Kumaon Mandal Vikas Nigam Ltd, V. JCIT National Range,

ITA 1880/DEL/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 4228 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 15-04-2010
• Assessment Year: 2003-2004
• Appeal Filed On: 16-04-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BK GUPTA
• Assessee Lawyers: PAVAN KR NATH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : D NEW DELHI BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMEBR AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER I.T.A NO. 1880/DEL/07 ASSTT. YEAR 2003-04 KUMAON MANDAL VIKAS NIGAM LTD. OAK PARK CAMPUS, MALLITAL, NAINITAL. VS. JCIT, NAINITAL (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PAVAN KR. NATH, FCA RESPONDENT BY: SHRI B.K. GUPTA, SR. DR ORDER PER RAJPAL YADAV, JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE ORD ER OF LD. CIT(A) DATED 31.1.2007 PASSED FOR ASSTT. YEAR 2003- 04. THE GROUNDS OF APPEAL FILED BY THE ASSESSEE ARE NOT IN CONSONANCE TO RULE 8 OF ITAT RULES. THEY ARE DESCRIPTIVE AND ARGUMENTATIVE IN NA TURE. IN FACT THE GROUNDS ARE RUNNING INTO 8 PAGES WHICH CONTAINS ARG UMENTS IN SUPPORT OF THE GROUNDS. LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING ITA NO. 1880/DEL/07 ASSTT. YEAR 2003-04 2 POINTED OUT THAT ASSESSEE IS WHOLLY OWNED BY THE G OVT. OF UTTRAKHAND. IT HAS FILED ITS RETURN OF INCOME ON 30 TH MARCH 2004 DECLARING TOTAL INCOME OF RS. 1,73,23,550/-. THE ACCOUNTS OF ASSESSEE ARE REQUIRED TO BE AUDITED BY A CHARTERED ACCOUNTANT APPOINTED BY COMP TROLLER & AUDITOR GENERAL OF INDIA FROM YEAR TO YEAR. THE APPOINTMENT OF THE AUDITOR IS NORMALLY DELAYED BY THE OFFICE OF THE CAG. HENCE RE TURN WAS FILED ON ESTIMATE BASIS. THE COMPTROLLER & AUDITOR GENERAL O F INDIA HAS APPOINTED THE AUDITOR WHO HAS COMPLETED THE AUDIT O N 31 ST DECEMBER, 2009 FOR THIS ASSTT. YEAR. HE FURTHER CONTENDED THA T SIMILAR ISSUE CAME UP BEFORE THE TRIBUNAL IN ASSTT. YEAR 2001-02 AND 2002 -03. THE TRIBUNAL HAS SET ASIDE THE ORDERS OF REVENUE AUTHORITIES BEL OW AND RESTORE THE ISSUE TO THE FILE OF AO FOR FRESH ADJUDICATION. LD. COUNSEL FOR ASSESSEE PLACED ON RECORD COPIES OF THE TRIBUNAL ORDER IN IT A NO. 3898, 4011/DEL/ 2006 IN ASSTT. YEAR 2002-03 AND 997/DEL/2005 IN ASS TT. YEAR 2001-02. HE PREYED THAT THERE IS NO DISPARITY ON FACTS. LD. DR WAS UNABLE TO CONTROVERT THE CONTENTION OF LD. COUNSEL FOR THE AS SESSEE. 2. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. IN ASSTT. YEAR 2002-03 WHILE CONSIDERING THIS ISSUE WE NOTICED THAT ASSESSEE WAS CARRYING OUT MORE THAN 12 BUSINESS ACTIVITIES I.E. RUNNING OF PETROL PUMP, MANUFACTURI NG OF ROSIN & TURPENTINE, DISTRIBUTION OF GAS, CONSTRUCTION FOR G OVT. DEPARTMENTS, ITA NO. 1880/DEL/07 ASSTT. YEAR 2003-04 3 TOURIST REST HOUSE AND ROPE WAY ETC. THE ADDITIONS HAVE BEEN MADE BY THE AO UNDER EACH ACTIVITY. THE FINDING OF THE TRIB UNAL IN ASSTT. YEAR 2002-03 READ AS UNDER :- 8.WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AN D GONE THROUGH THE RECORDS CAREFULLY. NO DOUBT, THE ASSESS EE IS A COMPANY WHOLLY OWNED BY THE GOVT. OF UTTRAKHAND. IT S ACCOUNTS ARE TO BE AUDITED BY THE CA APPOINTED BY THE CONTRO LLER & AUDITOR GENERAL OF INDIA FROM YEAR TO YEAR. IT APPEARS THAT AUDITOR HAS NOT BEEN APPOINTED IN DUE TIME WHO COULD HAVE AUDITED T HE ACCOUNTS OF ASSESSEE AND, THEREFORE, IT HAS FILED ITS INCOME -TAX RETURN ON ESTIMATE BASIS. UP TO THE APPELLATE STAGE, ACCOUNTS UPTO ASSESSMENT YEAR 1999-00 HAVE BEEN AUDITED. THE APPE AL WAS DECIDED ON 14 TH SEPTEMBER, 2006. THOUGH NO ONE HAS APPEARED ON BEHALF OF THE ASSESSEE AND THE LEARNED DR IS UNA BLE TO STATE WHETHER ACCOUNTS HAVE BEEN AUDITED OR NOT BUT WE AR E HOPEFUL THAT BY NOW ACCOUNTS HAVE BEEN AUDITED FOR THIS ASSESSME NT YEAR. IN THE ABSENCE OF AUDITED ACCOUNTS, IT WAS DIFFICULT F OR THE ASSESSING OFFICER TO DETERMINE THE TRUE INCOME AND, THEREFORE , HE RESORTED TO ESTIMATE THE INCOME OF THE ASSESSEE. THE ASSESSEE H AS ALREADY SHOWN AN INCOME OF RS. 1,10,75,680/- AND HAD PAID A TAX OF RS. 39,47,592/-. THE ASSESSING OFFICER HAS DETERMINED T HE INCOME ON AN ESTIMATE BASIS AT RS. 1,91,36,910/-. THE ASSESSE E HAS MANY UNITS AND IT HAS A TOTAL TURNOVER OF RS. 9183.43 LA CS AS PER TENTATIVE PROFIT AND LOSS AND ACCOUNT. IN THIS BACKGROUND, WE DEEM IT APPROPRIATE THAT ASSESSING OFFICER SHOULD HAVE THE BENEFIT OF AUDIT REPORT BEFORE DETERMINING TAXABLE INCOME OF THE ASS ESSEE. THEREFORE, WE ALLOW THE FIRST GROUND OF APPEAL OF T HE ASSESSEE, SET ASIDE THE ORDER OF THE REVENUE AUTHORITIES BELOW AN D RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRES H DECISION. THE ASSESSEE IS DIRECTED TO PRODUCE THE AUDITED ACCOUNT S AND OTHER DETAILS IN SUPPORT OF ITS COMPUTATION OF INCOME. 9. AS FAR AS THE APPEAL OF THE REVENUE I S CONCERNED, IT IS IMPUGNING VARIOUS ADDITIONS DELETED BY THE LEARNED CIT(APPEALS). WE FIND THAT THE ASSESSING OFFICER HAS ESTIMATED TH E PROFIT IN DIFFERENT UNITS AND LEARNED CIT(APPEALS) DELETED TH OSE ADDITIONS AFTER TAKING INTO CONSIDERATION THE RESULTS SHOWN I N THE YEAR FOR WHICH THE AUDITED ACCOUNT ARE AVAILABLE. SINCE WE H AVE ALLOWED ITA NO. 1880/DEL/07 ASSTT. YEAR 2003-04 4 THE APPEAL OF ASSESSEE AND HOLD THAT INCOME OF THE ASSESSEE DESERVES TO BE REDETERMINED AFTER GETTING ACCOUNTS AUDITED. IN THAT SITUATION, ALL THESE ISSUES AGITATED BY THE REVENUE ARE TO BE LOOKED AFRESH AND, THEREFORE, FOR STATISTICAL PURPOSE THE APPEAL OF THE REVENUE IS ALSO ALLOWED. THE LEARNED ASSESSING OFFI CER SHALL HAVE A LOOK ON ALL ISSUES AFRESH. 3. THERE IS NO DISPARITY ON FACTS. RESPECTFULLY FOL LOWING THE ORDER OF THE ITAT IN ASSTT. YEAR 2002-03 EXTRACTED SUPRA WE ALLOW THE APPEAL OF ASSESSEE FOR STATISTICAL PURPOSE AND SET ASIDE ALL THE ISSUES TO THE FILE OF AO FOR READJUDICATION. THE ASSESSEE WILL BE AT LIBE RTY TO PRODUCE EVIDENCE IN SUPPORT OF ITS EXPLANATION AND THE AO S HALL AFFORD DUE OPPORTUNITY TO THE ASSESSEE. ORDER PRONOUNCED IN THE OPEN COURT ON 15.4.2010. [A.K. GARODIA] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER VEENA DATED 15.4.2010 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR, ITAT