SRI RAM PRASAD SHARMA, KHARSAWAN V. ITO WD-2(4), JSR

ITA 13/RAN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1741 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 08-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHANDAN DAS
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI BENCH SMC, RANCHI BEFORE SH. S.S.GODARA, JUDICIAL MEMBER ITA NO.13/RAN/2018 [ASSESSMENT YEAR: 2009-10] SRI RAM PRASAD SHARMA, C/O-PAPPU TRANSPORT, JAGANNATHPUR, BOLAIDIH, GAMHARIA, DIST.-SERAKELA, KHARSAWAN-832108. PAN-AZEPS6937R VS CIT(A) , 1, OFFICE ROAD, JAMSHEDPUR-831001. (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. CHANDAN DAS, JCIT DATE OF HEARING 08.01.2019 DATE OF PRONOUNCEMENT 15 .0 3 .2019 ORDER PER SH. S.S.GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR AY 2009-10 ARISES AGAINST THE ORDER DATED 17.10.2017 PASSED BY THE CIT(A), JAMSHEDPUR IN APPEAL NO......../JSR/2017-18 IN PROCEEDINGS U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT ACT). THE CASE CALLED TWICE. CASE FILE PERUSED. 2. NONE APPEARS AT THE ASSESSEES BEHEST. THE NOTICE WAS ALREADY SENT BY RPAD FOR ITS HEARING TO THE ASSESSEE. HE HAD NOT APPEARED AT THE TIME OF LAST HEARING AS WELL ON 28.11.2018. I THEREFORE PROCEED EX-PARTE AGAINST THE ASSESSEE. 3. THE CIT(A) HAS UPHELD THE AOS FINDINGS RE-ESTIMATING THE ASSESSEES PROFITS AS FOLLOWS:- 4.3. I HAVE GONE THROUGH THE ORDER OF THE LEARNED AO AS WELL AS THE WRITTEN SUBMISSION MADE BY THE APPELLANT. THE AO IN HIS ORDER SATED THAT A NUMBER OF OPPORTUNITY WAS GIVEN TO THE ASSESSEE WHICH WAS NOT COMPLIED/PART COMPLIED/SOUGHT ADJOURNMENT OR NONE COMPLIANCE WAS MADE. FROM THE ITA NO.13/RAN/2018 [ASSESSMENT YEAR: 2009-10] PAGE | 2 PERUSAL OF ABOVE, IT CAN BE SEEN THAT AMPLE OPPORTUNITY WAS GIVEN TO THE ASSESSEE BEFORE COMPLETION OF ASSESSMENT BY THE AO. THEREFORE THE AO DID NOT ERRED IN LAW AND OF FACTS AS STATED BY THE ASSESSEE IN PREDECESSOR HAD FACED IN ABSENCE OF PROPER BOOKS OF ACCOUNTS. I DO NO FIND THIS BEING BASED ON MATERIAL FACTS. HIS PREDECESSOR WAS ONLY PROVIDED WITH COPY OF BANK ACCOUNT AND AUDITED ACCOUNT WHEREAS THE ASSESSEE HAS PROVIDED HEAD-WISE LEDGER OF ALL EXPENSES AN ASSETS DETAILS THEREFORE IT IS WRONG TO SAY THAT THERE IS ABSENCE OF PROPER BOOKS OF ACCOUNTS. HOWEVER THE AO HAS ESTIMATED THE INCOME DUE TO NONE PRODUCTION OF SUPPORTING BILLS AND VOUCHERS. IN THE CASE OF SHRI RAM JHANWAR LAL VS. ITO (2005) 98 TTJ 639 (JODHPUR) IT IS HELD THAT THE AO DOES NOT GET UNFETTERED POWERS TO MAKE ASSESSMENT AT ANY INCOME, HE