Sanjib Kumar Ghosh, Kolkata V. ITO, Ward-30(3), Kolkata, Kolkata

ITA 1098/KOL/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7921 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2014
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 24-07-2012
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: K M ROY
• Keywords: Opportunity of being heard; Non compliance
• Section: 142(1); 144

Judgement Text

, B , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA () BEFORE , /AND , ! ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI SHAMIM YAHYA, AM] ' / I.T.A NOS.1098 & 1099/KOL/2012 #$ %&/ ASSESSMENT YEAR: 2008-09 SANJIB KUMAR GHOSH VS. INCOME-TAX OFFICER, WD- 30(3), KOLKATA. (PAN: ADTPG4712F) (() /APPELLANT ) (*+()/ RESPONDENT ) DATE OF HEARING: 03.09.2014 DATE OF PRONOUNCEMENT: 14.10.2014 FOR THE ASSESSEE: SHRI K. M. ROY, FCA FOR THE REVENUE : SHRI RAVI JAIN, CIT / ORDER PER SHRI MAHAVIR SINGH, JM : APPEAL I.E. ITA NO. 1098/K/2012 BY ASSESSEE IS ARIS ING OUT OF ORDER OF CIT(A)-XIV, KOLKATA IN APPEAL NO. 414/CIT(A)-XIV/10-11 DATED 22 .06.2012 AND APPEAL I.E. ITA NO. 1099/K/2012 BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XIV, KOLKATA IN APPEAL NO. 415/CIT(A)/XIV/10-11 DATED 26.06.2012. ASSESSMENT W AS FRAMED BY ITO, WD-30(3), KOLKATA U/S. 144 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER R EFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2008-09 VIDE HIS ORDER DATED 13.12.2010 AND P ENALTY. PENALTY WAS ALSO IMPOSED BY ITO, WARD-30(3), KOLKATA U/S. 271(1)(B) OF THE ACT VIDE HIS ORDER DATED 13.12.2010. 2. FIRST WE TAKE UP ITA NO. 1099/K/2012. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) SUSTAINING THE ADDITION MADE BY AO BY ESTIMATING THE TOTAL TURNOVER AT RS.98,26,813/- AS AGAINST THE DECLARED TURNOVER OF THE ASSESSEE AT RS.64,31,270/-. FOR THIS, ASSESSEE HAS RAISED FOLLOWING TWO GROUNDS : 1. THAT THE APPELLATE AUTHORITY HAS ERRED IN LAW N SUSTAINING THE COMPUTATION OF ESTIMATED INCOME ON THE TOTAL TURNOVER OF RS.98,26, 813/= INSTEAD OF CONTRACTUAL RECEIPTS OF RS.64,31,270/ WITHOUT APPRECIATING THAT THE BALANCE OF RS. 33,95,543/ = REPRESENTS COST OF MATERIAL SUPPLIED BY THE PRINCP AL CONTRACTORS AS PER TERMS OF CONTRACT. 2. THAT THE APPELLATE AUTHORITY HAS FAILED TO APPRE CIATE THAT THERE IS NO ELEMENT OF PROFT IN THE VALUE OF MATERIAL SUPPLIED OF RS. 33,95,543/ = AS IT IS A NOTIONAL ITEM OF TURNOVER 2 ITA NOS. 1098 & 1099/K/2012 SANJIB KUMAR GHOSH AY 2008-09 MATCHED BY EQUIVALENT PURCHASE IN TERMS OF ACCOUNTI NG NORMS IN CONSTRUCTION INDUSTRY PREVALENT BETWEEN PRINCIPAL CONTRACTORS AND SUB -CO NTRACTORS. FURTHER NO TAX HAS BEEN DEDUCTED AT SOURCE ON SUCH VALUE BY PRINCIPAL CONTR ACTORS. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT ASSESSMENT WAS COMPLETED U/S. 144 OF T HE ACT ON THE BASIS OF MATERIAL AVAILABLE BEFORE THE AO. WE FIND THAT THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNTS AND BILLS AND VOUCHERS. ACCORDING TO AO, THE ASSESSEE HAS DECLARE D THE SALES AT RS.98,26,830/- AND ACCORDING TO HIM, THIS IS THE TURNOVER OF THE ASSESSEE. THE AO APPLIED NET PROFIT RATE ON THE GROSS RECEIPT OF RS.98,26,813/- @ 8% IN THE ABSENCE OF THE BOOKS OF ACCOUNT. THE CIT(A) ALSO CONFIRMED THE ACTION OF AO BY OBSERVING IN PARA 6 AS UNDER: 6. GROUND NO. 3 OF THE APPEAL IS DIRECTED AGAINST THE ASSESSING OFFICERS ACTION IN ADOPTING THE TURNOVER OF RS.98,26,813/- AS AGAINST THE ALLEG ED TOTAL CONTRACTUAL RECEIPT OF RS.64,31,270/-. IN THIS REGARD THE LD. A/R OF THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE TO SHOW THAT THE GROSS TURNOVER IS LESS THAN RS.98,26,813/-. THEREFORE, I HOLD THAT THE A.O. HAS CORRECTLY ADOPTED THE GROSS RECEIPT OF RS.98,26,813/-. GROUND NO. 3 OF T HE APPEAL IS DEVOID OF ANY MERIT AND IT IS DISMISSED. 4. NOW THE ASSESSEE HAS CHALLENGED ONLY THE ESTIMAT ION OF TOTAL TURNOVER BEFORE US. WE FIND THAT THE ASSESSEE FAILED TO PRODUCE BOOKS OF A CCOUNT BEFORE THE AO AND ONLY RELIED ON THE DETAILS OF FORM NO. 26AS BUT DECLARED HIS TURNOVER I.E. SALES AS PER THE ACCOUNTS STATEMENT FILED ALONG WITH THE RETURN OF INCOME AT RS.98,26,830/-. AS THE ASSESSMENT IS FRAMED U/S. 144 OF THE ACT AND NOW ASSESSEE BEFORE US CONTENDED THAT HE IS READY TO PROVE THAT ASSESSEES TURNOVER IS RS.64,31,270/-AS CLAIMED BY HIM, AND NOT ASSESSED B Y THE AO AT RS.98,26,813/-. LET THE ISSUE BE EXAMINED AFRESH BY THE AO, IN CASE THE ASSESSEE IS ABLE TO PROVE BEFORE HIM THE REAL TURNOVER. THE ENTIRE ONUS LIES ON THE ASSESSEE TO PROVE THAT HIS TURNOVER IS AT RS.64,31,270/- AND NOT RS.98,26,813/-. IN TERM OF THE ABOVE, THIS ISSUE IS SET ASIDE TO THE FILE OF AO FOR FRESH ADJUDICATION AFTER ALLOWING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. NOW, WE TAKE UP ITA NO. 1098/K/2012. THE ONLY ISSU E IN THIS APPEAL OF ASSESSEE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE LEVY OF PENALTY U/S. 271(1)(B) OF THE ACT. 6. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE AO ISSUED NOTICE U/S. 142(1) OF TH E ACT DATED 07.05.2010 FIXING THE CASE ON 25.05.2010. ON SPECIFIC DATE I.E. 25.05.2010 NONE APPEARED NOR ANY EXPLANATION WAS FURNISHED AND HENCE, THE AO INITIATED PENALTY PROCEEDINGS U/S . 271(1)(B) OF THE ACT. THE AO LEVIED PENALTY FOR NON-COMPLIANCE OF NOTICE U/S. 142(1) OF THE ACT AT RS.10,000/-. AGGRIEVED, ASSESSEE 3 ITA NOS. 1098 & 1099/K/2012 SANJIB KUMAR GHOSH AY 2008-09 PREFERRED APPEAL BEFORE CIT(A), WHO CONFIRMED THE A CTION OF AO BY OBSERVING IN PARA 3 AS UNDER: 3. I HAVE CONSIDERED THE ORAL ARGUMENT OF THE REPR ESENTATIVE OF THE APPELLANT AND THE FACTS NARRATED IN THE PENALTY ORDER. I FIND THAT T HERE HAS BEEN NON COMPLIANCE ON THE PART OF THE APPELLANT INASMUCH AS THE APPELLANT DID NOT COMPLY WITH THE TERMS AND CONDITION OF THE NOTICE ISSUED U/S. 142(1). THEREA FTER, THE AO INITIATED PENALTY PROCEEDINGS U/S. 271(1)(B) OF THE I. T. ACT, 1961. HOWEVER, NO EXPLANATION WAS FILED ON BEHALF OF THE APPELLANT. ON THESE FACTS I AM OF TH E CONSIDERED VIEW THAT THE AO HAS RIGHTLY LEVIED THE PENALTY OF RS.10,00/- U/S. 271(1 )(B) OF THE I. T. ACT, 1961. ACCORDINGLY, THE PENALTY OF RS.10,000/- IS CONFIRME D. 7. BEFORE US, LD. COUNSEL FOR THE ASSESSEE FILED AF FIDAVIT OF ASSESSEE THAT ASSESSEE IS 73 YEARS OLD SUFFERING FROM SERIOUS HEART AILMENT AND OTHER HEART RELATED DISEASES. ON THAT PARTICULAR DATE I.E. ON 07.05.2010, ASSESSEE WAS NO T WELL AND COULD NOT ATTEND THE HEARING DUE TO THIS REASON ONLY. WE FIND THAT THE EXPLANATION IS REASONABLE AND HENCE, WE DELETE THE PENALTY LEVIED BY AO AND CONFIRMED BY CIT(A). THE ORDERS O F THE LOWER AUTHORITIES ARE REVERSED AND APPEAL OF ASSESSEE IS ALLOWED. 8. IN THE RESULT, ITA NO. 1098/K/2012 OF ASSESSEE I S ALLOWED AND THAT OF ITA NO. 1099/K/2012 OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 9. ORDER IS PRONOUNCED IN THE OPEN COURT ON 14.10.2 014 SD/- SD/- , ! , (SHAMIM YAHYA) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 14 TH OCTOBER, 2014 ,- #./ 0 JD.(SR.P.S.) 1 *2 3 2%4- COPY OF THE ORDER FORWARDED TO: 1 . () / APPELLANT SHRI SANJIB KUMAR GHOSH, 11/B, OLD BALL YGUNGE 2 ND LANE, GARIAHAT, KOLKATA-700 019. 2 *+() / RESPONDENT ITO, WARD-30(3), KOLKATA. 3 . # ( )/ THE CIT(A), KOLKATA 4. 5. # / CIT KOLKATA 2:; *# / DR, KOLKATA BENCHES, KOLKATA +2 */ TRUE COPY, #