M/s S.N. Pandey Construtction (India) Pvt. Ltd., Patna V. ACIT, Muzaffarpur

ITA 152/PAT/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93633 (ITAT-PATNA)
• Duration Of Justice: 2 year(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 14-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARCHANA SINHA SR S C; RRAMBABU GUPTA
• Assessee Lawyers: A K RASTOGI; JAGDI SH KR
• Section: 44AD; 143(3); 234B

Judgement Text

, PATNA IN THE INCOME TAX APPELLATE TRIBUNAL, PATNA BENCH, PATNA . . , , BEFORE SHRI A.D. JAIN (JM) AND SHRI SANJAY ARORA (AM) ./ I.T. A. NOS.14 3 &152 /PAT/201 3 ( / ASSESSMENT YEARS: 2009 - 10 & 2008 - 09 ) S.P. NO.07/PAT/2014 IN ITA NO.143/PAT/2013 & S.P. NO.02/PAT/2013 IN ITA NO.143/PAT/2013 ( / ASSESSMENT YEARS: 2009 - 10) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. C - 4, ABHIYAN TA NAGAR, ASHIANA ROAD, PATNA - 25 / VS. ACIT, CIRCLE - 2, MUZAFFARPUR. ./ ./ PAN/GIR NO. AAHC 8830 Q ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI A. K. RASTOGI & SHRI JAGDI SH KR., ADV. / RESPONDENT BY : SHRI.RRAMBABU GUPTA, SR. DR, & SMT. ARCHANA SINHA, S R.S.C. / DATE OF HEARING : 23.04. 2015 / DATE OF PRONOUNCEMENT : 29 .0 6 .2015 / O R D E R PER SANJAY ARORA, A. M.: THIS IS A SET OF TWO A PPEALS BY THE ASSESSEE , AGITATING THE DISPOSAL OF ITS APPEALS CONTESTING ITS ASSESSMENTS FOR TWO CONSECUTIVE YEARS, BEING ASSESSMENT YEAR S (A.Y S .) 2008 - 09 AND 2009 - 10 , U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) BY THE COMMISSIONER OF INCOME TAX (APPEALS) - I, PATNA (CIT(A) FOR SHORT) VIDE HIS 2 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, SEPARATE ORDERS DATED 03.04.2013 AND 04.03.2013 FOR THE SAID TWO YEARS RESPECTIVELY. THE ISSUES ARISING BEING COMMON, THE SAME WERE TAKEN UP TOGETHER FOR HEARING AND , ACCORDIN GLY, HEARD TOGETHER , AND ARE LIKEWISE BEING DISPOSED OF BY A COMMON, CONSOLIDATED ORDER. WE SHALL, HOWEVER, FOR THE SAKE OF CONVENIENCE, REFER TO THE FIGURES AS OBTAINING FOR A.Y. 2008 - 09, AS WAS THE CASE DURING THE COURSE OF HEARING OF THE APPEAL. 2. IT SHALL BE RELEVANT TO RECOUNT THE FACTS OF THE CASE. THE ASSESSEE IS A COMPANY ENGAGED IN THE CONSTRUCTION OF BRIDGES FOR N ORTH EASTERN RAILWAY, ONE OF THE DIVISIONS OF THE INDIAN RAILWAYS. THE ASSESSING OFFICER (A.O.) DURING THE COURSE OF THE ASSESSMENT PR OCEEDINGS REQUIRED DETAILS/INFORMATION ON VARIOUS FACTORS OF PRODUCTION AS WELL AS QUA THE EXPENSES CLAIMED , VIZ. ADDRESSES OF SUPPLIERS / SUNDRY CREDITORS , LABOUR CHARGES, EXPENSES, ETC. THE ASSESSEE WAS ALSO ASKED TO EXPLAIN THE ABSENCE OF CLOSING STOCK