The ITO, Ward-6(4), Ahmedabad V. Shree Gopal Petroleum, Ahmedabad

ITA 1225/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 9000 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-02-2010
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-02-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 22-03-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C PANDIT
• Assessee Lawyers: N O N E
• Keywords: Gross profit estimation; Additional evidence; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA, J.M. & HONBLE SH RI D.C. AGRAWAL, A.M.) I.T.A. NO. 1225/AHD./2007 ASSESSMENT YEAR : 2002-2003 INCOME TAX OFFICER, WARD-6(4) AHMEDABAD -VS.- SHR EE GOPAL PETROLEUM, AHMEDABAD (PAN : AAQFS 5749 E) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M.C. PANDIT, SR. D.R. RESPONDENT BY : N O N E O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 18.12.2006 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-XII, AHMEDABAD FOR THE ASSESSMENT YEAR 2002-03. 2. VARIOUS GROUNDS RAISED BY THE REVENUE IN ITS APP EAL ARE AS UNDER :- 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- XII, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.50,000/- ON ACCOUNT OF LOW GROSS PROFIT. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)- XII, AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE OF RS.10,50,000/- BEING THE UNEXPLAINED DEPOSI TS IN THE CAPITAL ACCOUNTS OF THE PARTNERS BY ADMITTING ADDITIONAL EV IDENCE IN THE FORM OF VARIOUS DOCUMENTS AS MENTIONED IN PARAGRAPH 5.3 OF THE APPELLATE ORDER IN CONTRAVENTION OF THE PROVISIONS OF RULE 46 A(3) OF THE INCOME TAX RULES, 1962. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. C.I.T.(A-XII, AHMEDABAD OUGHT TO HAVE UPHELD THE OR DER OF THE ASSESSING OFFICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE L D. C.I.T.(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESTORED. 3. IN THIS CASE, THE NOTICE FIXING THE DATE OF HEAR ING FOR TODAY, I.E. 11.02.2010 WAS SERVED ON THE ASSESSEE THROUGH DEPARTMENT. THE ITO, WARD-6(4) , AHMEDABAD VIDE LETTER DATED 03.02.2010 2 ITA NO. 1225/AHD/2007 INFORMED THE REGISTRY THAT NOTICE IS DULY SERVED ON THE ASSESSEE ON 02.02.2010. THE ACKNOWLEDGMENT RECEIVED IS PLACED ON RECORD. DESPIT E THE SERVICE OF NOTICE THROUGH THE A.O., ON THE DATE OF HEARING NEITHER ANYBODY APPEARED FROM T HE SIDE OF THE ASSESSEE NOR AN APPLICATION FOR ADJOURNMENT RECEIVED. WE, THEREFORE, PROCEED TO DEC IDE THE APPEAL ON THE BASIS OF THE SUBMISSIONS MADE BY THE LD. D.R. AND THE MATERIAL A VAILABLE ON RECORD. 4. AT THE TIME OF HEARING, SHRI M.C. PANDIT, SR. D. R. APPEARING ON BEHALF OF THE REVENUE CONTENDED THAT THE A.O. MADE THE ADDITION OF RS.10, 50,000-/- ON ACCOUNT OF UNEXPLAINED DEPOSITS IN THE CAPITAL ACCOUNTS OF THE PARTNERS. IN THE IMP UGNED ORDER, THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DELETED THE SAID ADDITION BY AD MITTING ADDITIONAL EVIDENCES IN THE FORM OF VARIOUS DOCUMENTS AS MENTIONED IN PARA 5.3. OF THE IMPUGNED ORDER IN CONTRAVENTION OF PROVISIONS OF RULE 46A(3) OF INCOME TAX RULES, 1962 . HE ACCORDINGLY CONTENDED THAT THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) BE S ET ASIDE. 4.1. WITH REGARD TO THE ADDITION OF RS.50,000/-, TH E LD. D.R. SUBMITTED THAT THIS ADDITION IS ALSO RIGHTLY MADE BY THE A.O. BECAUSE THIS ADDITION WAS MADE ON ACCOUNT OF THE SHORTAGE CLAIMED BY THE ASSESSEE ON DAY-TO-DAY BASIS, WHICH IS MENTIONE D IN THE STOCK RECORD. THERE IS A FALL IN G.P. IN THE ASSESSMENT YEAR UNDER APPEAL, THEREFORE, THE AD DITION IS RIGHTLY MADE. 5. HAVING HEARD THE LD. DEPARTMENTAL REPRESENTATIVE , WE HAVE CAREFULLY GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE IS ENGAGE D IN THE BUSINESS OF RUNNING PETROL PUMP AND SALE OF PETROL, DIESEL AND OIL. DURING THE YEAR, TH E ASSESSEE HAS SHOWN TURNOVER OF RS.17,84,75,922/- AND GROSS PROFIT AT 1.59% AGAINST TURNOVER OF RS.16,94,96,868/- AND G.P. AT 1.66% IN THE IMMEDIATE PRECEDING YEAR. THE A.O. AL SO MENTIONED THAT THE ASSESSEE CLAIMED SHORTAGE OF 22,674 LTRS. OF PETROL AND 17,064 LTRS. OF DIESEL. BEFORE THE A.O. THE ASSESSEE HAS NOT FURNISHED ANY EXPLANATION. HOWEVER, BEFORE THE LEAR NED COMMISSIONER OF INCOME TAX(APPEALS), THE ASSESSEE HAS FURNISHED THE EXPLAN ATION WHICH HE HAS ACCEPTED. ADMITTEDLY, WHATEVER EXPLANATION FURNISHED BEFORE THE LEARNED C OMMISSIONER OF INCOME TAX(APPEALS) WAS NOT FURNISHED BEFORE THE A.O. THE LEARNED COMMISSIO NER OF INCOME TAX(APPEALS) WITHOUT CALLING THE REMAND REPORT ADMITTED THE EXPLANATION OF THE ASSESSEE. WE, THEREFORE, SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS ) ON THIS ISSUE AND RESTORE THE MATTER TO 3 ITA NO. 1225/AHD/2007 THE FILE OF A.O. WITH THE DIRECTION THAT THE ASSESS EE SHALL FURNISH BEFORE THE A.O. WHATEVER EXPLANATION FURNISHED BEFORE THE CIT(A). THE A.O. W ILL EXAMINE THE SAME AND RE-ADJUDICATE THE ADDITION OF RS.50,000/- AFRESH IN ACCORDANCE WITH L AW. 5.1. WITH REGARD TO THE ADDITION OF RS.10,50,000/- ALSO, WE FIND THAT THE ASSESSEE HAS FURNISHED FRESH EVIDENCES/ DOCUMENTS BEFORE THE LEARNED COMMI SSIONER OF INCOME TAX(APPEALS). THIS ISSUE IS ALSO RESTORED BACK TO THE FILE OF A.O. WIT H THE DIRECTION THAT THE ASSESSEE SHALL FURNISH ALL THE DOCUMENTS/ EXPLANATION, WHICH WAS FURNISHED BEF ORE THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS). THE A.O. WILL EXAMINE THE SAME AND RE -ADJUDICATE THE ADDITION OF RS.10,50,000/- AFRESH IN ACCORDANCE WITH LAW. 6. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE REVENUE IS TREATED AS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 12.02.201 0 SD/- SD/- (D.C. AGRAWAL) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 12 / 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.