Balbir Singh Yadav, Kanpur V. Inocme Tax Officer-3(1), Kanpur

ITA 153/LKW/2015

• Counselvise Citation: 15323714 RSA 2015
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HARISH GIDWANI
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.153/LKW/2015 ASSESSMENT YEAR:2010 - 2011 INCOME TAX OFFICER - 3(1), KANPUR. VS SHRI BALBIR SINGH YADAV, PROP. M/S YADAV CONSTRUCTION CO., 12/36/8, GWALTOLI, KANPUR. PAN:AACPY1372R (RESPONDENT) (APPELLANT) SHRI RAKESH GARG, ADVOCATE APPELLANT BY SHRI HARISH GIDWANI, D.R. RESPONDENT BY 23/04/2015 DATE OF HEARING 16 /06/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II, KANPUR DATED 12/11/2014 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 01. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN DISMISSING THE APPEAL EX - PARTE, HOLDING THAT INSPITE OF NOTICES BEING ISSUED, NONE HAS PUT AN APPEARANCE. 02. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT THE ASSESSEE IS A CIVIL CONTRACTOR, BOOKS OF ACCOUNT WERE MAINTAINED, ACCOUNTS DULY AUDITED IN TAR/FORM 3CD WAS SUBMITTED AND THERE BEING NO DEFECT IN THE BOOKS OF ACCOUNT, THE CIT(A) WAS NOT JUSTIFIED IN ENHANCING THE INCOME BY RS.45,00,000/ - . 03. BECAUSE THE TRADING RESULTS HA VING BEEN ACCEPTED BY THE ASSESSING OFFICER AND NO DEFECT IN THE SAME HAVING BEEN POINTED OUT, MORE OVER THE MATTER RELATING TO TRADING ACCOUNT WAS NOT BEFORE THE CIT(A), THE CIT(A) THERE WAS NO 2 OCCASION FOR THE CIT(A) TO ENHANCE THE INCOME BY A SUM OF RS. 45,00,000/ - . 04. BECAUSE IN ANY CASE AND IN ALL CIRCUMSTANCES OF THE CASE, THE ENHANCEMENT OF INCOME BY A SUM OF RS.45,00,000/ - IS WITHOUT ANY BASIS, THE ADDITION BE DELETED. 05. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT THE TOTAL TURNOVER OF THE ASSESSEE IS RS.1,20,52,280/ - AND THE TOTAL EXPENDITURE INCURRED BY THE ASSESSEE WITH RESPECT TO MATERIAL IS ITSELF RS.54,32,410/ - AND EXPENSES SUCH AS, LABOUR AND OTHER EXPENSES HAVE TO BE INCURRED, QUESTION OF HAVING A NET PROFIT OF RS.52,00,000/ - (INCOME RETURNED RS.3,00,000/ - , ADDITION MADE BY THE ASSESSING OFFICER RS.4,00,000/ - AND INCOME ENHANCED BY THE CIT(A) RS.45,00,000/ - ) MAKING THE INCOME ASSESSABLE AT 50% OF THE RECEIPTS IS NOT ONLY IMPRACTICAL BUT NOT POSSIBLE, THE ADDITION UPHELD AND THE ENHANC EMENT MADE BE DELETED. 06. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE FOLLOWING DISALLOWANCES MADE BY THE ASSESSING OFFICER: ( I ) RS.50,603/ - OUT OF DIESEL & PETROL EXPENSES. ( II ) RS.68,326/ - OUT OF VEHICLE RUNNING & MAINTENANCE EXPENSES. ( III ) RS .21,695/ - OUT OF DEPRECIATION. ( IV ) RS.14,635/ - OUT OF TRAVELLING EXPENSES. ( V ) RS.16,353/ - OUT OF CONVEYANCE EXPENSES. ( VI ) RS.4,578/ - OUT OF BUSINESS PROMOTION EXPENSES. ( VII ) RS.5,810/ - OUT OF TELEPHONE EXPENSES. 1,05,000/ - OUT OF COST OF MATERIAL AND LABOUR CHARGES. 07. BECAUSE ALL THE EXPENSES INCURRED WERE FOR THE PURPOSE OF BUSINESS, AND NO DEFECT OR DISCREPANCY WAS POINTED OUT IN THE BOOKS OF ACCOUNT, THE CIT(A) WAS NOT JUSTIFIED IN UPHOLDING THE DISALLOWANCES MADE BY THE ASSESSING OFFICER. THE DISALLOWANCE OF EXPENSE S IS ARBITRARY, BAD IN LAW BE DELETED. 08. BECAUSE IN ANY CASE AND IN ALL CIRCUMSTANCES OF THE CASE, THE APPELLATE PASSED BY THE CIT(A) IS BAD IN LAW AND BE QUASHED. 3 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE ORDER WAS PASSED BY CIT(A ) EX - PARTE QUA THE ASSESSEE. HE ALSO SUBMITTED THAT THE NOTICES ISSUED BY CIT(A) WERE NOT RECEIVED BY THE ASSESSEE AND THEREFORE, THE MATTER MAY BE RESTORED TO CIT(A) FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY TO THE ASSESSEE. 4. LEARNED D.R . OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IT IS NOTED BY CIT(A) IN PARA 2 OF HIS ORDER THAT TWO NOTICES WERE ISSUED ON 25/08/2014 AND 08/09/2014 FOR COMPLIANCE ON 03/09/2014 AND 16/0 9/2014 RESPECTIVELY. THEREAFTER, A LETTER DATED 18/09/2014 WAS ALSO WRITTEN TO THE ASSESSEE BUT IT IS NOT CLEAR AS TO WHETHER THE NOTICES WERE SERVED ON THE ASSESSEE OR NOT. CONSIDERING THESE FACTS, WE FEEL THAT IN THE INTEREST OF JUSTICE, THE MATTER SHO ULD GO TO CIT(A) FOR FRESH DECISION AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES. WE ORDER ACCORDINGLY. SINCE, WE ARE RESTORING THE MATTER BACK TO THE FILE OF CIT (A) FOR FRESH DECISION, WE DO NOT MAKE ANY COMMENT ON THE MERIT OF VARIOUS ISSUES RAISED BY THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 16 /06/2015 *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