A S WELL AS WORK - IN - PROGRESS AS AT THE YEAR - END , AND TO JUSTIFY THE SAME WITH REFERENCE TO THE C OPY OF THE LAST RUNNING ACCOUNT (RA) BILL OF F .Y. 2007 - 08 AS WELL AS THE FIRST RA BILL FOR THE FOLLOWING YEAR . THOUGH THE ASSESSEE PRODUCED BOOKS OF ACCOUNT, NO TH E BILLS/VOUCHERS WERE PRODUCED TO SUBSTANTIATE THE EXPENSES CLAIMED PER THE SAID BOOKS. NO EXPLANATION WAS ALSO FURNISHED WITH REGARD TO T HE ABSENCE OF WIP AND OTHER GOODS AS A T THE YEAR - END. NO SITE - WISE BOOKS O F ACCOUNT WERE ALSO MAINTAINED. BEING, THERE FORE, NOT SATISFIED WITH THE CORRECTNESS AND COMPLETENESS OF THE ASSESSEES ACCOUNT S , SO THAT ITS INCOME COULD NOT BE DERIVED THERE - FROM, THE A.O. REJECTED THE BOOK RESULTS , INVOKING SECTION 145(3) OF THE ACT. THE ASSESSEES DISCLOSED PROFIT WAS , AT RS. 70 .46 LACS, OBSERVED TO WORK TO A RATIO OF 3 . 4 % ON A TURNOVER OF RS.2095.89 LACS, INCLUDING SUB - CONTRACT RECEIPT OF RS.1112.88 LACS. THE SAME WAS CLEARLY INADEQUATE , WITH SECTION 44AD ITSELF PROVID ING FOR A PRES UMPTIVE RATE OF 8%. THE SAME , THOUGH NOT APPLIC ABLE IN THE ASSESSEES CASE ; ITS TURNOVER BEING HIGHER THAN RS.40 LACS, WOULD THOUGH HAVE GUIDE LINE VALUE. IN FACT, THE ASSESSEES TURNOVER BEING HIGH , T HE SAME WOULD YIELD BENEFITS OF ECONOMY O F SCALE. HE, ACCORDINGLY, ASSESSED THE PROFIT @ 8% ON THE GROS S CONTRACT RECEIPT AND AT 4% ON THE SUB CONTRACT RECEIPT. IN APPEAL, THE ASSESSEE PLEADED FOR THE ADOPTION OF THE PROFIT RATE OF 5% AND 3% ON THE CONTRACT AND SUB - CONTRACT RECEIPT RESPECTIVELY , I.E., AS STOOD ASSESSED IN ITS 3 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, ASSESSMENT FOR A.Y. 2006 - 07. IN SUPPORT, IT WAS CLAIMED THAT 5% OF THE CONTRACT VALUE WAS RETAINED BY THE PRINCIPAL CONTRACTOR. THE SAME, HOWEVER, COULD NOT BE EVIDENCED, NOR COULD IT BE SHOWN THAT THE PROFIT DISCLOSED BY THE PRINCIPAL CONTRACTOR ON THE WORK SUB - CONTRACTED WAS AT 5%, I. E., APART FROM THE CONTRACT WORK ACTUALLY UNDERTAKEN BY HIM. THE SAID PLEA, THEREFORE, COULD NOT BE ACCEPTED. HE, ACCORDINGLY, ESTIMATED THE PROFIT RATIO ON THE SUB - CONTRACT AT 6% OF THE RELEVANT TURNOVER, WHILE RETAINING THE PROFIT RATIO ON THE CONTRACT R ECEIPT AT 8%, NOTING THE DECISIONS BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SHYAM BIHARI VS. CIT [2012] 345 IT R 283 (PATNA) AND IN THE CASE OF SHRI RAM JHANWAR LAL VS. ITO [2010] 321 ITR 400 (RAJ) , TO THE EFFECT THAT THE RAT E OF SECTION 44AD SHALL NOT APPLY. DE PRECIATION WAS, HOWEVER, DIRECTED TO BE ALLOWED SEPARATELY. AGGRIEVED, THE ASSESSEE IS IN APPEAL. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD, GIVING OUR CAREFUL CONSIDERATION TO THE MATTER. THE ASSESSEE DID NOT P RODUCE ANY BILLS AND VOUCHERS , NOR DOES IT MAINTAIN STOCK REGISTER OR SITE - WISE RECORD, BE THAT OF THE WORK UNDERTAKEN OR THE EXPENDITURE INCURRED , SO THAT NO VERIFICATION COULD BE UNDERTAKEN BY THE REVENUE. STOCK REGISTER S ARE AN IMPORTANT INGREDIENT , SHO WING THE MO VE MENT AND CONSUMPTION OF GOODS FOR DIFFERENT WORKS. THE ASSESSING AUTHORITY WAS UNDER THE CIRCUMSTANCES CONSTRAINED TO REJECT THE ASSESSEES BOOKS, AND ESTIMATE T H E INCOME TO THE B E S T OF HIS JUDGMENT U/S.145(3) OF THE ACT (REFER, INTER ALIA, CI T V. A. KRISHNASWAMI MUDALIAR [1969] 53 ITR 122; S.N. NAMASIVAYAM CHETTIAR V. CIT [1960] 38 ITR 579 (SC)) , WHICH HE D ID AT 8% & 4% FOR THE CONTRACT AND SUB - CONTRACT RECEIPT RESPECTIVELY , WITH THE FIRST APPELLATE AUTHORITY ENHANCING THE PROFIT ON THE SUB - CO NTRACT RECEIPT TO 6%. NO IMPROVEMENT IN ITS CASE HAS BEEN MADE BEFOR E THE FIRST APPELLATE AUTHORITY AS WELL AS BEFORE US. IN FACT, THE ASSESSEE DOES NOT DISPUTE THE REJECTION OF THE ACCOUNTS OR THE INVOCATION OF SECTION 145(3) BY THE A.O. PER SE , BUT THE R ATE OF PROFIT APPLIED IN ESTIMATING INCOME . THE ASSESSEES ACCOUNTS DISCLOSE A COMPOSITE RATE OF 3. 36 % OF TURNOVER, INCLUDING THE SUB - CONTRACT RECEIPT, WHICH IN FACT EXCEEDS THE CONTRACTUAL RECEIPT OF RS.983.02 LACS BY OVER 13%. A SIMPLE ARITHMETIC WOULD R EVEAL THE 4 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, DISCLOSED NET PROFIT R ATE ON THE SUB - CONTRAC T RECEIPT TO BE AT 1.01% , I.E., ASSUMING A DIFFERENTIAL OF 5% BETWEEN THE PROFIT RATE ON THE CONTRACT AND SUB - CONTRACT RECEIPT, BEING THE COMPONENT , AS CONTENDED, RETAINED BY THE PRINCIPAL CONTRACTOR. IT IS INCOMPREHENSIBLE THAT THE SUB - CONTRACTOR, WHO ACTUALLY UNDERTAKES THE WORK, S HARES A PROFIT MARGIN OF A MERE 1%, AS AGAINST 5 %, OR AT 4 00 % HIGHER , TO THE CONTRACTOR , WHO SUB - CONTRACTS THE WORK TO I T, SEEKING , IN EFFECT , AN ECONOMIC RENT FOR THE SAME , ENTAILING NO EXECUTION COSTS. WHY, THE ASSESSEE ITSELF ADMITS TO THE PROFIT RATE ON THE SUB - CONTRACT AT SIXTY PERCENT OF TH E TOTAL PROFIT ON THE CONTRACT , WHILE THE DISCLOSED FIGURE WORKS TO A MERE 1/6 (ABOUT 16%) . AGAIN, THE ASSESSEES ARGUMENT, IN JUSTI FICATION OF THE PROFIT RATE ON SUB - CONTRACT WORK AT 3%, OF THE PRINCIPAL CONTRACTOR RETAINING 5%, ITSELF SUPPORTS THE REVENUES CASE F OR ADOPTION OF THE IMPUGNED RATE OF 8% ON THE CONTRACT RECEIPT. WE FIND THE PROFIT RATE OF 8% ON THE CONTRACT RECEIPT (RS . 