IS SUPPOSE TO BE GUIDED BY PREVIOUS RESULTS OF THE ASSESSEE OR SOME COMPARABLE CASES. I DO NOT FIND ANY VIEW EXPRESSED BY AO IN HIS ASSESSMENT ORDER. I ALSO DO NOT FIND ANY COMPARABLE CASES HAS BEEN TAKEN BY THE AO. RATHER THE ASSESSEE HAS MENTIONED THAT TRANSPORTERS EARNS TO 1% TO 1.5% OF THE TURNOVER. THE DECLARED PROFIT BY THE ASSESSEE IS 1.26% OF THE TOTAL TURNOVER. THERE ARE SEVERAL CASES OF TRANSPORTERS IN THIS CHARGE WHICH IS SHOWING PROFIT WITHIN THIS RANGE AS DECLARED BY THE APPELLANT. THE APEX COURT IN THE CASE OF BRIJBHUSHAN LAL VS CIT (1978) 115 ITR 524 (SC) HAS HELD THAT ESTIMATION MUST BE HONEST AND FARE. THE HONBLE MP HIGH COURT IN THE CASE OF GANGA PRASAD SHARMA VS. CIT(1981) 132 ITR 87 HAS HELD THAT THE BASIS OF COMPUTATION MUST BE DISCLOSED BY THE AO. I DO NOT FIND IN THE AOS ORDER THAT ANY BASIS HAS BEEN GIVEN FOR HIS ESTIMATION. CONSIDERING THE FACTS THE AO IS DIRECTED TO ESTIMATE THE PROFIT @ 1.75% OF THE GROSS TURNOVER AND ALSO GIVE THE BENEFIT OF INCOME DECLARED BY THE ASSESSEE, THE REMAINING PORTION REMAINS CONFIRMED. ITA NO.13/RAN/2018 [ASSESSMENT YEAR: 2009-10] PAGE | 3 5. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 4. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVAL PLEADINGS. THERE IS NO DISPUTE THAT THE ASSESSEE HAD DECLARED HIS PROFITS @1.26% AS AGAINST THE ASSESSING OFFICER AND THE CIT(A) ESTIMATING THE SAID PROFIT RATE @4.5% AND 1.76% OF THE GROSS TURNOVER; RESPECTIVELY. THIS TAXPAYER IS ADMITTEDLY ENGAGED IN TRANSPORT AND OTHER CONTRACTOR BUSINESS. MR. MONDAL FAILS TO REBUT THE CRUCIAL FACT DURING THE COURSE OF HEARING THAT NEITHER THE LOWER AUTHORITIES HAVE CITED ANY COMPARABLE INSTANCE NOR HAVE THEY CONDONED ASSESSEES PROFIT RATE IN ANY PRECEDING OR SUCCEEDING ASSESSMENT YEAR. THE FACT ALSO REMAINS THAT ASSESSEES PROFIT RATE @ 1.26 % IS TOO LESS PER SE. I THEREFORE DIRECT THE ASSESSING AUTHORITY TO RESTRICT THE IMPUGNED ADDITION TO THE EXTENT OF LUMPSUM AMOUNT OF RS.50,000/- WITH A RIDER THAT THE SAME SHALL NOT BE TREATED AS A PRECEDENT IN ANY OTHER CASE OR ASSESSMENT YEAR; AS THE CASE MAY BE. 5. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 15.03.2019. SD/- (S.S.GODARA) JUDICIAL MEMBER DATE:- 15.03.2019 *AMIT KUMAR* COPY FORWARDED TO: 1. APPELLANT- SRI RAM PRASAD SHARMA, C/O-PAPPU TRANSPORT, JAGANNATHPUR, BOLAIDIH, GAMHARIA, DIST.-SERAKELA, KHARSAWAN- 832108. 2. RESPONDENT- CIT(A)-I, OFFICE ROAD, JAMSHEDPUR-831001. 3. CIT-RANCHI 4. CIT(APPEALS)-RANCHI 5. DR: ITAT-RANCHI BENCHES SR.P.S./H.O.O ITAT, RANCHI