Jaya Mangala Construction, Koraput V. ITO, Jeypore

ITA 21/CTK/2014

• Counselvise Citation: 2122114 RSA 2014
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 20-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: P K MISHRA
• Keywords: Depreciation

Judgement Text

1 I.T.A.NO.21 & 22/CTK/2014 ASSESSMENT YEAR: 2005-06 & 2006-07 , CUTTACK IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( )BEFORE . . , , HONBLE SHRI P.K.BANSAL, ACCOUNTANT MEMBER. /AND . . , HONBLE SHRI D.T.GARASIA, JUDICIAL MEMBER / I.T.A.NOS.21 & 22/CTK/2014 / ASSESSMENT YEARS: 2005-06 & 2006-07 M./S JAYA MANGALA CONSTRUCTION, BEJAPUT, DAMANJODI, DIST: KORAPUT PA NO.AAEFJ 8318 C - - - VERSUS- ITO, WARD - 1, JEYPORE BHUBANESWAR. ( /APPELLANT ) ( /RESPONDENT) / FOR THE APPELLANT: /SHRI P.K.MISHRA /FOR THE RESPONDENT: /SHRI S.C.MOHANTY / DATE OF HEARING: 1.5.2014 / DATE OF PRONOUNCEMENT: 2 7 . 0 6 . 2014 / ORDER PER BENCH BOTH THESE APPEALS FILED BY THE ASSESSEE ARE DIRECTED AGAINST COMMON ORDERS DATED BOTH 25.11.2003 OF LD CIT(A), BERHAMPUR FOR THE ASSESSMENT YEARS 2005-06 & 2006-07, RESPECTIVELY. 2. IN BOTH THE APPEALS, ASSESSEE HAS TAKEN COMMON GROUNDS. HENCE, WE REPRODUCE BELOW THE GROUNDS TAKEN IN THE ASSESSMENT YEAR 2005-06. 1.FOR THAT THE IMPUGNED ORDERS PASSED BY THE LEARNED A.O AS WELL AS LEARNED C.I.T(A) ARE NOT JUST AND PROPER UNDER THE FACTS AND IN THE 2 I.T.A.NO.21 & 22/CTK/2014 ASSESSMENT YEAR: 2005-06 & 2006-07 CIRCUMSTANCES OF THE CASE AND HENCE ARE LIABLE TO BE QUASHED IN THE INTEREST OF JUSTICE. 2. FOR THAT, THE LEARNED C.I.T(A) SHOULD HAVE CONDONE THE DELAY AND SHOULD HAVE CONSIDERED THE GROUNDS TAKEN BY THE APPELLANT ON MERIT AS THE IMPUGNED ADDITIONS MADE BY THE LEARNED A.O ARE NOT SUSTAINABLE IN THE EYE OF LAW. 3. FOR THAT THE LEARNED C.I.T (A) SHOULD HAVE CONSIDERED THE FACT OF THREATENING GIVEN BY THE MAOISTS TO PARTNERS OF THE APPELLANT FIRM AS IT IS WELL KNOWN TO HIM AND IS A FACT KNOWN TO EVERYBODY THAT IN KORAPUT DISTRICT, THERE WAS LIFE RISK TO ALL THE CONTRACTORS AND FOR SUCH AN ADMITTED FACT SHOULD NOT CALL FOR ANY EVIDENCE. 4. THAT THE LEARNED A.O SHOULD NOT HAVE ADDED BACK THE REMUNERATION AND INTEREST PAID TO PARTNER AMOUNTING TO RS.L, 21,824.00 WITHOUT WAITING FOR ANY EXPLANATION AND BY CHANGING THE STATUS OF THE FIRM. 5. THAT THE LEARNED A.O SHOULD NOT HAVE DISALLOWED RS.77,354.00 OUT OF THE TOTAL EXPENDITURES CLAIMED IN THE PROFIT AND LOSS ACCOUNT ON ESTIMATE BASIS. 6. THAT THE LEARNED A.O SHOULD NOT HAVE DISALLOWED AND ADDED BACK RS. 3,33,667.00 OUT OF THE TOTAL DEPRECIATION CLAIMED IN THE INCOME OF THE APPELLANT FIRM ON THE GROUND OF SUSPICION AND SURMISE. 7. THAT THE LEARNED A.O SHOULD NOT HAVE ADDED BACK RS.22,919.00 ON THE TOTAL INCOME OF THE APPELLANT/ASSESSEE TREATING THE SAME AS UNEXPLAINED BANK DEPOSIT BY CALCULATING FROM THE BANK ACCOUNT AND WITHOUT CONFRONTING THE SAME TO THE APPELLANT /ASSESSEE. 8. THAT THE LEARNED C.I.T(A) SHOULD HAVE INTERFERED WITH THE MATTER AND SHOULD HAVE DELETED THE ADDITIONS MADE BY THE LEARNED A.O AS THE SAME ARE ILLEGAL AND ARBITRARY. 2. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD OF THE CASE. ON PERUSAL OF THE IMPUGNED ORDERS, WE OBSERVE THAT THE CIT(A) HAS NOT CONDONED THE DELAY IN FILING THE APPEALS ON ACCOUNT OF SUFFICIENT CAUSE AND, ACCORDINGLY, DISMISSED AS NOT ADMITTED. IT IS THE CONTENTION OF THE LD A.R. THAT SINCE PARTNERS WERE AWAY, APPEALS COULD NOT FILED BEFORE THE CIT(A) ON TIME. WE ALSO FIND THAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS EXECUTING ONE SMALL WORK AT NARAYANPATNA AND DUE TO SOME DISPUTE, ALL THE PARTNERS OF THE ASSESSEE FIRM CAME INTO THE TARGET OF NAXAL, FOR WHICH, THEY WERE FORCED TO STAY OUTSIDE THEIR LOCAL AREA. IT WAS IN THIS BACKGROUND THAT 3 I.T.A.NO.21 & 22/CTK/2014 ASSESSMENT YEAR: 2005-06 & 2006-07 ASSESSEE COULD NOT PRODUCE ALL THE BOOKS OF ACCOUNT BEFORE THE AO DURING THE ASSESSMENT STAGE. HOWEVER, IT WAS STATED THAT THE ADVOCATE APPEARED IN SOME OF THE OCCASIONS BEFORE THE AO AND COMPLIED WITH SOME OF THE DOCUMENTS AND EXPLAINED THE QUERIES BUT THE AO DID NOT ACCEPT THE SUBMISSIONS OF THE COUNSEL FOR THE ASSESSEE AND PASSED THE ASSESSMENT ORDER U/S.143(3)/147 OF THE ACT. LOOKING TO THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE AND FAIR PLAY AND CONSIDERING THE FACT THAT THE CIT(A) HAS DISMISSED THE APPEALS WITHOUT CONDONING THE DELAY IN FILINGS THE APPEALS, WE DIRECT THE CIT(A) TO CONDONE THE DELAY AND ASSESSEE BE GIVEN ONE MORE OPPORTUNITY TO PUTFORTH HIS GRIEVANCE BEFORE DISPOSAL OF APPEALS. HENCE, WE SET ASIDE THE ORDERS OF LD CIT(A) AND RESTORE BACK THE MATTER TO THE FILE OF THE CIT(A) AND REDECIDE THE APPEALS AFRESH AFTER HEARING BOTH THE PARTIES. 3. IN THE RESULT, APPEALS FILED BY ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.06.2014 ) SD/- SD/- ( . . ) , (P.K.BANSAL), ACCOUNTANT MEMBER ( . . ), (D.T.GARASIA(JUDICIAL MEMBER ( )DATE. 27.06 .2014 PLACE: PANAJI (B.K.PARIDA) SENIOR.PRIVATE SECRETARY. 4 I.T.A.NO.21 & 22/CTK/2014 ASSESSMENT YEAR: 2005-06 & 2006-07 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : JAYAMANGALA CONST. BEJAPUT, DAMANJODI, KORAPUT. 2 / THE RESPONDENT:ITO, WARD-1, JEYPORE. 3 . /THE CIT,BHUBANESWAR 4 . ( )/THE CIT(A),BERHAMPUR 5 . /DR, CUTTACK BENCH 6 . GUARD FILE . /TRUE COPY, / BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK