Ram Kumar Jain, Kalahandi V. ITO, Bhawanipatna

ITA 192/CTK/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7560 (ITAT-CUTTACK)
• Duration Of Justice: 4 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 24-11-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 16-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA
• Assessee Lawyers: P C SETHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.192/CTK/2012 ASSESSMENT YEAR : 2008 - 2009 RAM KUMAR JAIN, PO: KESINGA, DIST: KALAHANDI. VS. ITO, BHAWANIPATNA WARD, BHAWANIPATNA PAN/GIR NO. ABQPJ 4613 D (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P .C.SETHI , AR REVENUE BY : SHRI SUVENDU DUTTA , DR DATE OF HEARING : 24 /11 / 2016 DATE OF PRONOUNCEMENT : 24 /11 / 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGA INST THE ORDER OF CIT(A) - BERHA MPUR , DATED 7.12.2011 , FOR THE ASSESSMENT YEAR 2008 - 09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT, THE LEARNED CIT (A) HAS COMMITTED A SERIOUS ERROR IN NOT CONSIDERING THE EVIDENCE PRODUCED BEFORE HIM IN SUPPORT OF THE ARGUMENTS MADE BY THE APPELLANT BEFORE HIM. 2. THAT, THE LEARNED CIT (A) HAS COMMITTED A SERIOUS ERROR IN NOT QUASHING THE ASSESS MENT ORDER AS THE LEARNED ASSESSING OFFICER HAS ISSUED NOTICE U/S 143(2) OF THE INCOME - TAX ACT, 1961 (HEREINAFTER REFERRED AS 'THE ACT') WITHOUT PROCESSING THE RETURN 2 ITA NO.192/CTK/2012 ASSESSMENT YEAR :2008 - 2009 U/S 143(1) OF THE ACT AND FOR THAT MATTER THE ASSESSMENT BASED ON THE ISSUANCE OF NOTICE U/S 143(2) OF THE ACT IS ILLEGAL AND IN EXCESS OF JURISDICTION. 3. THAT, THE LEARNED CIT (A) HAS COMMITTED A SERIOUS ERROR IN NOT QUASHING THE ASSESSMENT ORDER AS THE LEARNED ASSESSING OFFICE R HAS ISSUED NOTICE U/S 143(2) OF THE ACT ON AN EXTRANEOUS REASO N WITHOUT HAVING ANY APPLICATION OF MIND AND NOT IN ACCORDANCE WITH THE LIMBS AS PER SECTION 143(2) OF THE ACT 4. THAT, THE LEARNED CIT (A) HAS COMMITTED A SERIOUS ERROR IN NOT DELETING THE ESTIMATION AS THE LEARNED ASSESSING OFFICER HAS ERRED BOTH IN LAW AND IN FACT BY REJECTING THE BOOKS OF ACCOUNT U/S 145(3) OF THE ACT WITHOUT HAVING ANY APPLICATION OF MIND. 5. THAT, THE LEARNED CIT (A) HAS ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ESTIMATION OF THE TOTAL INCOME ON PRESUMPTIVE BASIS @ 6% OF THE TOTAL TURNOVER WITHOUT HAVING ANY COMPARABLE CASE TO DO SO BASING UPON SURMISE AND CONJECTURE WHICH IS LIABLE TO BE ACCEPTED AS THE PROFIT DISCLOSED BY THE APPELLANT. 6. THAT, THE LEARNED CIT (A) HAS ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITIO N OF RS. 7,29,643/ - U/S 69 OF THE ACT AND SAME IS LIABLE TO BE DELETED. 7. THAT, THE LEARNED CIT (A) HAS ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION OF R. 7,29,643/ - , WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND SAME IS LIABLE TO BE DELET ED. 8. THAT, THE LEARNED CIT (A) HAS ERRED BOTH IN LAW AND IN FACT BY CONFIRMING THE ADDITION OF RS. 552/ - WHICH IS CONTRARY TO THE EVIDENCE ON RECORD AND SAME IS LIABLE TO BE DELETED. 3. AT THE TIME OF HEARING, LD A.R. OF THE ASSESSEE SUBMIT TED THAT H E IS NOT PRESSING G ROUND NOS.1,2,3,4,6,7& 8 OF APPEAL AND ALSO MADE AN ENDORSEMENT TO THIS EFFECT TO THE GROUNDS OF APPEAL APPENDED TO FORM NO.36 OF THE APPEAL MEMO FILED B EFORE THE TRIBUNAL. HENCE, THESE GROUND S ARE DISMISSED AS NOT PRESSED. 3 ITA NO.192/CTK/2012 ASSESSMENT YEAR :2008 - 2009 4. IN GROUND NO.4 OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE ESTIMATION OF THE TOTAL INCOME ON PRESUMPTIVE BASIS @ 6% OF THE TOTAL TURNOVER. 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE IS A TRANSPORT CONTRACTOR AND HAS SHOWN NET PROFIT AT 2.12% ON GROSS RECEIPT. THE ASSESSING OFFICER REQUIRED THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT AND ALSO TO PRODUCE THE EVIDENCE REGARDING TRANSPORTATION CHARGES OF RS.32,80,276/ - , LOADING AND LOADING CHARGES OF RS.73,54,537/ - , RA I LWAY CHARGES OF RS.2,18,690/ - AND OTHER EXPENSES INCLUDING SECURED AND UNSECURED LOANS. THE ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT AND SUPPORTING DOCUMENTS REGARDING THE EXPENSES CLAIMED IN THE RETURN OF INCOME. THEREFORE, THE ASSESSING OFFICER BY INVOKING THE PROVISIONS OF SECTION 145(3) OF THE ACT, REJECTED THE BOOK RESULTS AND ESTIMATED THE INCOME OF THE ASSESSEE ON PRESUMPTIVE BASIS @ 8% OF THE GROSS RECEIPT OF RS.1,32,42,938/ - , WHICH WORKED OUT T O RS.10,59,435/ - . THE ASSESSEE HAD DISCLOSED TOTAL INCOME OF RS.2,17,060/ - , HENCE THE DIFFERENTIAL AMOUNT OF RS.8,42,375/ - (RS.10,59,435 RS.2,17,060 / - ) WA S ADDED TO THE INCOME OF THE ASSESSEE. 6. ON APPEAL, LD CIT(A) DIRECTED THE ASSESSING OFFICER TO ES TIMATE THE PROFIT @ 6% OF GROSS RECEIPTS, WHICH COMES TO RS.7,94,576/ - BY GRANTING RELIEF OF RS.2,64 ,859/ - TO THE ASSESSEE. 4 ITA NO.192/CTK/2012 ASSESSMENT YEAR :2008 - 2009 5. BEFORE ME, LD AR OF THE ASSESSEE SUBMITTED THAT IN THE ASSESSMENT MADE U/S.143(3) FOR THE A.Y. 2006 - 07, THE PROFIT PERCENTAGE @ 2 .3% WAS ACCEPTED IN THE CASE OF THE ASSESSEE AND IN A.Y. 2005 - 06, THE PROFIT PERCENTAGE WAS ACCEPTED @ 1.4% IN THE ASSESSMENT U/S.143(3) OF THE ACT. HE SUBMITTED THAT THE ASSESSEE HAS IN THE PRESENT YEAR SHOWN THE NET PROFIT @ 2.12%, THEREFORE, CONSIDERIN G THE NATURE OF BUSINESS PRAYED TO ESTIMATE THE PROFIT PERCENTAGE AT 4%. 6. ON THE OTHER HAND, LD D.R. RELIED ON TH E ORDER OF THE LD CIT(A). . 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSING THE MATERIALS AVAILABLE ON RECORD, I FIND FORCE IN THE SUB MISSION OF THE LD A.R. OF THE ASSESSEE TO ESTIMATE NET PROFIT IN THE YEAR UNDER APPEAL @ 4% OF THE GROSS RECEIPTS FOLLOWING THE PAST YEARS ACCEPTED RATE OF NET PROFIT BY THE DEPARTMENT IN THE CASE OF THE ASSESSEE ITSELF. HENCE, I MODIFY THE ORDER OF THE L D CIT(A) AND DIRECT THE ASSESSING OFFICER TO ESTIMATE NET PROFIT @ 4% OF THE GROSS RECEIPTS OF THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FI LED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 24/ 11 /2016 IN THE PRESENCE OF PARTIES. SD/ - ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 24 /11 /2016 5 ITA NO.192/CTK/2012 ASSESSMENT YEAR :2008 - 2009 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT RAM KUMAR JAIN, PO: KESINGA, DIST: KALAHANDI. 2. THE RESPONDENT. ITO, BHAWANIPATNA 3. THE CIT(A) BERHAMPUR 4. CIT , SAMBALPUR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//