Smt. Bandana Maikap, Kolkata V. ACIT, Circle-2, Midnapore, Paschim Medinipur

ITA 1971/KOL/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 4078 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 1 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 07-12-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 22-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PROVASH ROY JCITSRDR
• Assessee Lawyers: MIRAJ D. SHAH
• Keywords: Assessment record
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI A.T.VARKEY, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 1971 / KOL / 2014 ASSESSMENT YEAR :2010-11 SMT. BANDANA MAIKAP C/O D. J. SHAH & CO. KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-700 020 [ PAN NO. AGQPM 7954 B ] V/S . ACIT, CIRCLE-2, SAHOO BHAVAN, KHUDIRAM NAGAR, OPP. ZILLA PARISHAD, MIDNAPORE /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI MIRAJ D SHAH, AR /BY RESPONDENT SHRI PROVASH ROY, JCIT-SR-DR /DATE OF HEARING 07-12-2016 /DATE OF PRONOUNCEMENT 21-12-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE ASSESSEE IS ARISING OUT OF ORDE R OF COMMISSIONER OF INCOME TAX (APPEALS)-XXXVI, KOLKATA IN APPEAL NO201 /CIT(A)- XXXVI/KOL/ACIT, CIRCLE-2/MID/2012-13 DATED 27.08.20 14. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-2, MIDNAPORE U/S 143(3) OF T HE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORD ER DATED 05.12.2008 FOR ASSESSMENT YEAR 2010-11. SHRI MIRAJ D. SHAH, LD. AUTHORIZED REPRESENTATIVE A PPEARED ON BEHALF OF ASSESSEE AND SHRI PRAVASH ROY, LD. DEPARTMENTAL REP RESENTATIVE APPEARED ON BEHALF OF REVENUE. ITA NO.1971/KOL/2014 A.Y.2010-11 SMT. BANDANA MAIKAP VS. ACIT, CIR-2 MID PAGE 2 2. ISSUE NO. 1 AND 2 ARE GENERAL IN NATURE AND DO N OT REQUIRE ANY ADJUDICATION. 3. NEXT ISSUE RAISED BY ASSESSEE IN THIS APPEAL IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER BY ESTIMA TING PROFIT @ 8% ON THE TURNOVER OF THE ASSESSEE. 4. FACTS IN BRIEF ARE THAT ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN BUSINESS OF TRANSPORTATION OF FLY ASH. D URING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT ASSESSEE I S NOT MAINTAINING HER BOOKS OF ACCOUNT AND IN PREVIOUS ASSESSMENT YEAR 20 09-10 THE INCOME WAS ESTIMATED @ 8% WHICH WAS NOT CHALLENGED IN APPELLAT E STAGE. ACCORDINGLY AO ESTIMATED THE INCOME OF THE ASSESSEE @ 8% ON GROSS RECEIPT. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A) WHEREAS IT WAS SUBMITTED THAT IN PREVIOUS ASSESSMENT YEAR 2009 -10 THE INCOME WAS DISCLOSED @ 6.68% OF THE TURNOVER AND WHICH WAS DET ERMINED BY AO U/S. 144 OF THE ACT @ 8% BUT THE DIFFERENCE BETWEEN INCOME O FFERED BY ASSESSEE AND INCOME DETERMINED BY AO WAS NOT SIGNIFICANT ENOUGH. THEREFORE, THE ASSESSEE DID NOT PREFER ANY APPEAL BEFORE LD. CIT(A ). HOWEVER, LD. CIT(A) DISREGARDED THE CLAIM OF ASSESSEE BY CONFIRMING THE ORDER OF AO BY OBSERVING AS UNDER:- 4.1 APPELLANTS SUBMISSION AND FACTS AVAILABLE ON RECORD IS CAREFULLY CONSIDERED. ASSESSMENT RECORD WAS CALLED FOR AND MA INTAINED, AS ADMITTED BY A/R OF THE ASSESSEE IN THE ORDER SHEET BEFORE THE AO. EVEN DURING APPELLATE PROCEEDING, THE A/.R OF THE APPELL ANT STATED THAT HE HAD NO OBJECTION AGAINST ESTIMATION OF PROFIT, BUT WAS OF THE OPINION, THAT ESTIMATION AT 8% WAS ON HIGHER SIDE. 4.2 ASSESSEE IS A CONTRACTOR WHO EVACUATES FLY ASH FROM THE SITE OF KOLAGHAT THERMAL POWER PLANT. FOR SUCH EVACUATION, ASSESSEE USES SEVERAL EXCAVATORS OF HER OWN. IT ALSO CLAIM SEVERA L EXPENSES, WHICH THE AO COULD NOT VERIFY DUE TO NON PRODUCTION OF BO OKS OF ACCOUNT AND OTHER SUPPORTING DOCUMENTS. IT MAY BE NOTED THAT AP PELLANTS PROFIT WAS DETERMINED AT 8% IN THE IMMEDIATELY PRECEDING YEAR, AGAINST WHICH AS NOTED BY AO IN THE ORDER SHEET, ASSESSEE HAS NOT PR EFERRED ANY APPEAL. IN VIEW OF THE ABOVE, AO HAD CORRECTLY DETERMINED P ROFIT AT 8% AS DONE IN THE IMMEDIATE PRECEDING YEAR, AS THE ASSESSEE HA S NOT BEEN ABLE TO PRODUCE BOOKS OF ACCOUNT OR OTHER EVIDENCE IN SUPPO RT OF VARIOUS EXPENSE CLAIMED. ITA NO.1971/KOL/2014 A.Y.2010-11 SMT. BANDANA MAIKAP VS. ACIT, CIR-2 MID PAGE 3 BEING AGGRIEVED BY THIS, ASSESSEE HAS COME UP AN AP PEAL BEFORE US. 6. BEFORE US LD AR FOR THE ASSESSEE REITERATED SAME SUBMISSIONS AS MADE BEFORE LD. CIT(A) AND HE STATED THAT THE ISSUE MAY BE DECIDED ON MERIT. ON THE OTHER HAND, LD. DR VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. 7. WE HAVE GONE THROUGH THE SUBMISSIONS MADE BY BOT H THE SIDES AND ORDER OF THE LOWER AUTHORITIES AS WELL AS OTHER MAT ERIALS AVAILABLE ON RECORD. IN THE CASE ON HAND THE AO HAS DETERMINED THE NET PROF IT AT THE RATE OF 8% OF THE GROSS RECEIPTS ON 2 GROUNDS. FIRSTLY THE ASSESSEE D ID NOT MAINTAIN ANY BOOKS OF ACCOUNTS AND SECONDLY IN THE IMMEDIATE PRECEDING ASSESSMENT YEAR 2009- 10 THE NET PROFIT WAS ESTIMATED AT THE RATE OF 8% O F GROSS RECEIPTS UNDER SECTION 144 OF THE ACT WHICH WAS NOT DISPUTED BY TH E ASSESSEE. HOWEVER THE LEARNED AR BEFORE US CHALLENGED THE RATE OF ESTIMAT ION OF NET PROFIT THAT IS 8% ON GROSS RECEIPTS AS DISCUSSED ABOVE. NOW THE ISSUE BEFORE US ARISES FOR ADJUDICATION SO AS TO WHETHER THE NET PROFIT DETERM INED AND THE RATE OF 8% ON THE BASIS OF LAST YEAR ASSESSMENT IS CORRECT IN THE AFORESAID FACTS AND CIRCUMSTANCES. FROM THE AFORESAID CHART GIVEN BY TH E LEARNED AR SHOWING THE AMOUNT OF PROFIT DECLARED BY THE ASSESSEE AND THE P ROFIT DETERMINED BY THE REVENUE, WE FIND THAT EACH YEAR THE PROFIT WAS ENHA NCED BY THE REVENUE IN TERMS OF PERCENTAGE AS DETAILED UNDER : S.NO. AY % PROFIT DECLARED % PROFIT ESTIMATED NE T INCREASE BY ASSESSEE BY REVENUE 1. 2008-09 2.84% 5% 2.16% 2. 2009-10 6.69% 8% 1.31% FROM THE ABOVE TABLE, WE FIND THAT IN THE LAST TWO ASSESSMENT YEARS THE NET PROFIT WAS INCREASED BY THE REVENUE IN THE ASSESSME NT YEAR 2008-09 AND 2009-10 BY 2.16% AND 1.31% RESPECTIVELY. FOR THE YE AR UNDER CONSIDERATION THE ASSESSEE DECLARED THE PROFIT @ 4.39% AND THE SAME WAS ENHANCED TO 8% THEREBY IT WAS INCREASED BY 3.61% OF THE GROSS RECE IPT. THUS THIS YEAR THE INCREASE WAS 3.61% WHICH IS IN EXCESS IN COMPARISON TO THE EARLIER TWO YEARS ITA NO.1971/KOL/2014 A.Y.2010-11 SMT. BANDANA MAIKAP VS. ACIT, CIR-2 MID PAGE 4 AS DISCUSSED ABOVE WHICH APPEARS NOT REASONABLE. IN VIEW OF ABOVE WE ARE INCLINED TO MAINTAIN THE CONSISTENCY ON THE BASIS O F LAST TWO ASSESSMENT YEARS AND ACCORDINGLY ESTIMATING THE PROFIT BY ENHANCING 2.11% OF THE PROFIT DECLARED BY THE ASSESSEE. THUS, THE NET PROFIT @ 6. 5% OF THE GROSS TURNOVER OF THE ASSESSEE IS REASONABLY ESTIMATED. THE AO IS DIR ECTED ACCORDINGLY. HENCE, THE GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLO WED IN TERMS OF ABOVE. 8. IN THE RESULT, ASSESSEES APPEAL STANDS PARTLY ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT 21/ 12/2016 SD/- SD/- ( !') ( !') (A.T.VARKEY) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP, SR.P.S $!% &- 21 / 12 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-SMT. BANDANA MAIKAP, C/O. D.J. SHAH & CO . KALYAN BHAVAN, 2, ELGIN ROAD, KOLKATA-20 2. /RESPONDENT-ACIT, CIR-2, SAHOO BHAVAN, KHUDIRAM NAA GAR, OPP ZILLA PARISHAD MIDNAPORE 3. %.%/0 1 1 2 / CONCERNED CIT KOLKATA 4. 1 1 2- / CIT (A) KOLKATA 5. 567 /0, 1 /0 , / DR, ITAT, KOLKATA 6. 7:; <= / GUARD FILE. BY ORDER/ 1! , /TRUE COPY/ / % 1 /0 ,