DCIT, Kota V. M/S SHUBHAM COLONIZERS, BARAN

ITA 1143/JPR/2011

• Counselvise Citation: 114323114 RSA 2011
• Duration Of Justice: 2 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2014
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 30-12-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D C SHARMA
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

ITA NO. 1143/JP/2011 DCI T, CIRCLE- 2, KOTA VS. M/S. SHUBHAM COLONIZERS, BA RAN 1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH, JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. ME ENA) ITA NO. 1143/JP/2011 ASSESSMENT YEAR: 2008-09 PAN : ABHFS 8136 P THE DCIT VS. M/S. SHUBHAM COLONIZERS CIRCLE- 2 KOTA ROAD, KOTA BARAN (APPELLANT) (RESPONDENT) DEPARTMENT BY: SHRI D.C. SHARMA ASSESSEE BY : NONE DATE OF HEARING: 03-09-2014 DATE OF PRONOUNCEMENT: 31-10-2014 ORDER PER R.P. TOLANI, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A), KOTA DATED 28-10-2011 WHEREIN THE REVENUE HAS RAISED FOLLOWING GROUNDS IN ITS APPEAL. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A), KOTA HAS ERRED IN:- (I) INCLUDING THE SALE OF AGRICULTURAL LAND (RS. 1,95,18,072) IN THE BUSINESS TURNOVER OF THE ASSES SEE AND ESTIMATING NET PROFIT ON IT @ 58.21% THEREBY ALLOWI NG DEVELOPMENT EXPENSES WITHOUT COMPUTING IT ON THE BA SIS OF THE ITA NO. 1143/JP/2011 DCI T, CIRCLE- 2, KOTA VS. M/S. SHUBHAM COLONIZERS, BA RAN 2 EVIDENCE AVAILABLE ON RECORD IN ANNEXURE S-5 & S-7 EVEN AFTER REFERRING TO THEM IN THE APPELLATE ORDER. (II) INCLUDING THE SALE PROCEEDS OF PLOTS (RS.10,94 ,800) IN THE BUSINESS TURNOVER OF THE ASSESSEE AND ESTIM ATING THE PROFIT ON IT @ 58.21% THEREBY ALLOWING DEVELOPMENT EXPENSES WITHOUT REFERRING TO ANY EVIDENCE WHATSOEVER IN THE MATERIAL IMPOUNDED DURING THE COURSE OF SURVEY OR PRODUCED L ATER ON BY THE ASSESSEE. (III) ESTIMATING PROFIT ON SALE OF PLOT AT RAJIV GA NDHI NAGAR, KOTA AT RS. 9,80,000/- AS AGAINST RS. 34,80, 000/- COMPUTED BY THE AO BY REFERRING TO A LOOSE PAPER IN WHICH SALE CONSIDERATION OF THIS PLOT WAS MENTIONED AS RS. 64. 94 LACS, WITHOUT LOCATING THAT PAPER IN THE IMPOUNDED MATERI AL AND JUST ACCEPTING THE STATEMENT OF AO THAT IT IS NOW NOT AV AILABLE ON RECORD. 2.1 NONE APPEARED ON BEHALF OF THE ASSESSEE IN SPIT E OF SEVERAL EARLIER NOTICES AND THE SERVICE OF NOTICE OF THIS HEARING. CONSEQUENTLY WE ARE LEFT WITH NO ALTERNATIVE BUT TO DECIDE THE APPEAL ON MER ITS, EX PARTE QUA THE ASSESSE, AFTER HEARING LD. DR AND AFTER PERUSAL OF THE MATERIALS AVAILABLE ON RECORD. 3.1 BRIEF FACTS OF THE CASE ARE THAT THE AO FOUND T HAT THE ASSESSEE HAS FILED TWO DIFFERENT ORIGINAL RETURNS FOR THE SAME ASSESSM ENT YEAR. AS PER LAW, THE ASSESSEE CAN FILE ONLY ONE ORIGINAL RETURN. THE ASS ESSEE REPLIED THAT A SURVEY WAS UNDERTAKEN AT ASSESSEE'S BUSINESS PREMISES ON 1 8-10-2007 AND THE ASSESSEE FIRM OFFERED AN AMOUNT OF RS. 1.40 CRORES IN TWO ASSESSMENT YEARS ITA NO. 1143/JP/2011 DCI T, CIRCLE- 2, KOTA VS. M/S. SHUBHAM COLONIZERS, BA RAN 3 AND THERE WAS A CHANGE IN THE PARTNERS AS UPTO 18-1 0-2007 TWO RETURNS WERE FILED. THE AO HOWEVER, TREATED THE FIRM AS AOP AS I T WAS NOT MAINTAINING ANY BOOKS OF ACCOUNT AND THE TURNOVER EXCEEDED RS. 40.00 LACS. BY DETAILED ORDER THE AO ASSESSED THE INCOME OF THE ASSESSEE AT RS. 2,11,35,200/-. 3.2 AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL WHERE THE LD. CIT(A) DELETED ALL THE ADDITIONS. 3.3 THE LD. DR CONTENDS THAT THE LD. CIT(A) HAS NOT TAKEN INTO CONSIDERATION THE PLEA OF THE AO WITHOUT VERIFYING THE RECORD AND ENTERTAINED NEW EVIDENCES. NEITHER ANY REMAND REPOR T WAS CALLED FOR FROM THE AO NOR AN OPPORTUNITY OF BEING HEARD WAS AFFOR DED. THUS THERE IS A CLEAR VIOLATION OF PRINCIPLES OF NATURAL JUSTICE QU A THE DEPARTMENT. THE LD. CIT(A) WITHOUT ASSIGNING ANY REASON HAS ESTIMATED T HE NET PROFIT RATE AT 58.21% AND ALLOWED HUGE DEVELOPMENT EXPENSE WITHOU T APPRECIATING THE PLETHORA OF EVIDENCES AVAILABLE ON RECORD. THUS THE EVIDENCES AVAILABLE ON RECORD IN THE FORM OF DOCUMENTS IMPOUNDED DURING TH E COURSE OF SURVEY HAVE NOT BEEN CONSIDERED AT ALL. IT IS PLEADED THAT IN THE INTEREST OF JUSTICE THE MATTER MAY BE SET ASIDE BACK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER CALLING FOR THE REMAND REPORT FROM THE AO. 3.4 WE HAVE HEARD THE LD. DR AND PERUSED THE MATER IALS AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENTS OF THE LD. D R . THE AO HAS REFERRED ITA NO. 1143/JP/2011 DCI T, CIRCLE- 2, KOTA VS. M/S. SHUBHAM COLONIZERS, BA RAN 4 TO PLETHORA OF IMPOUNDED DOCUMENTS FOUND DURING THE COURSE OF SURVEY WHICH HAVE BEEN RELIED ON BY THE AO FOR MAKING ADDI TION BY DETAILED ORDER. THE LD. CIT(A) HAS FAILED TO TAKE COGNIZANCE OF SUC H IMPOUNDED MATERIALS THUS LOOKING AT THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) SHOULD HAVE CALLED FOR THE REMAND REPORT FROM THE A O. HENCE, IN VIEW THEREOF, WE ARE INCLINED TO SET ASIDE THE APPEAL BA CK TO THE FILE OF THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER PROVIDING RE ASONABLE OPPORTUNITY OF BEING HEARD TO BOTH THE PARTIES. 4.0 IN THE RESULT, THE APPEAL OF THE REVENUE IS ALL OWED FOR STATISTICAL PURPOSES . THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 31-1 0-2014 SD/- SD/- (T.R. MEENA) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR DATED: 31 ST OCT. 2014 *MISHRA COPY FORWARDED TO:- 1.THE DCIT, CIRCLE- 2, KOTA 2. M/S. SHUBHAM COLONIZERS, KOTA ROAD, BARAN 3. THE LD. CIT(A) 4. THE LD. CIT BY ORDER 5..THE LD. DR 6.THE GUARD FILE (IT NO. 1143/JP/2011) AR ITAT, JAIPUR