SHRI SHAMBHU DAYAL MEENA, JAIPUR V. INCOME TAX OFFICER, WARD-2-1, JAIPUR

ITA 154/JPR/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 3790 (ITAT-JAIPUR)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 11-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANMOHAN KANDPAL ACITOSDDR DHK
• Assessee Lawyers: RAM SWAROOP JAJOO
• Keywords: Rejection of books of accounts; Salary income; TDS
• Section: 142(1); 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH JESK LH-'KEKZ] YS[KK LNL; DS LE{K BEFORE : SHRI RAMESH C.SHARMA, ACCOUNTA NT MEMBER VK;DJ VIHY LA-@ ITA NO. 154 & 757/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 & 2010-11 SHRI SHAMBHU DAYAL MEENA D-27, ANAJ MANDI, CHAND POLE JAIPUR CUKE VS. THE ITO WARD- 2 (1), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO .: ABNPM 8824 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI RAMSWAROOP JAJOO, ADVOCATE JKTLO DH VKSJ LS@ REVENUE BY: SHRI MANMOHAN KANDPAL, ACIT(OSD)-DR LQUOKBZ DH RKJH[K@ DATE OF HEARING : 30/10/2019 ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 31 /10/2019 VKNS'K@ ORDER PER RAMESH C. SHARMA, AM THESE ARE THE APPEALS FILED BY THE ASSESSEE AGAINS T SEPARATE ORDERS OF THE LD. CIT(A)-1, JAIPUR DATED 10-01-2019 AND 10-04-2019 FOR THE ASSESSMENT YEARS 2009-10 AND 2010-11, IN THE MATTER OF ORDER PASSED U/S 147 /143(3) AND 147 OF THE I.T. ACT, 1961 RESPECTI VELY. 2.1 THE COMMON GRIEVANCE OF THE ASSESSEE IN BOTH TH E YEARS RELATE TO THE ADDITION MADE BY THE AO BY ESTIMATING THE INCOM E OF 8% ON THE PAYMENTS MADE TO THE TRANSPORTERS ON ACCOUNT OF FRE IGHT HANDLING CHARGES. ITA NO.154/JP/2019 SHRI SHAMBHU DAYAL MEENA VS ITO, WA RD-2(1), JAIPUR 2 2.2 THE FACTS IN BRIEF ARE THAT IN THE ASSESSMENT YEAR 2009-10 THE AO RECEIVED INFORMATION THAT THE ASSESSEE HAS RECEIVED PAYMENTS OF RS. 1,30,31,654/- ON CONTRACT WORK FROM SHRI KAILASH CH AND GUPTA, SURAJPOLE MANDI, JAIPUR. THE PAYER DEDUCTED TDS AMOUNTING TO RS. 2,68,455/-. IN RESPONSE TO NOTICE ISSUED U/S 148 AND 142(1) OF THE ACT, THE ASSESSEE FILED RETURN OF INCOME ON 23-09-2016B DECLARING TOTAL INC OME AT RS. 92,580/- (RS. 60,000/- FROM SALARY AND RS. 32,580- FROM I NCOME FROM OTHER SOURCES). IN THIS RETURN OF INCOME, NEITHER THE REC EIPT FROM HANDLING CHARGES NOR THE TDS MADE AT RS. 2,68,455/- WAS CLAI MED. THE ASSESSEE FILED ANOTHER RETURN OF INCOME ON 01-10-2016, STILL REFERRING THE SAME AS ORIGINAL RETURN OF INCOME DECLARING TOTAL INCOME AT RS. 3,61,035/-. IN THIS RETURN OF INCOME, BESIDES THE INCOME FROM SALARY AN D OTHER SOURCES, THE ASSESSEE ALSO SHOWED TDS AMOUNT OF RS. 2,68,455/- A S INCOME FROM TRUCK OWNERS AND DRIVERS. THE AO OBSERVED THAT THE ASSESS EE HAS RECEIPTS FROM CONTRACT WORK AMOUNTING TO RS. 1,30,31,654/- AND NO CORRESPONDING INCOME HAS BEEN REFLECTED IN THE RETURN OF INCOME F ILED ON 01-10-2016. AFTER GIVING THE OPPORTUNITY, THE AO WORKED OUT THE PROFIT @ 8% ON CONTRACT RECEIPTS OF RS. 1,30,31,654/- AT RS. 10,42 ,529/-. AFTER REJECTION OF BOOKS OF ACCOUNTS U/S 145(3) OF THE ACT, THE AO MAD E THE TRADING ADDITION OF RS. 10,42,529/-. ITA NO.154/JP/2019 SHRI SHAMBHU DAYAL MEENA VS ITO, WA RD-2(1), JAIPUR 3 2.3 BY IMPUGNED ORDER, THE LD. CIT(A) CONFIRMED THE ACTION OF THE AO AGAINST WHICH THE ASSESSEE IS IN FURTHER APPEAL BEF ORE THE TRIBUNAL. 2.4 I HAVE CONSIDERED THE RIVAL CONTENTIONS AND REC ORDS PERUSED. I FOUND FROM THE RECORD THAT THE PRIMARY DOCUMENT ON THE BASIS OF WHICH THE ASSESSMENT WAS REOPENED IS FORM NO. 26AS OF THE ASSESSEE . THE ABOVE FORM REFLECTS THAT A TOTAL AMOUNT OF RS. 1,30 ,31,654/- HAS BEEN PAID TO THE ASSESSEE SHRI SHAMBHU DAYAL MEENA BY SHRI KA ILASH CHAND GUPTA. THE TDS OF RS. 2,68,455/- HAS BEEN MADE BY SHRI KAI LASH CHAND GUPTA ON THE ABOVE PAYMENT. I FOUND THAT THE ASSESSEE WA S HANDLING THE WORK ON BEHALF OF SHRI KAILASH CHAND GUPTA FOR MAKING PA YMENTS TO THE TRANSPORTERS WHICH CANNOT BE TREATED AS A WORK CONT RACT SO AS TO ESTIMATE THE PROFIT AT 8% ON SUCH RECEIPTS. IT WAS NOT THE C IVIL CONTRACT BUT THE ASSESSEE WAS ONLY RENDERING THE SERVICES WITH REGA RD TO MAKING THE PAYMENTS TO THE TRUCK DRIVERS / TRUCK OWNERS. KEEPI NG IN VIEW THE NATURE OF SERVICES RENDERED BY THE ASSESSEE, I DIRECT THE AO TO COMPUTE THE INCOME AT 2% OF THE AMOUNT SO RECEIVED IN PLACE OF 8% SO COMPUTED BY THE AO TREATING IT AS A CIVIL CONTRACT WORK. I DIRE CT ACCORDINGLY. 3.1 THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 IS PARI MATERIA TO THE RE ASON GIVEN IN THE ABOVE MENTIONED ASSESSMENT YEAR 200-10. I DIRECT TH E AO TO COMPUTE ITA NO.154/JP/2019 SHRI SHAMBHU DAYAL MEENA VS ITO, WA RD-2(1), JAIPUR 4 THE INCOME AT 2% OF THE AMOUNT SO RECEIVED. THUS BO TH THE APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. 4.0 IN THE RESULT, THE APPEALS OF THE ASSESSEE ARE ALLOWED IN PART. ORDER PRONOUNCED IN THE OPEN COURT ON 31/10/20 19. SD/- JESK LH 'KEKZ (RAMESH C. SHARMA) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/10/ 2019 *MISHRA VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI SHAMBHU DAYAL MEENA, JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD- 2(1), JAIPUR 3. VK;DJ VK;QDRVIHY ) @ CIT(A), 4. VK;DJ VK;QDR@ CIT, 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (ITA NO.154/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR