M/s Maa Chinnamasta Traders, Burdwan V. I.T.O Wd - 2(2),Asansol, Asansol

ITA 1070/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9471 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 9 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 31-10-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 06-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: T VARKEY JUDIC IA L M EMBER

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A KOLKATA BEFORE SHRI ABY.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1070 / KOL / 2013 ASSESSMENT YEAR :2009-10 M/S MAA CHINNAMASTA TRADERS, RADHA NAGR ROAD, ARGHY COMPLEX, P.O. BURNPUR, DIST. BRDWAN, PIN-713 325 [ PAN NO.AANFM 8539 K ] V/S . INCOME TAX OFFICER, WARD-2(2), ASANSOL, G.T. ROAD, WEST, ASANSOL-713 304 /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI R.N. RAM, AR /BY RESPONDENT NONE /DATE OF HEARING 28-12-2016 /DATE OF PRONOUNCEMENT 08-02-2017 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-ASANSOL DATED 07.03.2013. ASSESSMENT WAS FRAMED BY ITO WARD-2(2), ASANSOL U/S 144/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS T HE ACT) VIDE HIS ORDER DATED 19.12.2011 FOR ASSESSMENT YEAR 2009-10. 2. AT THE OUTSET IT WAS NOTICED THAT THE REVENUE HA S NEITHER APPEARED BEFORE US NOR MOVED ANY ADJOURNMENT PETITION. IN SU CH SITUATION, WE DECIDED ITA NO.1070/KOL/2013 A.Y. 2009-10 M/S MAA CHINNAMASTA TRADERS VS. ITO WD-2(2) ASL . PAGE 2 TO PROCEED TO ADJUDICATE THE MATTER AFTER HEARING S HRI R.N.RAM, LD. AUTHORIZED REPRESENTATIVE APPEARED ON BEHALF OF ASS ESSEE. 3. FACTS IN BRIEF ARE THAT ASSESSEE IN THE PRESENT CASE IS A PARTNERSHIP FIRM AND ENGAGED IN BUSINESS OF CONTRACTOR. THE ASSESSME NT FOR THE YEAR UNDER CONSIDERATION WAS FRAMED 144 OF THE ACT AS ASSESSEE FAILED TO PRODUCE NECESSARY DOCUMENTS ALONG WITH BOOKS OF ACCOUNT BEF ORE ASSESSING OFFICER. THE ASSESSEE BEFORE AO SUBMITTED THAT ONE PARTNER O F THE ASSESSEE-COMPANY WAS ABSCONDING FOR THE LAST SEVERAL MONTHS WITH THE BOOKS OF ACCOUNT, THEREFORE, THE SAME CANNOT BE SUBMITTED. THE AO IN THE ABSENCE OF BOOKS OF ACCOUNT HAS MADE THE ASSESSMENT U/S 144 OF THE ACT TO THE BEST OF HIS KNOWLEDGE AFTER MAKING CERTAIN ADDITIONS / DISALLOW ANCES TO THE TOTAL INCOME OF ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHO ESTIMATED THE INCOME OF ASSESSEE @ 12.5% OF THE GRO SS CONTRACT RECEIPTS. AGGRIEVED BY THIS, ASSESSEE HAS COME IN APPEAL BEFO RE US. 5. AT THE OUTSET, LD. AR BROUGHT TO OUR NOTICE THAT THE REVENUE HAS ALSO FILED THE APPEAL (IN ITA NO.1484/KOL/2013) AGAINST THE ORDER OF LD. CIT(A) WHICH HAS BEEN RESTORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION. THE ISSUE IN THE PRESENT APPEAL IS ALSO DIRECTLY CONNEC TED WITH THE REVENUES APPEAL AND THEREFORE IT SHOULD BE RESTORED BACK TO THE FILE OF AO FOR FRESH ADJUDICATION. 6. WE HAVE HEARD LD. AR FOR THE ASSESSEE AND PERUSE D AND CAREFULLY CONSIDERED THE MATERIALS ON RECORD. AT THE OUTSET, WE FIND THAT THE REVENUES APPEAL (SUPRA) HAS BEEN RESTORED BACK TO THE FILE O F AO BY THE CO-ORDINATE BENCH FOR FRESH ADJUDICATION AS PER LAW. THE OPERAT IVE PORTION OF TRIBUNALS ORDER REPRODUCED BELOW:- 6. HAVING HEARD THE RIVAL SUBMISSION, WE ARE OF TH E VIEW THAT THERE IS MERIT IN THE SUBMISSIONS OF THE LD. DR FOR THE REVE NUE, AS THE PROPOSITION CANVASSED BY HIM ARE SUPPORTED BY THE F ACTS CITED ABOVE. AS HE HAS EXPLAINED THAT ONE OF THE PARTNERS OF THE FIRM HAS ABSCONDED WITH BOOKS OF ACCOUNT BUT THESE HAD NOT FILED ANY F IR WITH THE POLICE DEPARTMENT THEREFORE THEIR STATS CANNOT BE RELIED. THERE IS NO POINT TO ITA NO.1070/KOL/2013 A.Y. 2009-10 M/S MAA CHINNAMASTA TRADERS VS. ITO WD-2(2) ASL . PAGE 3 REVEAL THAT THE PARTNER AS ABSCONDED. THE CIT(A) DI D NOT ASK THE ASSESSEE FIRM TO PRODUCE BEFORE HIM THE FIR AND OTH ER DOCUMENTS WHICH CAN SHOW THAT ONE OF THE PARTNERS HAS BEEN AB SCONDED WITH BOOKS OF ACCOUNT AND TILL DATE THE PARTNER IS NOT T RACEABLE. THE ASSESSEE UNDER CONSIDERATION COMES UNDER THE TAX AUDIT AMBIT AND TAX AUDIT REPORT U/S. 44A HAS BEEN CERTIFIED BY THE CHARTERED ACCOUNTANT THEREFORE ASSESSMENT CANNOT BE DONE BASED ON ESTIMA TE. IF THE BOOKS OF ACCOUNT ARE ABSCONDED BY ONE OF THE PARTNERS BUT THEN COPY OF THE TAX AUDIT REPORT MUST BE AVAILABLE WITH THE CHARTER ED ACCOUNTANT OF THE ASSESSEE. THE SAID PARTNER CANNOT STEAL THE TAX AUD IT REPORT FORM CA OFFICE AND THE ASSESSEE MUST PRODUCE THE TAX AUDIT REPORT BEFORE AO ALONG WITH OTHER DOCUMENTS. BESIDES, THE LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFORE US TWO CASE LAWS WHICH ARE NOT APP LICABLE TO THE FACTS UNDER CONSIDERATION BECAUSE THE OTHER PARTNERS HAVE FAILED TO PROVE THE FACT THAT ONE OF THE PARTNERS HAS ABSCONDED WITH TH E BOOKS OF ACCOUNT AND THEY HAD NOT FILED THE FIR WITH THE POLICE AUTH ORITIES. THEREFORE IT NOT ACCEPTABLE. THEREFORE THESE TWO CASE LAWS CITED BEFORE US ARE NOT APPLICABLE TO THE FACTS UNDER CONSIDERATION. ACCORD INGLY, WE RE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE AO. WE ALSO DIRECT THE ASSESSEE TO PRODUCE THE BOOKS OF AC COUNT AND GET THE ASSESSMENT DONE. THEREFORE, WE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE ISSUE TO THE FILE OF AO WITH THE DIRECT ION TO ASCERTAIN THE NET INCOME OF THE ASSESSEE S PER THE DISCUSSION SUPRA. AS THE ISSUE INVOLVED IN THE PRESENT CASE ALSO HAS BEARING IN THE REVENUES APPEAL WHICH HAS BEEN ALREADY BEEN RESTORED TO THE FILE OF AO, THEREFORE, WE ARE INCLINED TO RESTORE THE SAME TO THE FILE OF AO FOR FRESH ADJUDICATION AS PER LAW. IN TERMS OF ABOVE, THIS GROUND OF ASSESSEES A PPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 7. IN THE RESULT, APPEAL FILED BY ASSESSEE STANDS ALLO WED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT 08/ 02/2017 SD/- SD/- ( !') ( !') (ABY.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 08 / 02 /201 7 ITA NO.1070/KOL/2013 A.Y. 2009-10 M/S MAA CHINNAMASTA TRADERS VS. ITO WD-2(2) ASL . PAGE 4 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-M/S MAA CHINNAMASTA TRADERS, RADHA NAGAR ROAD, ARGHY COMPLEX, P.O. B URNPUR, DIST. BURDWAN-713 325 2. /RESPONDENT-ITO WARD-2(2), G.T. ROAD, WEST, ASANSOL -713325 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,