Sundarban Dairy & Farm, Kolkata V. CIT, Kolkata-XIII, Kolkata, Kolkata

ITA 1360/KOL/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74976 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 24-09-2012
• Court: TRIBUNAL
• Department Lawyers: RAVI JAIN
• Assessee Lawyers: A C GANERIWALA
• Keywords: Condonation of delay
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH A , KOLKATA [BEFORE HONBLE SRI ABRAHAM P.GEORGE, AM & HONBL E SRI GEORGE MATHAN, JM] ITA NO.1360/KOL/2012 ASSESSMENT YEAR : 2007-08 ( APPELLANT ) (RESPONDENT) SUNDARBAN DAIRY & FARM -VS- C.I.T., KOLKATA-XIII , KOLKATA KOLKATA PAN:AAMFS 1764 M) FOR THE APPELLANT SHRI A.C.GANERIWALA, FCA FOR THE RESPONDENT: SHRI RAVI JAIN, CIT (DR) DATE OF HEARING : 16.01.2014 DATE OF PRONOUNCEMENT : 17. 01.2014. ORDER PER SHRI GEORGE MATHAN, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. C.I.T.-KOLKATA- XIII, KOLKATA IN M.NO.CIT-XIII/263/14/10-11/8484-86 DATED 18.03.2011 FOR ASSESSMENT YEAR 2007-08. 2. SHRI A.C.GANERIWALA, FCA REPRESENTED ON BEHALF OF THE ASSESSEE AND SHRI RAVI JAIN, CIT(DR) REPRESENTED ON BEHALF OF THE REVENU E. 3. THE APPEAL OF THE ASSESSEE IS TIME BARRED BY 12 26 DAYS. THE ASSESSEE HAS FILED NECESSARY AFFIDAVIT FOR CONDONATION OF DELAY WHEREI N IT HAS BEEN SPECIFIED THAT THE DELAY WAS ON ACCOUNT OF THE SENIOR PARTNER OF THE A SSESSEE FIRM SUFFERING FROM LIVER CANCER AND HAD TO BE OUT OF STATION AT VELLORE. THE OTHER PARTNERS BEING SONS AND WIFE WERE ALSO WITH HIM AND CONSEQUENTLY COULD NOT GIVE PROPER ATTENTION IN RESPECT OF THE TAX MATTERS. THE LD. CIT(DR) DID NOT RAISE ANY OBJE CTION IN REGARD TO THE CONDONATION OF DELAY. CONSEQUENTLY THE DELAY IS CONDONED AND TH E APPEAL OF ASSESSEE IS DISPOSED OF ON MERITS. ITA NO.1360/KOL/2012 SUN DARBAN DAIRY & FARM. A.YR.2007-08 2 4. IT WAS SUBMITTED BY THE LD. AR THAT IN THE ORDE R PASSED U/S 263 OF THE IT ACT THE LD. CIT HAS NOT SPECIFIED WHAT IS THE ERROR IN THE ASSESSMENT ORDER WHICH HAS CAUSED PREJUDICE TO THE INTEREST OF THE REVENUE. IT WAS TH E SUBMISSION THAT IN THE DIRECTION OF THE LD. CIT IN PARA 3 OF HIS ORDER WHERE THE LD. CI T HAS NOT SPECIFIED AS TO THE ERRONEOUS AND PREJUDICIAL NATURE OF THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. THE LD. CIT ONLY MENTIONS THAT THE AO WHILE COMPLET ING THIS ASSESSMENT HAS NOT EXAMINED THE ISSUE OF UNACCOUNTED SALES DETECTED AT THE TIME OF SURVEY AND THAT AO HAS NOT RECORDED ANY REASONS FOR ACCEPTING THE G.P. RATE OF 22% ADMITTED BY THE ASSESSEE AS AGAINST 30% ESTIMATED AT THE TIME OF SU RVEY. THE LD. AR FURTHER DREW OUR ATTENTION TO THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT WHICH WAS THE SUBJECT MATTER OF THE ORDER PASSED U/S 263 OF THE ACT. IT W AS THE SUBMISSION THAT A SURVEY WAS CONDUCTED AT THE ASSESSEES PREMISES AND IN THE ASS ESSMENT ORDER THE AO HAS RECOGNIZED THAT THE MATERIALS AVAILABLE IN THE IMPO UNDED BOOKS OF ACCOUNT AND DOCUMENT HAVE BEEN INCORPORATED BY THE ASSESSEE AND FINAL ACCOUNTS HAVE BEEN PREPARED. IT IS ALSO NOTICED THAT THE AO HAD VERIFI ED THE PURCHASE AND ADVERTISEMENT EXPENSES AS HAS BEEN RECORDED IN THE ASSESSMENT ORD ER. IT WAS THE FURTHER SUBMISSION THAT THE ASSESSEE HAS NOT DISCLOSED ANY G.P. 22% NO R HAS ANY INCOME OF THE ASSESSEE BEEN ESTIMATED AT 30% AT THE TIME OF SURVEY. IT WAS THE SUBMISSION THAT THE BOOKS OF THE ASSESSEE HAVE BEEN ACCEPTED AND QUESTION OF EST IMATING THE ASSESSEES INCOME WAS NOT POSSIBLE. IT WAS THE SUBMISSION THAT ORDER OF T HE LD. CIT PASSED U/S 263 OF THE ACT WAS LIABLE TO BE QUASHED. 5. IN REPLY THE LD. DR VEHEMENTLY SUPPORTED THE ORD ER OF THE LD. CIT. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. A PERU SAL OF THE ORDER PASSED U/S 263 OF THE ACT SHOWS THAT IN THE OPERATIONAL PORTIO N OF THE ORDER I.E. PARAS 3 AND 4 OF THE ORDER OF THE LD. CIT THE LD. CIT HAS NOT SPECIF IED AS TO WHY HE IS OF THE VIEW THAT THE ORDER PASSED U/S 143(3) OF THE ACT BY THE AO ON 26.05.2008 WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. ADMITTE DLY A PERUSAL OF THE ASSESSMENT ORDER DATED 26.05.2008 SHOWS THAT THE AO HAS ACCEPTED THA T THE FINAL ACCOUNTS HAVE BEEN PREPARED ON THE BASIS OF THE XEROX COPY SUPPLIED OF THE IMPOUNDED BOOKS AND ITA NO.1360/KOL/2012 SUN DARBAN DAIRY & FARM. A.YR.2007-08 3 MATERIALS. THE AO HAS ALSO DONE TEST CHECKS AND NO ADVERSE INFERENCE HAS BEEN DRAWN. FURTHER IT IS ALSO NOTICED THAT THE BOOKS OF ACCOUN TS OF THE ASSESSEE HAS NOT BEEN REJECTED FOR THE PURPOSE OF ESTIMATING ITS INCOME. ADMITTEDLY IN RESPONSE TO THE SHOW CAUSE NOTICE PASSED U/S 263 OF THE ACT THE ASSESSEE HAS ALSO CATEGORICALLY MENTIONED THAT THE SALES TO THE EXTENT OF RS.13,13,745/- HAVE ALSO BEEN DULY ACCOUNTED AND ASSESSED TO TAX. NONE OF THE EXPLANATION PROVIDED B Y THE ASSESSEE HAS BEEN REFUTED OR DISLODGED BY THE LD. CIT. IN THE CIRCUMSTANCES WE A RE OF THE VIEW THAT THE ORDER PASSED U/S 263 OF THE ACT BY THE LD. CIT IS UNSUSTAINABLE UNDER LAW AND CONSEQUENTLY THE SAME STANDS QUASHED. 7. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED. . ORDER PRONOUNCED IN THE COURT ON 17.01.2014. SD/- SD/- [ABRAHAM P.GEORGE] [ GEORGE MATHAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 17.01.2014. R.G.(.P.S.) COPY OF THE ORDER FORWARDED TO: 1. SUNDARBAN DAIRY & FARM, 131A, B.B.GANGULY STREET, K OLKATA-700012. 2 C.I.T., KOLKATA-XIII, KOLKATA 3 . CIT(A)- KOLKATA 4. CIT - KOLKATA. 5. CIT(A)DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES ITA NO.1360/KOL/2012 SUN DARBAN DAIRY & FARM. A.YR.2007-08 4