Prabir Das, Santirbazar V. Income Tax Officer, Ward-Udaipur, Udaipur

ITA 196/GTY/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9009 (ITAT-GUWAHATI)
• Duration Of Justice: 1 year(s) 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2016-2017
• Appeal Filed On: 09-05-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 44AD; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC GAUHATI BEFORE SHRI S ANJAY GARG , JUDICIAL MEMBER . / ITA NO. 1 96 / GAU/2019 ASSESSMENT YEAR: 20 1 6 - 17 SHRI P RABIR DAS BETAGA, SANTIR BAZAR, SANTIRBAZAR , TRIPURA, 799 144(INDIA). PAN: A SIPD0327P / V/S . I.T.O O/O THE INCOME TAX OFFICER, WARD - UDAIPUR, AAYKAR BHAWAN, MANTRIBARI ROAD, AGARTALA, TRIPURA, 799 001 (INDIA) / APPELLANT .. / RESPONDENT HEARING THROUGH VIDEO CONFERENCING / BY APPELLANT NONE APPEARED / BY RESPONDENT SHRI SUBHRAJYOTI BHATTACHARYA, ADDL.CIT, DR / DATE OF HEARING 16 - 03 - 20 2 1 / DATE OF PRONOUNCEMENT 16 - 03 - 20 2 1 / O R D E R TH E PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER DATED 08 - 03 - 2019 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) , SHILLONG [HEREINAFTER REFERRED TO AS CIT(A)] . 2. NONE HAS PUT IN APPEARANCE ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE, HENCE, I PROCEED TO DISPOSE OF THIS CASE EX PARTE QUA THE ASSESSEE AFTER HEARING THE LD.DR . 3. THE ASSESSEE IN THIS APPEAL HAS CONTESTED THE VALIDITY OF CONFIRMATION OF ADDITION OF RS. 17,72,312/ - MADE BY THE LEARNED ASSESSING OFFICER ( IN SHORT, THE LD. AO) BY TAKING NET PROFIT (NP) RATE AT 11.29 PERCENT ON UNDISCLOSED SALES DECLARED BY T HE ASSESS EE AS AGAINST CLAIMED BY THE ASSESSEE @ 8% . ITA NO. 196 /GAU/2019 A.Y. 20 1 6 - 17 PRABIR DAS PAGE 2 4 . A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE THROUGHOUT HAS CONTESTED THE APPLICABILITY OF NET PROFIT (NP) RATE AT 11.29% PLEADING THAT ACTUAL N.P IS VERY LOW. THE ASSESSEE BEFORE THE LOWER AUTHORITIES PLEADED THAT THAT ASSESSEES N.P RATE SHOULD BE TAKEN AT 8% U/S. 44AD OF THE INCOME - TAX ACT, 1961 ( IN SHORT, THE ACT) BEING A CASE WHERE NO BOOKS OF ACCOU NT ARE REQUIRED TO BE MAINTAINED . H OWEVER, THE ASSESSEE COULD NOT CONVINCE THE LOWER AUTHORITIES IN THIS REGARD. ANOTHER SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES HAD BEEN THAT THE LD. AO HAS TAKEN THE N.P RATE AS DECLARED BY THE A SSESSEE ONLY ON THE MEAGER SALES SHOWN BY THE ASSESSEE, WHICH THE DEPARTMENT HAS NOT ACCEPTED AS THE ACTUAL TURNOVER /SALE WAS MUCH MORE. THAT, IN FACT, THE ACCOUNTANT OF THE ASSESSEE NEITHER HAD TAKEN INTO ACCOUNT THE ACTUAL SALES MADE BY THE ASSESS EE NOR THE ACTUAL N.P RATE OF THE ASSESSEE IN THE RETURN OF INCOME . THE INCOME I N THE RETURN OF INCOME WAS OFFERED ONLY ON ESTIMATION BASIS BY TAKING THE SMALL AMOUNT OF SALES. THE ASSESSING OFFICER HAS NOT CONSIDERED THE PLEA OF THE ASSESSEE THAT WITH THE INCREASE OF TURNOVER , GENERALLY THE N.P RATE IS DECREASED. THE PLEA OF THE ASSESSEE HAS BEEN THAT THOUGH THE FIGURE OF THE SALES SHOWN BY THE ASSESSEE HAS BEEN DISCARDED BY THE LD. AO, HOWEVER, HE ADOPTED THE N.P RATE AT 11.29% SHOWN BY THE ASSESSEE ON AN ESTIMATION BASIS TO ARRIVE AT A PARTICULAR AMOUNT OF PROFIT WITHOUT CONSIDERING THE ACTUAL ACCOUNTS. IT WAS PLEADED THAT T HE LD. AO SHOULD HAVE ESTIMATED THE N.P RATE AFTER TAKING INTO CONSIDERATION SOME COMPARABLE CASES. 5 . AFTER HE ARING THE LD. DR, I FIND MERIT IN THE CON T ENTION OF THE ASSESSEE MADE BEFORE THE AUTHORITIES BELOW. BEFORE THIS TRIBUNAL BY WAY OF GROUNDS OF APPEAL , THE PLEA OF THE ASSESSEE HAS BEEN THAT THE INCOME IN THE RETURN OF INCOME WAS OFFERED ADMITTEDLY ON ESTI MATION BASIS. NEITHER THE ACTUAL SALES W ERE TAKEN NOR ACTUAL N.P RATE WAS TAKEN BY THE ASSESSEE. THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS FAIRLY ADMITTED THAT THE TURNOVER/SALES SHOWN BY THE ASSESSEE WAS NOT AS PER ON RECORD AND HE OFFERED UNDISCLOSED SALES FOR TAXATION BEFORE THE LD. AO. CONSIDERING THE PLEA OF THE ASSESSEE THAT ACTUAL N.P RATE IS LOW AND THERE WAS NO BASIS OR OTHER EVIDENCE/COMPARABLE CASES BEFORE THE LD. AO TO ARRIVE THE N.P RATE AT 11.29% , I N MY VIEW, THE N.P RATE OF THE ITA NO. 196 /GAU/2019 A.Y. 20 1 6 - 17 PRABIR DAS PAGE 3 ASSESSEE SHOULD HAVE BEEN DETERMINED BY THE LD. AO TAKING INTO CONSIDERATION THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE . AFTER CONSIDERING THE SUBMISSIONS ON RECORD BY THE ASSESSEE AND AFTER HEARING THE LD. DR , I AM OF THE VIEW THE EST IMATION OF PROFIT IN THIS CASE AT 9% WILL BE JUSTIFIED. IT IS ACCORDINGLY ORDERED THAT THE LD. AO WILL TAKE/APPLY THE N.P RATE @ 9% AS AGAINST TAKEN BY HIM AT 11.29%. ACCORDINGLY THE LD. AO WILL DETERMINE THE INCOME OF THE ASSESSEE. ASSESSEE GETS PARTIAL RELIEF. IN VIEW OF THE ABOVE, THE APPEAL OF THE ASSESSEE STANDS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT AT THE TIME OF HEARING ON TUESDAY , 1 6 TH MARCH , 2021 . SD/ - (S ANJAY GAR G ) JUDICIAL MEM BER - 16 - 03 - 2021 /KOLKATA * *PP/SR.PS / COPY OF ORDER FORWARDED TO: - 1. /APPELLANT /ASSESSEE: SHRI P RABIR DAS, BETAGA, SANTIR BAZAR, SANTIRBAZAR, TRIPURA, 799 144(INDIA) . 2. /RESPONDENT - I.T.O O/O THE INCOME TAX OFFICER, WARD - UDAIPUR, AGARTALA, TRIPURA, 799 001 (INDIA) 3. / CONCERNED CIT 4. - / CIT (A) 5. , / DR, ITAT, GUWAHATI 6. / GUARD FILE. BY ORDER/ , /TRUE COPY/ SENIOR PRIVATE SECRETARY