Dy.Commissioner of Income Tax, Lucknow V. M/s Transfitting Industries, Lucknow

ITA 135/LKW/2014

• Counselvise Citation: 13523714 RSA 2014
• Duration Of Justice: 6 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-09-2014
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 04-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P SRIVASTA VA
• Section: 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.135/LKW/2014 ASSESSMENT YEAR:2009 - 10 DY.C.I.T., RANGE - I, LUCKNOW. VS. M/S TRANSFITTING INDUSTRIES, ROOM NO. 202, DURGAMA TOWER, LALBAGH, LUCKNOW. PAN:AAEFT8847L (APPELLANT) (RESPONDENT) APPELLANT BY SHRI Y. P. SRIVASTAVA, D. R. RESPONDENT BY NONE DATE OF HEARING 04/08/2014 DATE OF PRONOUNCEMENT 1 7 /09/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, LUCKNOW, DATED 19/11/2013 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN RESTRICTING ESTIMATION OF N.P. TO 5.5% OF THE TURNOVER AS AGAINST 10% ESTIMATED BY THE A.O. HE FAILED TO APPRECIATE THAT HUGE UNVERIFIED CREDITORS OUTSTANDING IN THE BALANCE SHEET ARE AN EXTENSION OF BOGUS PURCH ASES CLAIMED IN THE TRADING A/C WHICH HAS DIRECT BEARING ON THE NET PROFIT OF THE ASSESSEE. 2. THE LD. CIT (A) HAS ERRED IN LAW & ON FACTS OF THE CASE IN FAILING TO APPRECIATE THE FACT THAT ONCE HE HAD 2 CONFIRMED THE ACTION OF A.O. IN ESTIMATING THE N.P. R ATE IN PASSING THE ASSESSMENT ORDER U/S 144 OF THE I.T. ACT, HE COULD NOT SUBSTITUTE HIS ESTIMATE FOR THAT OF THE A.O. WITHOUT GIVING ANY SOUND BASIS FOR THE SAME. 3. APPELLANT CRAVES LEAVE TO ADD OR AMEND THE GROUND OF APPEAL, AS STATED ABOVE AS AND WHEN NEED OF DOING SO ARISES WITH THE PRIOR PERMISSION OF THE HON'BLE BENCH. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE ON THE APPOINTED DATE OF HEARING INSPITE OF NOTICE AND HENCE, WE PROCEED TO DECIDE THE APPEAL OF THE REVENUE EX - PARTE QUA THE ASSESSEE. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ASSESSMENT ORDER. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF LEARNED D.R. OF THE REVENUE, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. WE FIND THAT NO COMPLIAN CE WAS MADE BY THE ASSESSEE BEFORE THE ASSESSING OFFICER AND THEREFORE, THE ASSESSING OFFICER WAS COMPELLED TO COMPLETE THE ASSESSMENT U/S 144 OF THE ACT. IN SUCH SITUATION, THE ASSESSING OFFICER ESTIMATED THE NET PROFIT OF THE ASSESSEE AT 10%. THE CIT(A ) HAS REDUCED THIS PERCENTAGE TO 5.5% AS AGAINST 10% ON THE BASIS THAT IN SOME CASES , THE TRIBUNAL HAS CONFIRMED THE ADDITION OF NET PROFIT BETWEEN 5.5% TO 6% WITHOUT MAKING ANY COMPARISON OF THE FACTS OF THE PRESENT CASE AND THOSE CASES , WHERE THE TRIBUNA L DECIDED THE NET PROFIT BETWEEN 5.5% TO 6%. BEFORE CIT(A) ALSO, THE ASSESSEE COULD NOT PRODUCE THE DETAILS AND EVIDENCES, WHICH WERE CALLED FOR BY THE ASSESSING OFFICER BUT WERE NOT PRODUCED BEFORE HIM. UNDER THESE FACTS, WE FEEL THAT THE ORDER OF CIT(A ) IS NOT SUSTAINABLE BECAUSE NO COMPARISON HAS BEEN MADE BY HIM O F THE FACTS OF THE PRESENT CASE WITH THE FACTS OF OTHER CASES AND SINCE NO DETAILS OR EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE BEFORE ASSESSING OFFICER OR 3 CIT(A), WE REVERSE THE OR DER OF CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICER BY HOLDING THAT IN THE FACTS OF THE PRESENT CASE, THE ESTIMATION BY THE A.O. AT 10% IS PROPER AND REASONABLE . 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN T HE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUN IL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 7 /09/2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR