Shri Satendra Kumar, Uttar Pradesh V. ACIT, Bulandshahr

ITA 1963/DEL/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 74398 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 18-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 04-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Assessee Lawyers: A K SRIVASTAVA
• Section: 44AD; 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI A.T. VARKEY, JUDICIAL MEMBER ITA NO. 1963/DEL/2013 ASSESSMENT YEAR: 2008-09 SH. SATENDRA SINGH, VILLAGE & POST BIROLI, ANOOP SHAHR, DISTT. BULANDSHAHR, U.P. AQNPS2519K VS. ACIT, INCOME TAX CIRCLE, BULANDSHAHR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. A.K. SRIVASTAVA, FCA RESPONDENT BY: SMT. RENUKA JAIN GUPTA, CIT(DR) O R D E R PER S.V. MEHROTRA, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF LD. CIT(A)S DATED 18/01/2013 FOR A.Y. 2008-09. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE, A CIV IL CONTRACTOR, FILED ITS RETURN OF INCOME ON 04/03/2009 DECLARING GROSS RECE IPT OF RS. 65,85,531/- AND NET PROFIT OF RS. 3,29,876/- BEING 5% OF THE GR OSS RECEIPT. 3. THE AO NOTICED THAT IN A.Y. 2006-07 NP RATE OF 8 % WAS SHOWN ON A TURNOVER OF RS. 15,50,381/- U/S 44AD. HOWEVER, FOR THE CURRENT ASSESSMENT YEAR, HE NOTICED THAT IN THE RETURN IT WAS CLAIMED THAT THE ACCOUNTS WERE AUDITED U/S 44AB AND DATE OF AUDIT WAS 29 TH SEPTEMBER, 2008. HE REQUIRED THE ASSESSEE TO FURNISH VARIOUS DETAILS VIDE NOTICE U/S 142(1) DATED 09/07/2010 INCLUDING COPY OF AUDIT REPORT. SINCE I N SPITE OF VARIOUS NOTICES ITA NO. 1963/D/2013 SH. SATENDRA SINGH 2 ASSESSEE FAILED TO PRODUCE BOOKS OF ACCOUNT, THE AO DETERMINED THE INCOME @ 8%. THE AO FURTHER NOTICED THAT ASSESSEE HAD MAD E PAYMENT OF RS. 5 LAKHS TO AVAS AND VIKAS PARISHAD I.E. RS. 2,50,000/ - ON 28/06/2007 AND RS. 2,50,000/- ON 09/01/2008 AND BEFORE ISSUE OF CHEQUE CASH OF RS. 2,52,000/- WAS DEPOSITED ON 25/06/2007. SINCE ASSESSEE FAILED TO EXPLAIN THE SOURCE OF THIS CASH, HE MADE AN ADDITION U/S 68. HE ALSO MADE AN ADDITION OF RS. 2,50,000/- SINCE THE PAYMENT TO AVAS & VIKAS PARISH AD WAS NOT SHOWN IN THE BALANCE SHEET AND NO DRAWING WAS SHOWN FROM THE CAP ITAL ACCOUNT. THUS, HE COMPLETED THE ASSESSMENT AT RS. 10,05,690/-. 4. LD. CIT(A) DISMISSED THE ASSESSEES APPEAL. 5. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSE SSEE IS A SMALL CIVIL CONTRACTOR BELONGING TO RURAL AREA AND, THEREFORE, WAS NOT AWARE ABOUT THE COMPLEXITIES OF INCOME TAX PROCEEDINGS. LD. COUNSE L SUBMITTED THAT IN A.Y. 2006-07 THE PROVISION OF SEC. 44AD WERE APPLIED AS ASSESSEE DID NOT MAINTAIN ANY BOOKS OF ACCOUNT. HOWEVER, FOR THE CU RRENT YEAR ASSESSEE HAS MAINTAINED BOOKS OF ACCOUNT WHICH WERE DULY AUDITED AND AUDIT REPORT OBTAINED. THEREFORE, THE PROVISIONS OF SEC. 44AD C OULD NOT BE INVOKED. 5.1 LD. COUNSEL SUBMITTED THAT VIDE NOTICE U/S 142( 1) DATED 22/12/2010 ASSESSEE WAS REQUIRED TO PRODUCE BOOKS OF ACCOUNT A S IS MENTIONED IN THE ASSESSMENT ORDER AND THE ASSESSMENT WAS COMPLETED O N 27/12/2010. THUS, PROVIDING ONLY 5 DAYS TO PRODUCE BOOKS OF ACC OUNT LD. COUNSEL FURTHER SUBMITTED THAT IN REGARD TO THE ADDITION OF RS. 5,0 2,000/- THE ASSESSEE HAS FILED AN APPLICATION UNDER RULE 10 DATED 18/03/2014 SEEKING PERMISSION TO ITA NO. 1963/D/2013 SH. SATENDRA SINGH 3 FILE AFFIDAVIT TO BRING ON RECORD THE CORRECT FACTS AND ALSO AN APPLICATION UNDER RULE 29 SEEKING PERMISSION TO FILE ADDITIONAL EVIDE NCE WHICH ARE PRIMARILY REVENUE RECORDS AND COPY OF SALE DEED. 5.2 LD. COUNSEL SUBMITTED THAT THE PLOT HAD BEEN PU RCHASED BY THE ASSESSEES WIFE SMT. NIMISHA AND A SALE DEED WAS EX ECUTED IN HER NAME ON 30/12/2008 BUT THE PAYMENTS WERE ROUTED THROUGH THE ASSESSEES BANK ACCOUNT AS SMT. NIMISHA, BEING A VILLAGER AND RESID ING IN A VILLAGE, DID NOT HAVE A BANK ACCOUNT AT THAT TIME. SINCE THIS FACTU AL ERROR HAS OCCURRED, THEREFORE, FILING OF SALE DEED ALONG WITH OTHER REV ENUE RECORD IS NECESSARY FOR COMING TO PROPER CONCLUSION. 6. LD. DR VEHEMENTLY OPPOSED THE ADMISSION OF THESE DOCUMENTS AND SUBMITTED THAT THE NOTICE U/S 143(2) AND 142(1) WIT H QUESTIONNAIRE WAS ISSUED ON 09/07/2010 WHICH NORMALLY REQUIRES THE AS SESSEE TO PRODUCE BOOKS OF ACCOUNT. THEREFORE, ASSESSEE WAS AFFORDED SUFFICIENT OPPORTUNITY TO PRODUCE BOOKS OF ACCOUNT. 6.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HA VE PERUSED THE RECORD OF THE CASE. 7. IT IS NOT DISPUTED THAT IN THE RETURN OF INCOME DATE OF AUDIT WAS NOTED AS 29 TH SEPTEMBER, 2008. THEREFORE, THERE WAS NO REASON FO R ASSESSEE TO WITHHOLD THE PRODUCTION OF BOOKS OF ACCOUNT. IN A. Y. 2006-07, THE ASSESSEES RECEIPTS WERE ONLY RS. 15,50,381/- WHICH INCREASED TO 58,88,389/- IN A.Y. 2007-08 AND RS. 65,85,531/- IN A.Y. 2008-09. THEREFORE, ASSESSEE WAS REQUIRED TO GET ITS ACCOUNT AUDITED FR OM A.Y. 2007-08 ITA NO. 1963/D/2013 SH. SATENDRA SINGH 4 ONWARDS AND HENCE MUST HAVE MAINTAINED BOOKS OF ACC OUNT. AS REGARDS ADDITION OF RS. 5,02,000/-, THE AO HAS OBSERVED THA T VIDE NOTICE U/S 142(1) DATED 22/12/2010, THE ASSESSEE WAS ASKED TO EXPLAIN SOURCE OF CASH AND HENCE ASSESSEE DID NOT GET SUFFICIENT OPPORTUNITY T O EXPLAIN THE DEPOSIT PARTICULARLY WHEN ASSESSMENT GOT COMPLETED ON 27/12 /2010. 8. UNDER SUCH CIRCUMSTANCES, WE ARE OF THE CONSIDER ED OPINION THAT IN ORDER TO IMPART SUBSTANTIAL JUSTICE TO ASSESSEE THE MATTER NEEDS TO BE RESTORED BACK TO THE FILE OF AO FOR PASSING THE ASS ESSMENT ORDER DENOVO. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) A ND RESTORE THE MATTER BACK TO THE FILE OF AO TO PASS THE ASSESSMENT ORDER DENO VO. 9. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 28/03/2014 SD/- SD/- (A.T. VARKEY) JUDICIAL MEMBER (S.V. MEHROTRA) ACCOUNTANT MEMBER DATED: 28/03/2014 *KAVITA COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, NEW DELHI. TRUE COPY BY ORDER ASSISTANT REGISTRAR