Sri Sivanaga Kumar Devineni (Individual), Warangal V. Asst. Commissioner of Income Tax, Circle -1, Warangal

ITA 1354/HYD/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1386 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 04-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANJANA SAHU
• Assessee Lawyers: K V CHALAMAIAH
• Keywords: Opportunity of being heard
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER ITA NO .1354/HYD/12 ASST. YEAR 2009-10 SRI SIVANAGA KUMAR DEVENENI (INDIVIDUAL), WARANGAL. PAN: AAYPD 1888R V/S. ACIT, CIR-1, WARANGAL. (APPELLANT) (RESPONDENT) APPELLANT BY : SRI K.V. CHALAMAIAH RESPONDENT BY : SMT. ANJANA SAHU DATE OF HEARING 20-12-2012 DATE OF PRONOUNCEMENT 04-01-2013 . O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: THE ASSESSEE HAS FILED THIS APPEAL BEING AGGRIEVED BY THE ORDER DATED 25-6-2012 PASSED BY THE CIT (A)-VI, HYDERABAD IN APPEAL NO.0255/11-12/CIT(A)-VI PERTAINING TO THE ASSESSMENT YE AR 2009-10. 2. IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE ESTIMA TION OF PROFIT FROM TRANSPORT BUSINESS AT 8% MADE BY THE ASSESSING OFFICER WHICH WAS SUSTAINED BY THE CIT (A). 3. BRIEFLY THE FACTS ARE THE ASSESSEE IS AN INDIVIDUAL DERIVING INCOME FROM TRANSPORT CONTRACT. FOR THE ASSESSMENT YEAR U NDER DISPUTE, THE ASSESSEE FILED ITS RETURN OF INCOME DECLARING A TOTAL INCOME OF RS.60,90,510/-. IN COURSE OF SCRUTINY ASSESSMENT PROCEED INGS, THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE BOOKS OF A CCOUNTS AND OTHER RELEVANT DOCUMENTS AS WELL AS CALLED FOR VARIO 9US OTHER ITA NO.1354 OF 2012 SRI SIVANAGA KUMAR DIVINENI, WARANGAL 2 INFORMATION FOR SUBSTANTIATING THE COMPUTATION OF INCO ME MADE BY HIM. IN SPITE OF AVAILING SEVERAL OPPORTUNITIES, THE ASSESSEE O NLY PRODUCED SIX NUMBERS OF TDS CERTIFICATES, COPIES OF BANK STATEMENTS AND RECONCILIATION STATEMENT OF THE GROSS RECEIPTS. HOWEVER, AS THE ASSESSEE DID NOT PRODUCE HIS BOOKS OF ACCOUNTS, THE ASSESSING OF FICER PROCEEDED TO COMPLETE HIS ASSESSMENT TO THE BEST OF HIS JUD GMENT U/S 144 OF THE IT ACT BY ESTIMATING THE INCOME AT THE RATE OF 8% OF THE GROSS RECEIPTS FROM TRANSPORT BUSINESS. 4. THE ASSESSEE BEING AGGRIEVED CHALLENGED THE ASSESSMENT OR DER BEFORE THE CIT (A). THE CIT (A) ALSO SUSTAINED THE ADD ITION MADE BY THE ASSESSING OFFICER BY OBSERVING THAT SINCE THE ASSESSEE DID NOT PRODUCE HIS BOOKS OF ACCOUNTS AND OTHER DOCUMENTS, THE ASSESSING OFFI CER WAS JUSTIFIED IN ESTIMATING THE PROFIT AT 8% OF THE TURNO VER. 5. THE LEARNED AR SUBMITTED BEFORE US THOUGH ALL THE RELEVANT DETAILS WERE SUBMITTED BEFORE THE ASSESSING OFFICER, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN ESTIMATING THE PROFIT AT T HE RATE OF 8% WITHOUT PROPERLY CONSIDERING THE DOCUMENTS SUBMITTED BEF ORE HIM. THE LEARNED AR SUBMITTED THAT THE CIT (A) ALSO COMMITTED A SAME ERROR. THE LEARNED AR FURTHER SUBMITTED THAT THE PROFIT ESTI MATED AT 8% IS EXCESSIVELY HIGH IN THIS LINE OF BUSINESS. CONSIDERING TH E FACT THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH HAS HELD THE VIEW THAT IN SIMILAR LINE OF BUSINESS THE NET PROFIT ESTIMATED AT 3% IS REASONABLE. THE LEARNED AR FURTHER SUBMITTED THAT GIVEN AN OPPOR TUNITY, THE ASSESSEE WILL PRODUCE THE NECESSARY RELEVANT BOOKS OF ACCOUNTS AND OTHER DETAILS BEFORE THE ASSESSING OFFICER FOR DETERMINA TION OF ACTUAL INCOME OF THE ASSESSEE. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE O THER HAND, STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIE S. ITA NO.1354 OF 2012 SRI SIVANAGA KUMAR DIVINENI, WARANGAL 3 7. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIAL ON RECORD. UNDISPUTEDLY, SINCE THE ASSESSEE DID NOT PRODUCE THE RELEVANT BOOKS OF ACCOUNTS AND OTHER DOCUMENTS AS CALLED FOR BY THE ASSESSING OFFICER, THE ASSESSING OFFICER HAD NO OTHER OPTION BUT T O PROCEED TO COMPLETE THE ASSESSMENT TO THE BEST OF HIS JUDGMENT U/S 14 4 OF THE ACT BY ESTIMATING THE PROFIT AT 8% OF THE GROSS RECEIPTS. IT IS CONTENTION OF THE LEARNED AR THAT IN SIMILAR LINE OF BUSINESS, THE INCOME-TAX APPELLATE TRIBUNAL, HYDERABAD BENCH HAS UPHELD THE ESTIMATION OF PROFIT AT 3%. IT HAS ALSO BEEN SUBMITTED BY THE LEARNED AR THAT IF THE ASSESSEE IS GIVEN ONE MORE OPPORTUNITY, HE WILL PRODUCE THE RELEVANT B OOKS OF ACCOUNTS AND OTHER DOCUMENTS BEFORE THE ASSESSING OFFICER FOR PROPE R DETERMINATION OF HIS INCOME. CONSIDERING SUCH SUBMISSION O F THE ASSESSEE, WE ARE INCLINED TO ALLOW ONE MORE OPPORTUNITY TO THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNTS AND OTHER RELEVANT DOCU MENTS BEFORE THE ASSESSING OFFICER. WE THEREFORE REMIT THE MA TTER BACK TO THE ASSESSING OFFICER FOR MAKING ASSESSMENT DE NOVO AFTER GIVING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE MAKE IT CLEAR IF THERE IS STILL NON CO-OPERATION ON PART OF THE ASSESSEE, THE ASSESSING OFFICER IS AT LIBERTY TO COMPLETE THE ASSESSMENT BY DRAWING HIS OWN CONCLUSION IN ACCORDANCE WITH LAW. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 04-01-2013. SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/- 4 TH JANUARY, 2013. ITA NO.1354 OF 2012 SRI SIVANAGA KUMAR DIVINENI, WARANGAL 4 COPY FORWARDED TO: 1. SRI SIVANAGA KUMAR DEVENENI, H.NO.1-7-1275, ADVOCATES COLONY, HANAMKONDA, WARANGAL. 2. 3. 4. ACIT, CIR-1, WARANGAL. COMMISSIONER OF INCOME-TAX (APPEALS)-VI, HYDERABAD. CIT CONCERNED, HYDERABAD. 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. JMR *