M/s. S. Con, Kolkata V. ITO, Ward - 29(4), Kolkata, Kolkata

ITA 1153/KOL/2010

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78289 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 10-06-2010
• Court: TRIBUNAL
• Department Lawyers: VIKASH KUMAR AGARWAL
• Assessee Lawyers: BARUN BARAN MITRA
• Section: 44AD

Judgement Text

, A , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND . . . . ' '' ''# '#'# '#, $% ) [BEFORE SHRI MAHAVIR SINGH, JM & SHRI ABRAHAM P. GEORGE, AM] & & & & / I.T.A NO. 1153/KOL/2010 '( )* '( )* '( )* '( )*/ // / ASSESSMENT YEAR: 2002-03 M/S. S. CON. VS. INCOME-TAX OFFICER, WD-29(4), KOLKATA. (PAN:ABGFS0414B) (,- /APPELLANT ) (./,-/ RESPONDENT ) DATE OF HEARING: 11.04.2014 DATE OF PRONOUNCEMENT: 11.04.2014 FOR THE APPELLANT: SHRI BARUN BARAN MITRA, FCA FOR THE RESPONDENT: SHRI VIKASH KUMAR AGARWAL, J CIT, SR. DR $0 / ORDER PER SHRI MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A)-XVI, KOLKATA IN APPEAL NO. 104/CIT(A)-XVI/IT/29(4)/07-08 DATED 13.01.2010. AS SESSMENT WAS FRAMED BY ITO, WARD- 29(4), KOLKATA U/S. 147/143(3) OF THE INCOME-TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEARS 2002-03 VIDE HIS ORDER DATED 31.08.2007. 2. AT THE OUTSET, IT IS TO BE MENTIONED THAT THE TR IBUNAL HAS RECALLED ITS ORDER DATED 04.04.2012 IN ITA NO. 1153/K/2010 PERTAINING TO AY 2002-03 FOR DISPOSAL OF ADDITIONAL GROUND RAISED IN MA NO.76/K/2012 ORDER DATED 31.07. 2012. THE RELEVANT ADDITIONAL GROUND READS AS UNDER: 1. FOR THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAD ERRED IN NOT CONSIDERING THE PROVISION OF SECTION 44AD OF THE IN COME TAX ACT 1961 FOR ASSESSING THE INCOME OF THE APPELLANTS BUSINESS OF CIVIL CONSTRU CTIONFIRM WHEN THE GROSS RECEIPT OF THE APPELLANT WAS LESS THAN THE LIMIT PRESCRIBED U/ S. 44AD. 3. LD. COUNSEL FOR THE ASSESSEE BEFORE US FILED COM PLETE STATEMENT OF ACCOUNTS AND ALSO STATED THAT IT IS PAYING SALARY AND INTEREST TO PAR TNERS. LD. COUNSEL FOR THE ASSESSEE STATED THAT HE HAS NO OBJECTION IF ASSESSMENT IS FRAMED BY INVOKIN G THE PROVISION OF SECTION 44AD OF THE ACT AS THE ASSESSEES TURNOVER IS LESS THAN RS. 40 LACS . THE ASSESSEE IS A CIVIL CONTRACTOR. ON THE 2 ITA NO. 1153/K/2010 M/S. S. CON AY:2002-03 OTHER HAND, THE LD. SR. DR STATED THAT LET THE ISSU E BE EXAMINED BY THE AO AFRESH IN TERM OF THE PATNERSHIP DEED SO THAT SALARY AND INTEREST CAN BE QUANTIFIED I.E. HOW MUCH IS TO BE ALLOWED. LD. SR. DR ALSO STATED THAT A DIRECTION MAY BE GIVE N TO AO TO COMPUTE THE INCOME AFTER APPLYING THE PROVISIONS OF SECTION 44AD OF THE ACT AND CONSEQUENTLY ALLOWANCES CAN BE ALLOWED AS PER LAW. 4. WE HAVE HEARED RIVAL CONTENTIONS AND GONE THROUG H FACTS AND CIRCUMSTANCES OF THE CASE. ADMITTEDLY, ASSESSEE IS A CIVIL CONTRACTOR. AS SEE N FROM THE RECORDS, THE ASSESSEES TURNOVER IS LESS THAN RS.40 LACS. IT MEANS THAT THE ASSESSMENT OF ASSESSEES INCOME IS TO BE ASSESSED BY APPLYING THE PROVISIONS OF SECTION 44AD OF THE ACT. THE AO WILL ALSO ALLOW CONSEQUENTIAL DEDUCTIONS ON ACCOUNT OF SALARY AND INTEREST PAID B Y THE PARTNERSHIP FIRM TO THE PARNTERS IN TERMS OF PARTNERSHIP DEED. IN TERM OF THE ABOVE, T HE AO IS DIRECTED TO RECOMPUTE THE INCOME AFTER TAKING EVIDENCE. ACCORDINGLY, APPEAL OF ASSE SSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . ' '' ''# '#'# '# , $% , (ABRAHAM P. GEORGE) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 11 TH APRIL, 2014 12 '3' 4 JD.(SR.P.S.) $0 5 . 6$ )7- COPY OF THE ORDER FORWARDED TO: 1 . ,- / APPELLANT- M/S. S. CON., 111B. RAKHALDAS AUDDY ROA D, KOLKATA-700 027. 2 ./,- / RESPONDENT ITO, WARD-29(4), KOLKATA. 3 . 0' ( )/ THE CIT(A), KOLKATA 4. 5. 0' / CIT KOLKATA <= .' / DR, KOLKATA BENCHES, KOLKATA / ./ TRUE COPY, $0'>/ BY ORDER, ' /ASSTT. REGISTRAR .