M/s. Jammula Venkataramana & Sons, Ganjam V. ITO, Ward-1, Berhampur

ITA 164/CTK/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 5383 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: KANISKA RATH
• Keywords: Non compliance
• Section: 144

Judgement Text

1 ITA NO.164 /CTK/2017 ASSESSMENT YEAR : 2011 - 2012 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.164 /CTK/2017 ASSESSMENT YEAR : 2011 - 2012 M/S. JAMMULA VENTARAMAN & SONS, AT: BIG BAZAR, BERHAMPUR, GANJAM VS. ITO, WARD - 1, BERHAMPUR PAN/GIR NO. AAEFJ 2810 P (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI KANISKA RATH, AR REV ENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 04 /10 / 2017 DATE OF PRONOUNCEMENT : 04 /10 / 2017 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 12.1.2017 FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: 1. FOR THAT IT IS ARBITRARY AND UNLAWFUL TO MAKE A BEST JUDGMENT ASSESSMENT U/S.144 OF I.T. ACT; AND FURTHER IT IS BASELESS TO TREAT THE APPELLANT'S STATUS AS ASSOCIATION OF PERSONS U/S. 185(5) OF I.T. ACT. 2. FOR THAT THE APPELLANT MADE ALL POSSIBLE AND EFFECTIVE COMPLIANCE TO NOTICE DT.06.11.2013 ISSUED U/S.142(1) OF I.T. ACT EVEN WHEN REGULAR BOOKS OF ACCOUNT WAS NOT MAINTAINED BY THE APPELLANT . THEREFORE THE FINDING OF APPELLANT'S NON COMPLIANCE TO NOTI CE U/S.142(1) IS WITHOUT ANY BASIS. 2 ITA NO.164 /CTK/2017 ASSESSMENT YEAR : 2011 - 2012 3. FOR CHAT WITHOUT INDICATING/ OBSERVING ANY SUCH SPECIFIC FAILURE THE FINDING OF APPELLANT'S NON COMPLIANCE TO ANY SUCH PROVISION OF SEC - 144 OF IT ACT IS WITHOUT ANY BASIS. ACCORDINGLY THE ADOPTION OF PROVISION OF SEC - 185(5) OF ACT AS WELL AS DETERMINATION OF APPELLANT'S STATUS, DISALLOWANCE SALARY AND INTEREST OF RS.1,20,000.00 AND RS.2,36,856.00 RESPECTIVELY IS ARBITRARY AND THE SAME SHOULD HAVE BEEN ALLOWED U/S.44AD(2) OF I.T. ACT. 4. FOR THAT THE APPELLANT NEVER INDICATED THE OPENING STOCK VALUE AT SI NO.6 OF HIS I.T. RETURN (A.Y.2011 = 12) TO BE AT NIL. THE APPELLANT IN ABSENCE OF REGULAR BOOKS OF ACCOUNT FILED HIS RETURN ON PRESUMPTIVE BASIS U/S.44AD OF I.T. ACT LEAVING NO SCOPE TO INDICATE THE OPENING STO CK IN THE I.T. RETURN, ACCORDINGLY IT IS ARBITRARY TO ENHANCE THE APPELLANT'S GROSS SALES, AND IT IS ARBITRARY TO ADD THE OPENING STOCK (WITH PROFIT THEREON @ 8.1%) WITH THE APPELLANT'S SALES TORN OVER. THEREFORE THE DETERMINATION OF APPELLANT'S GROSS SAL E AT RS.60,52,199.00 IS ARBITRARY & THE SAME SHOULD HAVE BEEN AT RS.45,32,226.00 AS CONSIDERED BY THE SALES TAX AUTHORITY. 3. AT THE OUTSET, LD A.R. OF THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER HAS MADE ASSESSMENT U/S.144 OF THE ACT AS THE ASSESS EE FAILED TO FILE NECESSARY DETAILS AND DOCUMENTS CALLED FOR. THEREFORE, HE MADE ASSESSMENT U/S.144 OF THE ACT DISREGARDING THE STATUS OF THE ASSESSEE AS PARTNERSHIP FIRM AND MAKING THE ASSESSMENT ON THE ASSESSEE AS AN AOP. WHILE DOING SO, HE HAS MADE ADDITION OF RS.4,84 ,176/ - TO THE RETURNED INCOME OF RS.3,6,578/ - BY THE ASSESSEE AS EXTRA PROFIT RELATING TO UNDISCLOSED OPENING STOCK AND MADE A HIGH PITCH ADDITION OF RS.8,46,754/ - , WHICH HAS BEEN CONFIRMED IN APPEAL BY THE CIT(A). HE SUBMI TTED THAT ONE MORE OPPORTUNITY SHOULD BE GRANTED TO THE ASSESSEE TO REPRESENT ITS CASE BEFORE THE ASSESSING OFFICER AND HE UNDERTAKES TO 3 ITA NO.164 /CTK/2017 ASSESSMENT YEAR : 2011 - 2012 APPEAR BEFORE THE ASSESSING OFFICER SUO - MOTO AND FILE ALL NECESSARY DETAILS AND DOCUMENTS FOR COMPLETING THE ASSESSMENT . 4. LD D.R. HAD NO OBJECTION TO THE ABOVE SUBMISSION OF LD A.R. OF THE ASSESSEE. 5. IN VIEW OF ABOVE, I SET ASIDE THE ORDERS OF LOWER AUTHORITIES AND RESTORE THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER FOR DOING ASSESSMENT DENOVO AFTER ALLOWING R EASONABLE AND PROPER OPPORTUNITY TO THE ASSESSEE. 6. THE ASSESSEE IS DIRECTED TO APPEAR BEFORE THE ASSESSING OFFICER WITHIN 30 DAYS FROM THE DATE OF THIS ORDER FOR FIXING THE DATE OF HEARING AND RENDER FULL CO - OPERATION TO THE ASSESSING OFFICER BY FILING ALL THE DETAILS AS AND WHEN CALLED UPON TO DO SO. THE ASSESSING OFFICER IS DIRECTED TO COMPLETE THE ASSESSMENT EXPEDITIOUSLY. WITH THESE DIRECTIONS, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. . ORDER PRONOUN CED ON 4 /10 /2017. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 4 /10 /2017 B.K.PARIDA, SPS 4 ITA NO.164 /CTK/2017 ASSESSMENT YEAR : 2011 - 2012 COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT: M/S. JAMMULA VENTARAMAN & SONS, AT: BIG BAZAR, BERHAMPUR, GANJAM 2. THE RESPONDENT. ITO, WARD - 1, BERHAMPUR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//