983.02 LACS /AY 2008 - 09 ), WHICH RATE ALONE IS UNDER CHALLENGE IN APPEAL FOR AY 2009 - 10 , TO BE JUSTIFIED UNDER THE GIVEN FACTS AND CIRCUMSTANCES , AND TOWARD WHICH WE MAY C ITE DECISION S , AS: KACHWALA GEMS V. JT. CIT [2007] 288 ITR 1 0 (SC); BRIJ BHUSHAN LAL PARDHUMAN KUMAR V. CIT [1978] 115 ITR 524 (SC); AND CST V. H. M. YUSUFALI H. M. ABDULA L I [1973] 90 ITR 271 (SC). IN FACT, WE CONSIDER IT TO REPRESENT A VERY REASONABLE ESTIMATE , WITHOUT , IN FACT, FACTORING IN THE BENEFITS OF THE ECONOM IES O F SCALE THAT A H IGH TURNOVER NORMALLY YIELDS IN TH E FORM OF BETTER TERMS OF TRADE , ON H IGH ER VOLUME OF PURCHASE S AS WELL AS LOW RATE OF FIXED/SEMI - FIXED OVERHEAD EXPENSES. C OMING TO THE RATE ON THE SUB - CONTRACT RECEIPT, WHICH STANDS IMPUGNED FOR AY 2008 - 09, THE ASSESSEE , AS AFORESTATED, HAS BROUGHT NOTHING ON RECORD TO SHOW THAT THE PROFIT RETAINED OR RETURNED BY THE PRINCIPAL CONTRACTOR IS AT 5% (OF THE GROSS RECEIPT). THE QUESTION THAT, THEREFORE, ARISES IS IN WHAT RATIO SHOULD ONE ALLOCATE THE PROFIT RATE, ESTIMATED A T 8% OF THE GROSS RECEIPT ON THE PRINCIPAL CONTRACT, I.E., BETWEEN THE CONTRACTOR AND THE SUB - CONTRACTOR. WHILE THE AO HAS ESTIMATED THE PROFIT RATE IN THE CASE O F THE SUB - CONTRACT RECEIPT AT 4%, THE LD. CIT(A) HAS SO DONE AT 6%. THE SAME WORK S TO 50% AND 75% RESPECTIVELY OF THE TOTAL PROFIT RATE OF 8% ON THE PRINCIPAL CONTRACT, ON WHICH RATE BOTH ARE IN AGREEMENT. THOUGH, AS NOTED ABOVE, AND EVEN AS THE ECONOMIC THEORY WOULD 5 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, SUGGEST, THE SUB - CONTRACTOR SHOULD GET A HIGHER SHARE IN - AS - MUCH AS HE UNDERTAKES ALMOST THE ENTIRE ECONOMIC ACTIVITY, THERE IS NOTHING ON RECORD, EXCEPT OF COURSE THE ASSESSEES SUBMISSIONS, TO INDICATE SO. THE ASSESSEE PLEADS FOR THE ADOPTION OF THE PROFIT RATE ON SUB - CONTRACT WORK A T 3% , AS AGAINST AT 5% O N THE CONTRACT, SO THAT THE SUB - CONTRACTOR , AS AFORE - NOTED, STANDS TO GET 60% OF THE TOTAL PROFIT ARISING ON THE CONTRACT, WHICH SHARE (60%) FALLS WITHIN THE RANGE 50% AND 75% , I.E., THE RATIO ESTIMATED BY THE TWO AUTHORITIES BELOW. WE , IN THE ABSENCE OF ANYTHING MORE AND ANYTHING CO NTRARY ON RECORD, ARE INCLINED TO ADOPT THE ASSESSEES VERSION, WHICH EVEN OTHERWISE FALLS WITHIN THE ESTIMATE RANGE BY THE REVENUE AUTHORITIES. WE, ACCORDINGLY, ESTIMATE THE SUB - CONTRACT PROFIT RATE AT 4.8 %, I.E., AT 60% OF THE PROFIT RATE OF 8% CONFIRME D BY US F O R THE PRINCIP A L CONTRACTOR . WE ARE CONSCIOUS THAT THE SAID RATE APPEARS O DD . HOWEVER, PROFITS IN BUSINESSES DO NOT ARISE TO CONF O RM TO THE NOTION OF RATES IN WHOLE FIGURES. WHAT, IN FACT, IS MORE RELEVANT AND OF SIGNIFICANCE IS AN OBJECT IVE BASIS UNDER - PINING THE SAID RATE. WE DECIDE ACCORDINGLY, AND THE ASSESSEE GETS PART RELIEF. WITH REGARD TO THE ABUNDANT CASE LAW, IN THE FORM OF THE DECISIONS BY THE TRIBUNAL, CITED BY THE APPELLANT, IN OUR VIEW, THE MATTER IS PURELY FACTUAL, YIELDING NO PRECE DENT OF ANY BINDING NATURE. THERE IS NO ORDER BY THE TRIBUNAL IN THE ASSESSEES OWN CASE. A PROFIT RATE, ASSESSED IN A PARTICULAR CASE, WHICH IS DEPENDENT ON A VARIETY OF FACTORS, IS IN FACT ONLY INDICATIVE OF THE PROFIT IN THE CASE OF THE SAME ASSESSEE FO R ANOTHER YEAR, NOT TO SPEAK OF THAT OF OTHER ASSESSEES ENGAGED IN THE WORK OF THE SAME OR SIMILAR NATURE. THE LD. CIT(A) HAS RIGHTLY CITED THE DECISIONS BY THE APEX COURT CLARIFYING THE LAW IN THE MATTER, VIZ. M. M. IPOH & ORS. VS. CIT [1968] 67 ITR 106 ( SC); NEW JAHANGIR VAKIL MILLS CO. LTD. VS. CIT [1963] 49 ITR 137 (SC); AND BHARAT SANCHAR NIGAM LTD. VS. UNION OF INDIA & ORS. [2006] 282 ITR 273 (SC). IN FACT, THE ASSESSEE BEING A CONTRACTOR FOR RAILWAYS, NO UNIFORM RATE OF PROFIT COULD BE SAID TO OBTAIN AS FAR AS SUPPLIES MADE TO THE RAILWAYS OR, NORTH EASTERN RAILWAYS FOR THAT MATTER, WHICH WOULD VARY ACROSS DIFFERENT SUPPLIES AND REPAIR WORKS, AS ALSO CONTRACTORS, EACH HAVING HIS OWN PROCUREMENT STRATEGY AND COST STRUCTURE, WHILE THE APPELLANT HAS FURN ISHED ORDERS BY THE TRIBUNAL FOR DIFFERENT CIVIL CONTRACTORS WORKING IN DIFFERENT AREAS. REFERENCE IN THIS REGARD MAY ALSO BE MADE TO 6 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, DECISIONS BY THE TRIBUNAL IN THE CASE OF MADHUP KUMAR SINGH VS. ACIT (IN I.T.A. NO.54 /PAT/2010 DATED 24.04.2015 AND SHAS HI BUILDERS INDIA PVT. LTD. (IN ITA NOS. 155, 163 & 156/PAT/2012 DATED 06.05.2015) . WE DECIDE ACCORDINGLY. THIS DECIDES ALL THE GROUNDS FOR A.YS. 2008 - 09 AND 2009 - 10; THE CHARGE OF INTEREST U/S. 234B BEING CONSEQUENTIAL, SAVE GROUNDS 4 & 5 FOR THE LATTER Y EAR. 4. THE ONLY SURVIVING ISSUE IS THAT RAISED PER GROUNDS 4 & 5 FOR AY 2009 - 10, WHICH IS QUA DISALLOWANCE U/S. 40(A)(IA) ON CONSULTANCY CHARGES, PAID AND ALLOWED BY THE ASSESSEE DURING THE RELEVANT YEAR TO M. P. RURAL ROAD DEVELOPMENT AUTHORITY, SATNA, AT RS. 8,85,457/ - . THE DISALLOWANCE STANDS EFFECTED IN VIEW OF THE ADMITTED FAILURE OF THE ASSESSEE TO DEDUCT T AX AT S OURCE (TDS). THE ASSESSEES EXPLANATION FOR THE SAME IS THE ABSENCE OF ANY OCCASION FOR IT TO DO SO, I.E., DEDUCT TAX AT SOURCE . C ITING A N AGREEMENT THEREWITH , IT WA S SUBMITTED THAT THE IMPUGNED SUM STOOD RECEIVED BY THE SAID PAYEE BY DEDUCTING THE SAME FROM THE PAYMENT DUE FROM IT TO THE ASSESSEE AGAINST BILLS RAISED BY IT THEREON. THE LAW DOES NOT ENVISAGE AN IMPOSSIBILITY. THE SAME , HOWE VER, DID NOT FIND FAVOUR WITH THE REVENUE. IT COULD NOT BE COUNTENANCED THAT THE ASSESSEE WAS NOT AWARE AS TO WHOM THE SAID CHARGES WERE PAID. THE SAME WOULD IN ANY CASE NOT OPERATE TO DISCHARGE THE ASSESSEE OF THE ONUS ON IT TO DEDUCT TAX AT SOURCE. THE D ISALLOWANCE BEING CONFIRMED THUS, THE ASSESSEE , AGGRIEVED , IS IN SECOND APPEAL. 5. WE HAVE HEARD THE PARTIES AND, PERUSED THE MATERIAL ON RECORD. WITHOUT DOUBT, THE ASSESSEE CANNOT BE CONSIDERED AS AND/OR CLAIM A S NOT AWARE OF THE IDENTITY OF THE PERSON TO WHOM THE PAYMENT IS BEING MADE. THE SAME IS BEING OSTENSIBLY PAID ONLY IN LIEU OF THE SERVICES AVAILED . RATHER, IT IS IN FACT A CONTRA DICTION IN - AS - MUCH AS THE ASSESSEE STAT ES THE SAID PAYMENT TO BE IN PURSUANCE TO AN AGREEMENT. THE COPY OF THE SAID AG REEMENT IS NOT ON RECORD. EVEN ASSUMING THE SAID AGREEMENT, ONE CANNOT CONTRACTUALLY DEFEAT OR CIRCUMVENT THE LAW. A N Y SUCH CONTRACT , WHERE SO, IS , AT LEAST TO THAT EXTENT, LEGALLY INVALID. 7 ITA NO. 143 &152/PAT/2013 (A.Y S. 2009 - 10 & 2008 - 09) S. N. PANDEY CONSTRUCTION (INDIA) PVT. LTD. VS. ACIT, AT THE SAME TIME, WE ARE ACUTELY C ONSCIOUS THAT THE NON OBSTANTE PROVISION OF SECTION 40(A)(IA), CONSTITUTIONALLY VALID, INTRODUCE S , IN E FFECT , A TIMING DIFFERENCE, DEFERRING THE DEDUCTION QUA THE SUMS SPECIFIED THEREIN TO THE YEAR OF DEDUCTION OF TAX AT SOURCE AND ITS DEPOSIT TO THE CREDIT OF THE CENTRAL GOVERNMENT. I F, THEREFORE, THE PAYEE I.E., M.P. RURAL ROAD DEVELOPMENT AUTHORITY, HAS OFFERED THE IMPUGNED SUM/S AS ITS INCOME, OFFERING THE SAME TO TAX, AND PAID TAX THEREON, THE ASSESSEE CANNOT BE HELD LIABLE FOR TAX ON THE SAID AMOUNT, I.E., BY INCLUDING THE SAME AS A PART OF ITS TOTAL INCOME FOR THE YEAR. THE ONUS TO ESTABLISH SO, THOUGH, IN VIEW OF THE ADMITTED DEFAULT , WOULD BE SQUARELY ON THE ASSESSEE . THE MATTER IS ACCORDINGLY RESTORED TO THE FILE OF THE AO FOR THE PURPOSE, ALLOWING THE ASSESSEE A REASONABLE OPP ORTUNITY TO STATE ITS CASE. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE APPEAL FOR AY 2008 - 09 IS PARTLY ALLOWED, WHILE THAT FOR AY 2009 - 10 IS PARTLY ALLOWED AND PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 29 , 201 5 SD/ - SD/ - ( A. D. JAIN ) (S ANJAY ARORA) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 29 . 0 6 .20 1 5 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) - 1, PATNA 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI