Chatterjee Engineering Construction Pvt.Ltd., Baroda V. The Dy.CIT.,Circle-1(1), Baroda

ITA 1573/AHD/2011

• Counselvise Citation: 157320514 RSA 2011
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-09-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: Y C SURTI
• Keywords: Opportunity of being heard; Initiation of penalty proceedings
• Section: 234B

Judgement Text

ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AH MEDABAD. (BEFORE SHRI BHAVNESH SAINI & SHRI A. MOHAN ALA NKAMONY) I.T.A. NO. 1573/AHD/2011 (ASSESSMENT YEAR 2005-06) CHATTERJEE ENGINEERING CONSTRUCTION PVT. LTD., 301 CRYSTAL FINS, 19 KINTIKUNJ SOCIETY, NR. JEEVANBHARTI SCHOOL, KARELIBAUG,BARODA. (APPELLANT) VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(1), AAYKAR BHAVAN, NR.RACE COURSE CIRCLE, BARODA. (RESPONDENT) PAN: AAACC 8072D APPELLANT BY : NONE RESPONDENT BY : SHRI Y. C.SURTI. DATE OF HEARING : 16-9-2011 DATE OF PRONOUNCEMENT : 27-9-2011 ( (( ( )/ )/)/ )/ ORDER PER: SHRI A. MOHAN ALANKAMONY,A.M. THIS APPEAL IS FILED BY THE ASSESSEE AGGRIEVED BY THE ORDER OF THE LD. CIT (A)-I BARODA IN APPEAL NO CAB-I/156/07-08 DATED 27-1-2011 FOR THE ASSESSMENT YEAR 2005-06. 2. THE ASSESSEE HAS RAISED 7 GROUNDS IN ITS APPEAL WHEREIN GROUND NO.1 AND 7 ARE GENERAL IN NATURE AND DO NOT SURVIVE FOR ADJUDICATION. GROUND NO.2 TO 6 ARE REPRODUCED HEREIN-BELOW FOR ADJUDICAT ION. ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 2 3. ON THE DATE OF THE HEARING NONE APPEARED ON BEHA LF OF THE ASSESSEE, HOWEVER AN ADJOURNMENT APPLICATION WAS FILED ALONG WITH A REQUEST THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE CIT (A) W ITH A DIRECTION TO DECIDE THE MATTER ON MERIT. 4. ON PERUSING THE ORDER OF THE LD. CIT (A) IT WAS EVIDENT THAT THE LD. CIT (A) HAD GRANTED FIVE OPPORTUNITIES. HOWEVER, TH E ASSESSEE HAS FAILED TO CO-OPERATE WITH THE PROCEEDINGS WHICH COMPELLED THE LD. CIT (A) TO PASS THE ORDER EX-PARTE. FROM THE CONDUCT OF THE ASSESSE E/ LD. A.R. BEFORE US ALSO IT APPEARS THAT THE ASSESSEE IS SHYING AWAY FROM TH E PROCEEDINGS, HENCE, WE ARE FORCED TO PROCEED WITH THE PROCEEDINGS EX-PARTE . 5. GROUND NO.2:- THE LD. CIT (A) ERRED IN FACT AND IN LAW IN PASSING THE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HE ARD . THE LD. CIT (A) HAD GRANTED FIVE OPPORTUNITIES WHER EIN IN THE LAST TWO OPPORTUNITIES HE HAD SPECIFICALLY CONVEYED TO T HE ASSESSEE THAT IT WOULD BE THE LAST AND FINAL OPPORTUNITY, YET THE APPELLAN T AND THE LD. A.R. FAILED TO CO-OPERATE WITH THE PROCEEDINGS. IN THESE CIRCUMSTA NCES IT COULD NOT BE SAID THAT THE LD. CIT (A) HAD ERRED IN FACT AND IN LAW I N PASSING THE ORDER WITHOUT GIVING PROPER OPPORTUNITY OF BEING HEARD. THEREFORE , THIS GROUND OF THE ASSESSEE IS DISMISSED. 6. GROUND NO.3:- THE LD. CIT (A) ERRED IN FACTS AND IN LAW IN CONFIRMING THE ACTION OF AO IN REJECTING BOOKS OF A CCOUNT OF THE APPELLANT WITHOUT POINTING OUT ANY MISTAKE SPECIFIC TO THE AP PELLANTS CASE AND RELYING ON EXTRANEOUS AND IRRELEVANT MATERIAL AND IN COMPLE TE DISREGARD TO THE FACTS ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 3 OF THE APPELLANTS CASE. THE LD. CIT (A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF THE AO IN ESTIMATING NET P ROFIT AND THEREBY MAKING AN ADDITION OF RS.4,09,921/-. (A) THE LD. A.O. REJECTED THE BOOKS OF THE APPELLAN T AND ESTIMATED THE GROSS PROFIT OF THE ASSESSEE BY MAKING AN ADDITION OF RS. 4,09,921/- DUE TO THE FOLLOWING REASONS: (1) DURING THE CURRENT YEAR THERE WAS A FALL IN G.P . AS COMPARED TO EARLIER YEAR. THE APPELLANT COULD NOT SUBSTANTIATE WITH SUFFICIENT EVIDENCE FOR THE FALL IN G.P. (2) THE APPELLANT COULD NOT ESTABLISH THE IDENTITY OF THE 10 WORKERS FOR WHOM PAYMENT HAVE BEEN MADE BY SELF MADE VOUCHE RS BUT SIGNATURES NOT OBTAINED. (3) THE APPELLANT HAS FAILED TO MAINTAIN DAY TO DAY CONSUMPTION DETAILS. (4) THE VOUCHERS FOR EXPENDITURE IN RESPECT OF LABO UR AND WAGES PAYMENTS WERE NOT DULY SIGNED BY THE RECIPIENT IN M ANY INSTANCES. (5) THE ASSESSEE COULD NOT MAKE AVAILABLE DAY TO DA Y SITE-WISE CLAIM OF EXPENDITURES AND VOUCHERS. MOST OF THE CLA IM FOR THE EXPENDITURE APPEARED TO BE FICTITIOUS. (B) THE LD CIT (A) CONFIRMED THE ORDER OF THE LD. A .O. BECAUSE THE APPELLANT HAD NOT PRODUCED ANY EVIDENCE TO ESTABLI SH THE GENUINENESS OF THE EXPENDITURE INCURRED BY IT INSPITE OF THE LD. AOS SPECIFIC QUERY ON THIS REGARD. ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 4 (C) THE APPELLANT HAS NOT PRODUCED ANY EVIDENCE BEF ORE US ALSO TO ESTABLISH THE GENUINENESS OF ITS CLAIM. WE HAVE PER USED THE PAPER BOOK SUBMITTED BY THE APPELLANT CONTAINING 48 PAGES. HOW EVER, NOTHING COMES OUT OF IT TO DISPROVE THE APPREHENSIONS OF THE LD. AO AND THE LD. CIT (A), THEREFORE, WE HAVE NO HESITATION TO CONFIRM THE ORD ER OF LD. AO AND LD. CIT (A). 8. GROUND NO.4:- THE LD. CIT (A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN DISALLOWING EMPLOYEES CONTRIBUT ION TO PF AMOUNTING TO RS.4,08,183/- U/S. 36(1)(VA) DESPITE OF THE FACT TH AT THE PAYMENTS WERE MADE WITHIN THE PERIOD ALLOWED UNDER THE RESPECTIVE ACT. (A) THE LD. A.O. NOTICED FROM THE TAX AUDIT REPORT SUBMITTED BY THE ASSESSEE THAT THE ASSESSEE HAS NOT PAID RS.4,08,183 /- ON ACCOUNT OF EMPLOYEES CONTRIBUTION OF P.F. FOR THE MONTH OF AP RIL,2004 TOMARCH,2005 (EXCEPT FOR THE MONTH OF OCTOBER,2004) BEFORE THE D UE DATE AS MENTIONED U/S. 36(1)(VA) OF THE ACT. THEREFORE, THE LD. A.O. ADDED THE SAME TO THE TOTAL INCOME OF THE ASSESSEE. (B) BEFORE THE LD. CIT (A) IT WAS CONTENDED BY THE ASSESSEE THAT THE PAYMENTS WERE MADE WITHIN THE TIME LIMIT PRESCRIBED UNDER THE ACT. HOWEVER, SINCE NO DETAILS WERE FURNISHED BEFORE THE LD. CIT (A), THE LD. CIT (A) CONFIRMED THE ADDITION MADE BY THE A.O. (C) BEFORE US, THE APPELLANT THOUGH HAVE NOT APPEAR ED, HAVE MADE A PRAYER TO REMIT BACK THE MATTER TO THE LD. CIT (A). IT IS APPARENT THAT THE ASSESSEE HAD BEEN LETHARGIC IN HIS APPROACH IN THE PROCEEDINGS BEFORE THE ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 5 REVENUE AND BEFORE US. HOWEVER, IN THE INTEREST OF JUSTICE WE REMIT THIS ISSUE BACK TO THE FILE OF THE LD. CIT (A) TO CONSID ER THE ISSUE DE-NOVO. THE ASSESSEE IS DIRECTED TO CO-OPERATE IN THE PROCEEDIN GS AND FURNISH THE RELEVANT MATERIALS BEFORE THE LD. CIT (A) PROMPTLY. 10. GROUND NO.5:- THE LD. CIT (A) ERRED IN FACT AN D IN LAW IN CONFIRMING THE ACTION OF AO IN INITIATING PENALTY PROCEEDINGS U/S. 271(1)(C). AS FAR AS INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271 (1) (C ) IS CONCERNED WE DO NOT FIND ANY REASON TO INTERFERE W ITH THE ORDER OF THE REVENUE. THEREFORE, THE ORDER OF THE LD. CIT (A) I S HEREBY CONFIRMED ON THIS REGARD. 11. GROUND NO.6:- THE LD. CIT (A) ERRED IN FACT AND IN LAW IN CONFIRMING THE ACTION OF AO IN CHARGING INTEREST U/S.234B OF T HE INCOME TAX ACT, 1961. WITH REGARD TO THE GROUND RAISED BY THE ASSESSEE A GAINST LEVY OF INTEREST U/S. 234B OF THE ACT, WE HAVE TO HOLD IT I N FAVOUR OF THE REVENUE SINCE IT IS CONSEQUENTIAL IN NATURE. 14. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 27 09 - 2011. SD/- SD/- (BHAVNESH SAINI) (A . MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. ITA NO.1573/AHD/2 011 ASSESSMENT YEAR 2005-06 6 COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS)-I, BARODA 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 19- 9 -2011 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 20 /9 / 2011 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S 26- 9 -2011. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 27 - 9-2011 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 27 - 9 -2011 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 27- 9-2011. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..