 / RPR /201 3 AS SESSMENT Y EAR S : 20 0 7 - 08 & 2008 - 0 9 INCOME TAX OFFICER BASTAR [C.G] .APPELLANT VS. MOHAR JHA ... . RESPONDENT GANGA NAGAR WARD JAGDALPUR DIST BASTAR (C.G.) . [ PAN : A CIPJ 4580 C ] APPEARANCES BY: D.K. JAIN , FOR THE A PPELLANT S.R. RAO , F OR THE RE SPONDENT DATE OF CONCLUDING THE HEARING : JUNE 2 1 ST , 201 6 DATE OF PRONOUNCING THE ORDER : JUNE 21 ST , 201 6 O R D E R 1. THESE TWO APPEALS, PERTAIN TO THE SAME ASSESSEE, INVOLVE COMMON ISSUE AND ARE DIRECTED AGAINST CONSOLIDATED ORDER DATED 06.06.2013, PASSED BY THE LEARNED CIT(A), IN THE MATTER OF ASSESSMENT UNDER SEC TION 148 READ WITH SECTION 143(3) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) FOR THE ASSESSMENT YEARS 2007 - 08 & 2008 - 09 , ON THE FOLLOWING GROUND S : - AY. 2007 - 08 1. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERR ED IN DIRECTING THE AO TO COMPUTE INCOME FROM TRUCK PLYING U/S 44AE OF THE I.T. ACT 1961 WHEREAS THE ASSESSEE HAS FILED ITS RETURN OF INCOME SHOWING INCOME FROM TRUCK PLYING U/S 28 TO 43B OF THE I.T. ACT, 1961. . 2. WHETHER IN LAW AND ON FACTS AND CIRCUMST ANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION TO RS. 10,54,888 MADE OUT OF ITA NO S . 103 & 104 / RPR /201 3 AS SESSMEN T Y EAR: 20 0 7 - 08 & 2008 - 09 PAGE 2 OF 4 DIFFERENCE OF INCOME SHOWN IN ITR AND AMOUNT CAPITALISED IN THE CAPITAL ACCOUNT ENCLOSED W I TH THE ITR. 3. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 23,70,089/ - MADE BY THE AO ON ACCOUNT OF UNEXPLAINED CASH IN HAND AND AT BANK . . AY. 2008 - 09 1. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF THE CASE, T HE LD. CIT(A) HAS ERRED IN DIREC TING THE AO TO COMPUTE INCOME FROM TRUCK PLYING U/S 44AE OF THE I.T. ACT 1961 WHEREAS THE ASSESSEE HAS FILED ITS RETURN OF INCOME SHOWING INCOME FROM TRUCK PLYING U/S 28 TO 43B OF THE I.T. ACT, 1961.. 2. WHETHER IN LAW AND ON FACTS AND CIRCUMSTANCES OF TH E CASE, T HE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION TO RS. 13,21,896/ - MADE OUT OF DIFFERENCE OF INCOME SHOWN IN ITR AND AMOUNT CAPITALISED IN THE CAPITAL ACCOUNT ENCLOSED WITH THE ITR. 2. TO ADJUDICATE ON THESE TWO APPEALS ONLY A FEW MATERIAL FACT S NEED TO BE TAKEN NOTE OF. THERE IS NO DISPUTE THAT THE ASSESSEE IS A COMMERCIAL TRANSPORT OPERATOR AND IS ENTITLED TO PRESUMPTIVE TAXATION UNDER SECTION 4 4 AE OF THE ACT. HOWEVER, WHILE FILING I NCOME T AX RETURN , DUE TO APPARENT SOFTWARE ERROR , OPTION OF ASSESSMENT UNDER SECTION 44AE WAS NOT SHOWN TO HAVE BEEN EXERCISED BY THE ASSESSEE. ACCORDINGLY , THE ASSESSING OFFICER COMPUTED THE INCOME IN DISREGARD OF SECTION 44AE ON THE GROUND THAT THE OPTION HAS NOT BEEN EXERCISED IN THE RETURN FILED ELECTRONICALL Y. AGGRIEVED , ASSESSEE CARRIED THE MATTER IN APPEAL AND SUBMITTED THAT NON - EXERCISE OF OPTION IS ONLY A TECHNICAL ERROR AND THAT HIS INCOME SHOULD BE COMPUTED ON THE BASIS OF THE PROVISIONS OF SECTION 44AE OF THE ACT. LEARNED CIT(A) ACCEPTED THE PLEA OF THE ASSESSEE AND DIRECTED THE ASSESSING OFFICER TO COMPUTE THE INCOME UNDER SECTION 44AE OF THE ACT. WHILE HOLDING SO HE OBSERVED AS FOLLOWS : - 2. BRIEF FACTS OF THE CASE: THE APPELLANT DERIVES INCOME FROM TRUCK PLYING BUSINESS. THE RETURN OF INCOME FOR THE ABOVE ASSESSMENT YEARS WERE INITIALLY FILED ON 31.03.2008 AND ON 31. 0 3.2009 RESPECTIVELY ALONG WITH COMPUTATION OF INCOME, CAPITAL A/C ITA NO S . 103 & 104 / RPR /201 3 AS SESSMEN T Y EAR: 20 0 7 - 08 & 2008 - 09 PAGE 3 OF 4 AND BALANCE SHEET. THE TOTAL INCOME DECLARED RESPECTIVELY AT RS.1,64,023/ - (A.YR. 2007 - 08) , RS. 1,55,210/ - (A .YR. 2008 - 09) WAS ACCEPTED AFTER PROCESSING THE RETURNS U/S. 143(1) OF THE ACT. LATER ON NOTICES U/S 148 OF THE ACT WERE ISSUED ON 23 - 03 - 2012. THE APPELLANT HAS REQUESTED THAT THE RETURNS FILED EARLIER MAY BE TREATED AS FILED IN RESPONSE TO THE SAID NOTICES. IN THE REGULAR ASSESSMENT COMPLETED SUBSEQUENTLY, THE TOTAL INCOME WAS ASSESSED AT RS.35,89,000/ - FOR A. YR. 2007 - 08 AND RS.14,77,106/ - FOR A.YR. 2008 - 09. THE ADDITIONS MADE TO THE RETURNED INCOME ARE BASED ON THE CAPITAL ACCOUNT AND BALANCE SHEET FILED WITH THE RETURN. IN THE COURSE OF APPEAL PROCEEDINGS, SHRI SANJAY JAIN, FCA AND AR, APPEARED ON BEHALF OF THE APPELLANT AND EXPLAINED THE CASE WITH REFERENCE TO WRITTEN SUBMISSIONS FILED. THE OBSERVATIONS OF THE A.O., SUBMISSIONS OF THE APPELLANT AND THE GROUNDS RAISED BY THE APPELLANT ARE ADJUDICATED IN THE LINES INDICATED BELOW. 3. GROUND NO.1 - 8 ALL THESE GROUNDS OF APPEAL, FACTS OF THE CASE, OBSERVATIONS OF ASSESSING OFFICER AND SUBMISSIONS OF THE APPELLANT, EXCEPT FOR FIGURES , ARE SAME AS THA T WERE DISCUSSED APPEAL ORDER IN APPEAL NO.100/12 - 13 DATED 06.06.2013 PASSED IN THE CASE OF SHRI BALJINDER SINGH, JAGDALPUR. IN THAT CASE , THE GROUND RELATING TO COMPUTATION OF TOTAL INCOME WAS PARTLY ALLOWED WITH DIRECTIONS TO THE ASSESSING OFFICER TO WO RK OUT THE INCOME FROM PLYING OF GOODS CARRIAGES AS PER PROVISIONS OF SECTION 44AE AFTER SATISFYING HIMSELF WITH THE NUMBER OF TRUCKS PLIED/HIRED, LEASED AT ANY TIME DURING PREVIOUS YEAR AS PER FORMULA PRESCRIBED IN THE SAID SECTION AND IF THE INCOME SHOWN BY THE APPELLANT IS MORE THAN THE INCOME DERIVED AS PER THE FORMULA, TO ACCEPT THE INCOME AS PER RETURN. THE FACTS AND CIRCUMSTANCES OF THIS CASE BEING SAME, THE ASSESSING OFFICER IS DIRECTED TO COMPUTE THE TOTAL INCOME IN THE LINES STATED ABOVE. ACCORD INGLY THE GROUND OF APPEAL RELATING TO COMPUTATION OF INCOME IS PARTLY ALLOWED AND ALL OTHER GROUNDS OF APPEALS ARE DISMISSED FOR THE REA SONS ELABORATELY DISCUSSED IN T H E APPEAL ORDER REFERRED ABOVE. 3. ASSESSING OFF ICER I S AGGRIEVED AND IS IN APPEAL BEF ORE ME. 4. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF APPLICABLE LEGAL POSITION . I HAVE NOTICED THAT THE ONLY PLEA OF THE LEARNED DEPARTMENTAL REPRESENTATIVE IS THAT THE METHOD OF COMPUTATION OF INCOME CANNOT BE CHANGED OR VARIED BY THE LEARNED CIT(A) BUT THEN THE L EARNED CIT(A) OVERLOOKS THAT THE ASSESSEE WAS INDEED AND UNDISPUTEDLY ENTITLED TO APPLICATION OF SECTION 44AE AND IT WAS APPARENTLY AN INADVERTENT ERROR IN ELECTRONIC FILING OF THE RETURNS THAT THE OPTION WAS NOTED AS NOT HAVING BEEN EXERCISED. I HAVE ITA NO S . 103 & 104 / RPR /201 3 AS SESSMEN T Y EAR: 20 0 7 - 08 & 2008 - 09 PAGE 4 OF 4 ALSO NOTED THAT AS HELD BY THE DIVISION BENCH OF THIS TRIBUNAL IN THE CASE OF KES HAVBHAI KAMALBHAI CHANDANI VS . ITO , 149 TTJ 94, IF INCOME FROM TRUCK PLYING IS REQUIRED TO BE ESTIMATED , IT SHOULD BE ESTIMATED ON THE BASIS OF SECTION 44AE AND NOT OTHERWISE. WHEN LAW HAS P RESCRIBED A FORMULA FOR ESTIMATING INCOME AND ASSESSEE IS NOT COVERED BY ANY OF THE EXCEPTIONS SET OUT IN THE FORMULA , THERE IS NO REASON FOR NOT ESTIMAT ING THE INCOME ON THE BASIS OF S UCH A FORMULA . T HE HYPER TECHNICAL ARGUMENT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE DOES NOT IN MY CONSIDERED VIEW MERITS ACCEPTANCE. I AM , THEREFORE , OF THE CONSIDERED OPINION THAT THE L EARNED CIT(A) WAS QUITE JUSTIFIE D IN DIRECTING THE ASSESSING OFFICER TO RE COMPUTE THE INCOME ON THE BASIS OF PROVISIONS OF SECTION 44AE OF THE ACT . I UPHOLD HIS ACTION AND DECLINE TO INTERFERE IN THE MATTER. 5. IN THE RESULT, THE APPEAL S ARE DISMISSED . PRONOUNCED IN THE OPEN COURT ON T HIS 21 ST DAY OF JUNE , 2016. SD/ - PRAMOD KUMAR (ACCOUNTANT MEMBER) DATED: THE 21 ST DAY OF JUNE, 2016 . PBN/* COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH, RAIPUR