ITO, Jaipur V. KAPISH COLONIZERS P LTD., Jaipur

ITA 126/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99336 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 01-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P BHATEJA
• Section: 143(3); 145

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VH-VKJ-EHUK] YS[KK LNL; ,OA JH YFYR DQEKJ] U;KF; D LNL; DS LE{K BEFORE: SHRI T.R.MEENA, AM & SHRI LALIET KUMAR, JM VK;DJ VIHY LA -@ ITA NO. 126/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2007-08 INCOME TAX OFFICER, WARD 6(2), JAIPUR. CUKE VS. M/S KAPISH COLONIZERS PVT. LTD., AMRIT KALASH, NEAR KAMAL & CO., TONK ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AABCK 2812 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI O.P. BHATEJA (ADDL. CIT) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : NONE (DATE WAS NOTED) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 24/09/2015. MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 30/09/2015. VKNS'K@ ORDER PER T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER DATED 29/11/2012 OF THE LEARNED C.I.T.(A), JODHPUR, CAMP A T JAIPUR FOR A.Y. 2007-08. THE EFFECTIVE GROUNDS OF APPEAL ARE AS UND ER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A), JODHPUR CAMP AT JAIPUR HAS ERRED IN: 2 ITA NO. 126/JP/2013 ITO VS KAPISH COLONIZERS (I) NOT UPHOLDING THE INVOKING OF THE PROVISIONS O F SECTION 145 OF THE IT ACT IN SPITE OF THE FACTS THAT VARIOUS DISCREPANCIES WERE NOTICED BY THE A.O. IN BOOKS OF ACCOUNTS AND THE ASSESSEE HAS NOT EXPLAINED THE BASIC DEFECTS POINTED OUT BY THE A.O. (II) NOT UPHOLDING THE ESTIMATION OF INCOME MADE BY THE A.O. WHICH WAS BASED ON THE SELLING RATE DECIDED ON THE BASIS OF AGREEMENTS MADE BY THE ASSESSEE ITSELF IN ONE OF THE CASES. 2. BOTH THE GROUNDS OF APPEAL ARE INTERLINKED AND A RE AGAINST NOT UPHOLDING THE INVOKING THE PROVISIONS OF SECTION U/ S 145(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE AC T) AND NOT UPHOLDING THE ESTIMATION OF INCOME MADE BY THE ASSE SSING OFFICER WHICH WAS BASED ON THE SELLING RATE DECIDED ON THE BASIS O F AGREEMENTS MADE BY THE ASSESSEE. THE ASSESSEE COMPANY IS A BUILDER. THE ASSESSEE FILES ITS RETURN ON 25/10/2007 DECLARING INCOME AT NIL. TH E CASE WAS SCRUTINIZED U/S 143(3) OF THE ACT. THE ASSESSEE COMP ANY WAS ENTERED INTO AN AGREEMENT WITH SH. HEERA CHAND JAIN, OWNER OF THE LAND SITUATED AT TONK ROAD TO DEVELOP THE LAND AND TO BUI LD/CONSTRUCT FLATS AND TO SELL THEM. ACCORDING TO THE AGREEMENT, SH. H EERA CHAND JAIN WOULD RECEIVE A SHARE OF 35% OF THE SALE PROCEEDS AN D THE BALANCE 65% 3 ITA NO. 126/JP/2013 ITO VS KAPISH COLONIZERS WAS TO BE RECEIVED BY THE ASSESSEE COMPANY ITSELF. D URING THE COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE PRODUCED CASH BOOK , LEDGER ETC. MAINTAINED ON COMPUTER. DISCREPANCIES FOUND DURING COURSE OF VERIFICATION IS REPRODUCED BY THE ASSESSING OFFICER AT PAGE NO. 2 OF THE ASSESSMENT ORDER. HE FURTHER OBSERVED THAT ALL THE DISCREPANCIES FOUND IN THE BOOKS WERE SPECIFIC DEFECTS WHICH RENDERED TH E BOOKS OF ACCOUNT OF THE ASSESSEE LIABLE TO BE REJECTED BY INVOKING T HE PROVISIONS OF SECTION 145(3) OF THE ACT. A SHOW CAUSE NOTICE WAS I SSUED TO THE ASSESSEE ON 23/11/2009 BY WHICH THE ASSESSEE WAS ASK ED TO EXPLAIN WHY ITS BOOKS OF ACCOUNT BE NOT REJECTED AND WHY ITS SALES CONSIDERATION BE NOT WORKED OUT AS PER ITS PAST HISTORY WHICH WAS AP PLIED IN A.Y. 2004-05 TO 2006-07. IN RESPONSE THEREOF, THE AR OF THE ASSESSEE VIDE HIS LETTER DATED 14/12/2009 FILED BEFORE THE ASSESS ING OFFICER AND SUBMITTED THAT THE LEARNED ITAT VIDE ITS ORDER IN T HE APPEAL NO. ITA 995/JP/2008 AND ITA 718/JP/2008 FOR THE A.Y. 2004-0 5 AND ITA NO. 200/JP/2009 FOR A.Y. 2005-06 HAS ACCEPTED THE BOOKS OF ACCOUNT OF THE ASSESSEE AS WELL AS THE RATE AT WHICH THE ASSESSEE RE CORDED ALL OF ITS SALES FOR THE PERIOD. IN VIEW THEREOF HE SUBMITTED THAT BOOKS OF ACCOUNT OF ASSESSEE SHOULD NOT BE REJECTED. 4 ITA NO. 126/JP/2013 ITO VS KAPISH COLONIZERS 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WHO HAD ALLOWED THE APPEAL BY OBSERVING THAT THE HONBLE ITAT HAS ALREAD Y DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN ITA NO. 718/JP/2008 FO R A.Y. 2004-05 AND ITA NO. 200/JP/2009 FOR A.Y. 2005-06. FROM PERUSAL OF THE ORDER OF THE HONBLE ITAT, THE LD CIT(A) FOUND THAT IDENTICAL ISSU ES ARE INVOLVED IN THIS GROUND OF APPEAL, WERE ALSO INVOLVED IN THE APP ELLANTS APPEAL FOR A.Y. 2004-05 AND 2005-06. THEREFORE, IT IS OBSERVED THAT THE ISSUES INVOLVED IN THIS REGARD OF APPEAL ARE ALREADY COVER ED IN FAVOUR OF THE APPELLANT. HE ALSO HELD THAT THE ISSUE HAS ALSO DEC IDED IN FAVOUR OF THE APPELLANT IN IMMEDIATE PRECEDING YEAR I.E. 2006-07 BY THE THEN LD CIT(A) VIDE ORDER DATED 15/2/2010 IN APPEAL NO. 652/ JPR/08-09. THEREFORE, HE ALLOWED THE APPEAL OF ASSESSEE AND DIRE CTED THE ASSESSING OFFICER TO DELETE THE IMPUGNED ADDITION OF RS. 21,2 5,935/-. 4. NOW REVENUE IS IN APPEAL BEFORE US. THE LD DR VEH EMENTLY SUPPORTED THE ORDER OF THE ASSESSING OFFICER AND RE ITERATED THE ARGUMENTS MADE IN HIS ASSESSMENT ORDER. 5. NONE WAS ATTENDED ON BEHALF OF ASSESSEE AT THE TI ME OF HEARING AFTER DATE WAS NOTED BY THE LD AR. 5 ITA NO. 126/JP/2013 ITO VS KAPISH COLONIZERS 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ISSUE INVOLVED IN THE YEAR UNDER CONSIDERATION IS ALREADY COVERED AND DECIDED IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN CASE BY THE ORDER OF THE COORDINATE BENCH FOR A.Y. 2004-05-2005-06 IN ITA NO. 718/JP/2008 AND ITA NO. 200/JP/2009. THE COORDINATE BENCH HAS HELD AS UNDER: - WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E FACTS OF THE CASE. ON IDENTICAL ISSUE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004-05, THE APPLICATI ON OF SECTION 145(3) AND TRADING ADDITION MADE HAVE BEEN REVERSED BY OUR ONE ORDER IN ITA NO. 718/JP/2008 DA TED 20/02/2009. SINCE, THE FACTS AND CIRCUMSTANCES IN T HE PRESENT CASE ARE IDENTICAL IN ASSESSEES OWN CASE FO R THE ASSESSMENT YEAR 2004-05 AND THE ISSUE FOR THE SAID YEAR HAS ALREADY COME UP AND DECIDED BY THIS BENCH IN IT A NO. 718/JP/2008 DATED 20/02/2009 MENTIONED HEREINABOVE AND IN PARTICULAR PARA 10 AND 11 OF THE SAID ORDER FOR THE ASSESSMENT YEAR 2004-05, SUPRA AND PERUSAL OF THE FACTS OF THE CASE, THE ASSESSING OFF ICER IS NOT JUSTIFIED IN INVOKING THE PROVISIONS OF SEC. 14 5(3) OF THE ACT AND NO TRADING ADDITION IS CALLED FOR. THE A DDITION SO MADE IS DIRECTED TO BE DELETED. 6 ITA NO. 126/JP/2013 ITO VS KAPISH COLONIZERS BY RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINAT E BENCH IN ASSESSEES OWN CASE FOR A.Y. 2004-05 AND 2005-06, WE, THEREFORE, UPHOLD THE ORDER OF THE LD CIT(A) ON THIS GROUND. 7. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 30/09/2015. SD/- SD/- YFYR DQEKJ VH-VKJ-EHUK (LALIET KUMAR) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 30 TH SEPTEMBER, 2015 RANJAN* VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- THE ITO, WARD 6(2), JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- M/S KAPISH COLONIZERS PVT. LTD., JAI PUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO.126/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR