Ujjal Das , Burdwan V. ITO, Ward - 1(3), Burdwan , Burdwan

ITA 1766/KOL/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7931 (ITAT-KOLKATA)
• Duration Of Justice: 8 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-04-2019
• Assessment Year: 2010-2011
• Appeal Filed On: 16-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M ROY; PIYAL GUPTA SHRI SANKAR HALDER
• Keywords: Set aside
• Section: 144

Judgement Text

ITA NO. 1766/KOL/2018 ASSESSMENT YEAR: 2010-2011 UJJAL DAS 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A(SMC) BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ) I.T.A. NO. 1766/KOL/2018 ASSESSMENT YEAR: 2010-2011 UJJAL DAS,......................................... ..........................................APPELLANT C/O. PARTHA SARATHI GUPTA, 100, BANK LANE, P.O. KRISHNANAGAR, DIST. NADIA-741 101 [PAN: ACWPD 6083 G] -VS.- INCOME TAX OFFICER,................................ ...................................RESPONDENT WARD-1(3), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND, DIST. BURDWAN-713 101 APPEARANCES BY: SHRI K.M. ROY, FCA & SHRI PIYAL GUPTA, ADVOCATE, FO R THE APPELLANT SHRI SANKAR HALDER, JCIT, SR. D.R. , FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : APRIL 22, 2019 DATE OF PRONOUNCING THE ORDER : APRIL 22, 2019 O R D E R PER SHRI P.M. JAGTAP, VICE-PRESIDENT (KZ):- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN DATED 27.03.2018, WHEREBY HE CONFIRMED THE TRADING ADDITION MADE BY T HE ASSESSING OFFICER TO THE TOTAL INCOME OF THE ASSESSEE ON ESTIMATED BA SIS. 2. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUA L, WHO IS CARRYING ON THE BUSINESS UNDER THE NAME AND STYLE OF HIS PROPRI ETARY CONCERN M/S. ULEX COMPUTER. THE RETURN OF INCOME FOR THE YEAR UN DER CONSIDERATION WAS FILED BY HIM ON 14.10.2010 DECLARING TOTAL INCO ME OF RS.2,44,430/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND A NOTICE UNDER SECTION 143(2) WAS ISSUED BY THE ASSESSING OFFICER TO THE ASSESSEE ON 26.09.2011. THE SAID NOTICE AS WELL AS THE NOTICES ISSUED BY THE ASSESSING ITA NO. 1766/KOL/2018 ASSESSMENT YEAR: 2010-2011 UJJAL DAS 2 OFFICER SUBSEQUENTLY UNDER SECTION 142(1), HOWEVER, REMAINED UN- COMPLIED WITH BY THE ASSESSEE. THE ASSESSING OFFICE R, THEREFORE, WAS LEFT WITH NO OPTION BUT TO COMPLETE THE ASSESSMENT TO TH E BEST OF HIS JUDGMENT UNDER SECTION 144 ON THE BASIS OF MATERIAL AVAILABL E ON RECORD. IN THE ASSESSMENT SO COMPLETED VIDE AN ORDER DATED 12.03.2 013, THE NET PROFIT OF THE ASSESSEES BUSINESS OF RETAIL SALE WAS ESTIM ATED BY THE ASSESSING OFFICER AT RS.9,86,235/- BY APPLYING A NET PROFIT R ATE OF 5% AS STIPULATED IN SECTION 44AF ON THE GROSS RECEIPTS OF RS.1,97,24 ,693/- AND AFTER MAKING A FURTHER ADDITION OF RS.9,13,568/- ON ACCOU NT OF COMMISSION INCOME RECEIVED BY THE ASSESSEE FROM LENOVO, THE TO TAL INCOME OF THE ASSESSEE WAS DETERMINED BY THE ASSESSING OFFICER AT RS.18,99,803/-. 3. AGAINST THE ORDER PASSED BY THE ASSESSING OFFICE R UNDER SECTION 144, AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(APPEALS) AND KEEPING IN VIEW THE NON-COMPLIANCE ON THE PART OF THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS AS WELL AS DURING THE COURSE OF REMAND PROCEEDINGS, THE LD. CIT(APPEALS) DISMISS ED THE APPEAL OF THE ASSESSEE AND UPHELD THE ACTION OF THE ASSESSING OFF ICER IN ESTIMATING THE INCOME OF THE ASSESSEE AT RS.18,99,803/-. AGGRIEVED BY THE ORDER OF THE LD. CIT(APPEALS), THE ASSESSEE HAS PREFERRED THIS A PPEAL BEFORE THE TRIBUNAL. 4. I HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE, THE GROSS RECEIPTS OF THE ASSESSEE FO R THE YEAR UNDER CONSIDERATION BEING RS.1.97 CRORES, THE PROVISION O F SECTION 44AF IS NOT APPLICABLE AND THE NET PROFIT RATE OF 5% SPECIFIED IN THE SAID PROVISION CANNOT BE APPLIED TO ESTIMATE THE INCOME OF THE ASS ESSEE. HE HAS ALSO CONTENDED THAT KEEPING IN VIEW THE NET PROFIT RATE OF 0.71% AND 0.85% DECLARED BY THE ASSESSEE FOR A.Y. 2009-10 AND 2011- 12, A NET PROFIT RATE OF 1% TO 2% CAN BE APPLIED TO ESTIMATE THE INCOME O F THE ASSESSEE AND NO SEPARATE ADDITION CAN BE MADE ON ACCOUNT OF COMMISS ION INCOME AS THE ITA NO. 1766/KOL/2018 ASSESSMENT YEAR: 2010-2011 UJJAL DAS 3 SAME WAS FORMING PART OF THE TURNOVER OF THE SAID B USINESS. THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT THE INCOME OF THE ASSESSEE WAS ESTIMATED BY THE ASSESSING OFFICER BY APPLYING A NE T PROFIT RATE AS THE ASSESSEE FAILED TO PRODUCE THE BOOKS OF ACCOUNT MAI NTAINED BY HIM REGULARLY. HE HAS CONTENDED THAT IF THE BOOKS OF AC COUNT ARE REGULARLY MAINTAINED BY THE ASSESSEE AND THE SAME ARE ALSO DU LY AUDITED AS CLAIMED BY THE ASSESSEE, THE ASSESSEE MAY BE DIRECTED TO PR ODUCE THE SAME FOR VERIFICATION BEFORE THE ASSESSING OFFICER SO THAT T RUE AND CORRECT INCOME OF THE ASSESSEE CAN BE ASSESSED WITHOUT RESORTING T O ANY ESTIMATION. WE FIND MERIT IN THIS CONTENTION OF THE LD. D.R. AND S INCE THE LD. COUNSEL FOR THE ASSESSEE HAS ALSO AGREED TO PRODUCE THE BOOKS O F ACCOUNT AND OTHER DOCUMENTS, WHICH ARE NECESSARY FOR THE PURPOSE OF A SSESSMENT, I SET ASIDE THE IMPUGNED ORDER PASSED BY THE LD. CIT(APPEALS) A ND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTI ON TO MAKE THE ASSESSMENT AFRESH AFTER EXAMINING/VERIFYING THE BOO KS OF ACCOUNT AND OTHER RELEVANT DOCUMENTS CLAIMED TO BE REGULARLY MA INTAINED BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATE D AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON APRIL 22, 201 9. SD/- (P.M. JAGTAP) VICE-PRESIDENT (KZ) KOLKATA, THE 22 ND DAY OF APRIL, 2019 COPIES TO : (1) SHRI UJJAL DAS, C/O. PARTHA SARATHI GUPTA, 100, BANK LANE, P.O. KRISHNANAGAR, DIST. NADIA-741 101 (2) INCOME TAX OFFICER, WARD-1(3), BURDWAN, AAYAKAR BHAWAN, COURT COMPOUND,DIST. BURDWAN-713 10 1 (3) COMMISSIONER OF INCOME TAX (APPEALS), BURDWAN, ITA NO. 1766/KOL/2018 ASSESSMENT YEAR: 2010-2011 UJJAL DAS 4 (4) COMMISSIONER OF INCOME TAX- , (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.