Priyabrata Samal, Jajpur V. ITO, Ward-1, Paradeep

ITA 148/CTK/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7169 (ITAT-CUTTACK)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 29-03-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 22-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 PRIYABRATA SAMALPROP. MAA BIRAJA TRANSPORT ASSOCIATION, BANISHREE BHAWAN, BANAPUR, BAIDYARAJPUR, JAJPUR VS. ITO, WARD - 1, PARADEEP PAN/GIR NO. AMSPS 1762 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI KESHAV DUBEY, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 29 /03 / 2017 DATE OF PRONOUNCEMENT : 2 9 /03 / 2017 O R D E R THESE ARE APPEALS FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 30.1.2015 , FOR THE ASSESSMENT YEAR 2009 - 2010 AND DATED 25.1.2016 FOR THE ASSESSMENT YEAR 2010 - 2011 . 2. IN ITA NO.179/CTK/2015 FOR ASSESSMENT YEAR 2009 - 2010 , THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER MAKING ADDITION OF ENTIRE GROSS RECEIPTS 2 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 INSTEAD OF DIFFERENCE GROSS RECEIPTS DECLARED BY THE ASSES SEE IN ITS PROFIT AND LOSS ACCOUNT AND AS REFLECTED IN FORM 26AS ON ESTIMATE BASIS. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. THE ASSESSING OFFICER OBSERVED THAT THE GROSS RECEIPTS AS PER 26AS STATEMENT WAS RS.5,95,29,916/ - WHEREAS THE ASSESSEE HAS SHOWN GROSS CONTRACT RECEIPTS IN ITS PROFIT AND LOSS ACCOUNT AT RS.5,89,20,731. THE ASSESSING OFFICER OBSERVED THAT NO BOOKS OF ACCOUNT AND EVIDENCES WERE PRODUCED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS FOR HIS VERIFICATION INSPITE OF SUFFICIENT OPPORTUNITIES ALLOWED TO THE ASSESSEE ON 1.6.12, 14.8.12, 7.9.12, 25.9.12 AND 9.11.12. THEREFORE, HE REJECTED THE BOOK RESULTS OF THE ASSESSEE AND ESTIMATED THE INCOME OF THE ASSESSEE BY APPLYING RATE OF 5% TO THE GROSS RECEIPTS REFLECTED IN FORM 26AS STATEMENT AT RS.5,95,29,9616/ - AND ARRIVED AT THE INCOME OF THE ASSESSEE AT RS.29,76,496/ - . 4. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND CONTENDED BEFORE HE R THAT THE ASSESSING OFFICER HAD NOT ALLOWED SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE AND THAT THE ADDITION SHOULD BE MADE ONLY IN RESPECT OF PROFITS EMBEDDED IN DIFFERENCE OF GROSS RECEIPTS AS SHOWN IN ASSESSEES BOOK AND AS REFLECTED IN 26AS STATEMENT. 5. THE CIT(A) REJECTED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS FAILED TO PUT IN APPEARANCE ON VARIOUS DATES FIXED FOR 3 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 HEARING BY THE ASSESSING OFFICER. FURTHER, DURING THE COURSE OF ASSESSMENT PROCEE DINGS OR EVEN DURING THE APPEAL HEARING BEFORE HER, THE ASSESSEE HAS NOT OBJECTED TO THE GROSS RECEIPTS OF RS.5,95,29,916/ - AS FOUND IN FORM 26AS STATEMENT. SHE OBSERVED THAT THIS BENCH OF THE TRIBUNAL IN THE CASE OF PHULCHAND AGARWALA & CO. ANGUL (ITA NO .182/CTK/2005) FOR ASSESSMENT YEAR 2001 - 02 HAS HELD THAT NON PRODUCTION OF CASH BOOK CAN LEAD TO REJECTION OF BOOKS OF ACCOUNT. IT IS THE CASH BOOK WHERE MAJOR TRANSACTION OF EXPENDITURE AND INC OME ARE ACCOUNTED FOR ON DAY TO DAY BASIS. IN ABSENCE OF THE SAME, THE ASSESSING OFFICER WAS RIGHT IN REJECTING THE BOOK RESULTS AND ESTIMATING THE NET PROFIT @ 5% OF GROSS TURNOVER AS PER 26AS STATEMENT. THE ASSESSING OFFICER BY ESTIMATING THE NET PROFIT AT 5% OF GROSS TURNOVER FOUND IN FORM 26AS STATEMENT HAS TAX ED THE PROFIT ELEMENT EMBEDDED IN THE DIFFERENCE OF TURNOVER. THEREFORE, THERE WAS NO ANOMALY IN THE ACTION OF THE ASSESSING OFFICER AND SUSTAINED THE ORDER OF THE ASSESSING OFFICER. 6. BEING AGGRIEVED BY THE SAID ORDER OF THE CIT(A), THE ASSESSEE IS IN A PPEAL BEFORE ME. 7. LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES. HE COULD NOT POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE CIT(A). I FIND THAT THE CIT(A) HAS OBSERVED THAT DURING THE COURS E OF ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT OBJECT TO THE GROSS RECEIPTS OF RS.5,95,29,916/ - AS PER 26AS STATEMENT. 4 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 HE HAS ALSO NOT CONTROVERTED THE OBSERVATION OF THE CIT(A) THAT THE ASSESSEE FAILED TO PRODUCE CASH BOOK BEFORE THE ASSESSING OFFICE R, WHICH IS PRIMARY BOOKS OF ACCOUNT WHEREIN, THE MAJOR TRANSACTION S OF EXPENDITURE AND INCOME ARE ACCOUNTED FOR ON DAY TODAY BASIS. THE CIT(A) UPHELD THE REJECTION OF BOOK RESULTS OF THE ASSESSEE BY FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF PHUL CHAND AGARWAL (SUPRA), WHEREIN, UNDER SIMILAR FACTS AND CIRCUMSTANCES OF THE CASE, THE TRIBUNAL HAS UPHELD THE REJECTION OF BOOK RESULTS AND ESTIMATION OF PROFIT BY THE ASSESSING OFFICER. THIS FINDING OF THE CIT(A) HAS NOT BEEN CONTROVERTED BY THE AUTHORI SED REPRESENTATIVE OF THE ASSESSEE. THE CONTENTION OF THE AUTHORISED REPRESENTATIVE OF THE ASSESSEE BEFORE ME WAS THAT THE ASSESSEE HAS DISCLOSED NET PROFIT @ 2% IN THE INCOME TAX RETURN IN THIS YEAR AND THAT IN THE IMMEDIATELY PRECEDING TWO ASSESSMENT YE ARS IN AN ASSESSMENT U/S.143(3) OF THE ACT , RATE OF NET PROFIT OF 1.75% WAS ACCEPTED BY THE DEPARTMENT AND, THEREFORE, THE RATE OF NET PROFIT @ 5% APPLIED BY THE ASSESSING OFFICER WAS EXCESSIVE. WHEN ASKED BY THE BENCH TO PRODUCE THE ASSESSMENT ORDERS IN SUPPORT OF HIS CONTENTION, LD AUTHORISED REPRESENTATIVE EXPRESSED HIS INABILITY TO DO SO. THUS, AS THE CONTENTION OF LD A.R. OF THE ASSESSEE WAS UN - SUBSTANTIATED WITH THE SUBMISSION OF ASSESSMENT ORDER OF THE IMMEDIATELY PRECEDING ASSESSMENT YEARS, THE P LEA OF THE LD A.R. CANNOT BE ACCEPTED FOR WANT OF EVIDENCE AND HENCE, REJECTED. THEREFORE, I CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THE GROUND OF APPEAL OF THE ASSESSEE. 5 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 8. IN THE RESULT, APPEAL FOR ASSESSMENT YEAR 2009 - 10 IS DISMISSED. ITA NO.148/C TK/2016 : A. Y. 2010 - 11 . 9. IN ASSESSMENT YEAR 2010 - 11, THE FIRST GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ERRED IN CONFIRMING THE ADDITION ON ESTIMATE OF NET PROFIT @ 5% ON THE ENTIRE GROSS RECEIPTS. 10. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE WAS ASKED TO PRODUCE THE BOOKS OF ACCOUNT AND SUPPORTING DOCUMENTS FOR VERIFICATION FOR THE CLAIMS MADE IN THE ACCOUNT S . THERE WAS NO COMPLIANCE FROM THE ASSESSEE EVEN THOUGH THE ASSESSING OFFICER ALLOWED REPEATED OPPORTUNITIES TO THE ASSESSEE TO PRODUCE THE DETAILS. IN ABSENCE OF BOOKS OF ACCOUNT, THE ASSESSING OFFICER, REJECTED THE BOOK RESULTS OF THE ASSESSEE AND ESTI MATED THE NET PROFIT BY APPLYING RATE OF 5% TO THE GROSS RECEIPTS OF RS.1.46,26,945/ - AS REFLECTED IN 26AS STATEMENT INSTEAD OF RS.1,38,97,967/ - SHOWN BY THE ASSESSEE AND DETERMINED THE INCOME OF THE ASSESSEE AT RS.7,31,347/ - . 11. ON APPEAL, THE CIT(A) CON FIRMED THE ACTION OF THE ASSESSING OFFICER ON THE GROUND THAT BEFORE HER THE ASSESSEE CLAIMED THAT THE GROSS RECEIPTS WERE WRONGLY TAKEN BY THE ASSESSING OFFICER AND PRODUCED CERTAIN IN VOICES TO EXPLAIN THE DETAILS. THE ASSESSEE SUBMITTED THAT AN AMOUNT OF RS.4,29,857/ - WAS PAID TO HIM BY M/S. REXON STRIPS LTD., AND THESE DETAILS WERE 6 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 FORWARDED TO THE ASSESSING OFFICER FOR VERIFICATION AND FURTHER REPORT U/S.250(4) OF THE ACT. THE ASSESSING OFFICER REPORTED THAT THOUGH A QUESTIONNAIRE WAS PREPARED BY HIM AND ISSUED TO THE ASSESSEE REQUESTING COMPLIANCE ON OR BEFORE 24.8.2015, THE ASSESSEE PREFERRED TO REMAIN SILENT AND THERE WAS NO COMPLIANCE FROM HIM. THEREFORE, THE ASSESSING OFFICER COULD NOT DRAW ANY JUDICIOUS CONCLUSION ON THE ISSUES FORWARDED TO HIM FOR A REPORT U/S.250(4) OF THE ACT. 12. LD AUTHORISED REPRESENTATIVE OF THE ASSESSEE COULD NOT CONTROVERT THE OBSERVATION S AND FINDINGS OF THE CIT(A). IN ABSENCE OF THE SAME, I FIND NO GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF THE CIT( A), WHICH IS HEREBY CONFIRMED AND GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 13. THE SECOND ISSUE RELATES TO ADDITION OF RS.4,29,957/ - TWICE AS AGAINST TRANSPORT CONTRACT RECEIPTS AND COMMISSION RECEIPTS. 14. AS OBSERVED BY ME WHILE DECIDING THE FIRS T ISSUE IN THIS APPEAL THAT THE CIT(A) CALLED FOR A REMAND REPORT FROM THE ASSESSING OFFICER U/S.250(4) OF THE ACT AND THE ASSESSING OFFICER ISSUED QUESTIONNAIRE TO THE ASSESSEE FOR COMPLIANCE ON OR BEFORE 24.8.2015 BUT THE ASSESSEE DID NOT COMPLY WITH THE SAME AND, THEREFORE, THE ASSESSING OFFICER COULD NOT DRAW ANY JUDICIOUS CONCLUSION. HENCE, THE CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE. THE ABOVE OBSERVATIONS AND FINDINGS OF THE CITR(A) HAS REMAINED UNCONTROVERTED BEFORE ME DURING THE COURSE OF HEA RING. HENCE, 7 ITA NO.179/CTK/2015 ASSESSMENT YEAR : 2009 - 2010 ITA NO.148/CTK/2016 ASSESSMENT YEAR: 2010 - 2011 I CONFIRM THE ORDER OF THE CIT(A) AND DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 15. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED . ORDER PRO NOUNCED IN THE OPEN COURT ON 29 /03 /2017 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 2 9 /03 /2017 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : PRIYABRATA SAMALPROP. MAA BIRAJA TRANSPORT ASSOCIATION, BANISHREE BHAWAN, BANAPUR, BAIDYARAJPUR, JAJPUR 2. THE RESPONDENT: ITO, WARD - 1, PARADEEP 3. THE CIT(A): CUTTACK 4. PR.CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//