Sh. Suresh Chand Shukla, Agra V. A.C.I.T., Circle-1, Agra

ITA 210/AGR/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0740 (ITAT-AGRA)
• Duration Of Justice: 5 year(s) 11 month(s) 3 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 12-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PS J
• Assessee Lawyers: RAJENDRA SHARMA SHRI S D
• Keywords: Business income; Additional evidence
• Section: 271(1)(c); 142(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO.210/AGRA/2013 ASSESSMENT YEAR: 2009-10 SHRI SURESH CHAND SHUKLA, VS. ASSTT. COMMISSIONER OF INCOME TAX, 6C/21A2, AZAD NAGAR, CIRCLE-1, AGRA. KHANDARI, AGRA. (PAN : ABYPS 5328 J). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI S.D. SHARMA, JR. D.R. DATE OF HEARING : 24.07.2013 DATE OF PRONOUNCEMENT : 31.07.2013 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 15.03.2013 PASSED BY THE CIT(A)-I, AGRA FOR THE A.Y. 2009-10. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE AUTHORITIES BELOW HAVE ERRED ON FACTS AND IN LAW WHILE ESTIMATING THE INCOME OF THE APPELLANT AT RS.419344 0/- BY APPLYING THE RATE OF NET PROFIT @ 8% ON THE GROSS TOTAL RECE IPTS RECEIVED TO 2 ITA NO.210/AGRA/2013 A.Y. 2009-10 APPELLANT, NO ADDITION ON THIS SCORE IS CALLED FOR, INCOME DISCLOSED BY THE APPELLANT AT RS.2825655/- SUPPORTED BY REGULAR BOOKS OF A/C IS LIABLE TO BE ACCEPTED, ADDITION MADE ON THIS SCORE BY THE A.O. AND SUSTAINED BY THE CIT(APPEALS) IS LIABLE TO BE DELET ED. 2. THAT THE AUTHORITIES BELOW ARE ARBITRARY AND UNJ UST WHILE MAKING THE ADDITION AT RS.2966000/- U/S 68 OF THE I .T. ACT TREATING THE UNSECURED LOAN APPEARING IN THE BALANCE SHEET ARE N OT GENUINE, ADDITION MADE BY THE A.O. AND SUSTAINED BY THE CIT( APPEALS) IS NOT CALLED FOR, SAME IS LIABLE TO BE DELETED. 3. THAT WHILE SUSTAINING THE ADDITIONS AS ABOVE, TH E AUTHORITIES BELOW HAVE NOT APPRECIATED THE FACTS AND CIRCUMSTAN CES OF THE CASE AFTER TAKING INTO CONSIDERATION THE SAME, NO ADDITI ON ARE LIABLE TO BE CALLED OR, SAME ARE LIABLE TO BE DELETED. 4. THAT THE ORDER OF THE CIT(APPEALS) DATED 15.03.2 013 IS BAD I LAW. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A CIVIL CONTRACTOR AND DERIVES BUSINESS INCOME FROM PROPRIETORSHIP AND ALS O HAVE INCOME FROM HOUSE RENT AND INCOME FROM OTHER SOURCES. THE ASSESSEE FILED RETURN OF INCOME DECLARING INCOME OF RS.29,48,539/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY. THE A.O. ISSUED NOTICE TO THE ASSESSEE TO PRODUCE BOOKS OF ACCOUNT AND OTHER RECORDS IN SUPPORT OF THE RETURN FILED BY THE ASSESSEE. A NUM BER OF TIMES THE CASE WAS FIXED AND THE ASSESSEE SOUGHT ADJOURNMENTS. FOR NON-COMP LIANCE OF NOTICE, PENALTY UNDER SECTION 271(1)(B) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) HAS BEEN LEVIED. THE A.O. NOTICED THAT THE ASSESSEE IS DELIBERATELY FAILED TO COMPLY THE 3 ITA NO.210/AGRA/2013 A.Y. 2009-10 NOTICE. THE RELEVANT OBSERVATION OF THE A.O. IS RE PRODUCED AS UNDER :- (PAGE NO.1 & 2) IN RESPONSE TO THE NOTICES, ASSESSEE SOUGHT AN ADJ OURNMENT ON 02.10.2010. ANOTHER NOTICE WAS GIVEN TO ASSESSEE O N 05.04.2011 TO FURNISH INCOME TAX RETURN, COMPUTATION, BALANCE SHE ET AND AUDIT REPORT. AGAIN ASSESSEE COULD NOT FURNISH THE SAME. ASSESSEE FILED AN OBJECTION WHICH HAS BEEN SETTLED AND NOTICE U/S 142 (1) ISSUED ALONG WITH QUESTIONNAIRE. VIDE LETTER DATED 14.06.2011 A SSESSEE HAS SUBMITTED AN APPLICATION FOR ADJOURNMENT. NOTICE U /S 142(1) HAS BEEN ISSUED. ASSESSEE AGAIN SOUGHT ADJOURNMENT. VIDE L ETTER DATED 11.07.2011 A PENALTY NOTICE U/S 271(1)(C) HAS BEEN ISSUED. ADVOCATE OF THE ASSESSEE SHRI ANURAG SINHA FILED APPLICATION FOR ADJOURNMENT. AS THE ASSESSEE TIME AND AGAIN FAILED TO COMPLY WIT H NOTICE U/S 142(1) DELIBERATELY, PENALTY ORDER HAS BEEN PASSED ON 29.0 7.2011. ON 19.08.2011 ASSESSEE SENT A LETTER BY SPEED POST GRA NTING ADJOURNMENT. A FRESH NOTICE U/S 142(1) DATED 02.09.2011 HAS BEEN ISSUED. ASSESSEE AGAIN FILED APPLICATION FOR ADJOURNMENT. LOOKING THE ABOVE FACTS IT IS VERY CLEAR THAT ASSES SEE HAS BEEN DELIBERATELY REFUSED TO COMPLY THE STATUTORY NOTICE S OF THE DEPARTMENT. ON 25.11.2011 SHRI ANUPAM SINHA, ADVOCATE, APPEARED BUT EVEN NOW DID NOT PRODUCE BOOKS OF ACCOUNTS EVEN AFTER ASKING OF REPEATEDLY. 4. ON ACCOUNT OF NON-COMPLIANCE AND NON-PRODUCTION OF BOOKS OF ACCOUNT, THE A.O. REJECTED THE ASSESSEES BOOKS INVOKING SECTION 145(3) OF THE ACT AND ESTIMATED PROFIT APPLYING NET PROFIT RATE OF 8% OF THE CONTRACT RECEIPTS. THE A.O. COMPUTED THE TOTAL INCOME AS UNDER :- (PAGE NO.3) 4 ITA NO.210/AGRA/2013 A.Y. 2009-10 AFTER DISCUSSION, THE COMPUTATION OF INCOME IS AS UNDER :- 1. INCOME FROM BUSINESS OR PROFESSION NET PROFIT ON THE GROSS RECEIPTS OF RS.5,24,17,997 @ 8% 41,93,440 ADDITION AS PER PARA 4 ABOVE 29,66,000 2. INCOME FROM HOUSE PROPERTY 16,500 3. INCOME FROM OTHER SOURCES 1,60,774 73,36,714 OR 73,36,710/- 5. BEFORE THE CIT(A) ALSO THE ASSESSEE HAS NEITHER APPEARED NOR MADE ANY COMPLIANCE. THE RELEVANT OBSERVATIONS OF CIT(A) AR E AS UNDER :- (PAGE NOS.5 & 6) EVEN DURING THE APPEAL PROCEEDING, NO ATTEMPT WAS MADE BY THE ASSESSEE (APPELLANT) OR HIS AUTHORISED REPRESEN TATIVE TO MAKE CORRECTION IN THE GROUNDS OF APPEAL FILED ALONG WIT H THE APPEAL FORM NO.35, LEAVE ASIDE FURNISHING OF ANY WRITTEN SUBMIS SION OR ANY OTHER EVIDENCE TO SHOW ANY ERROR IN THE ORDER PASSED BY T HE AO. THEREFORE, I AM SATISFIED THAT THE ASSESSEE (APPELLANT) HAS NO THING TO SUBMIT AGAINST THE ASSESSMENT ORDER DATED 29.12.2011 AND T HEREFORE, GROUND NO.4 , IS ALSO DISMISSED. 6. THE CIT(A), CONSIDERING THE FACTS AVAILABLE ON R ECORD, CONFIRMED THE ORDER OF A.O. 7. THE CONTENTION OF THE LD. AUTHORISED REPRESENTAT IVE WAS THAT THE ASSESSEE HAS GIVEN ALL THE RELEVANT DOCUMENTS AND PAPERS TO HIS COUNSEL. THE ASSESSEE WAS UNDER THE BELIEF THAT THESE PAPERS HAVE BEEN FILED BY HIS COUNSEL BEFORE THE A.O. AND CIT(A). THE LD. AUTHORISED REPRESENTATIVE SUBM ITTED THAT IN THIS CASE THE 5 ITA NO.210/AGRA/2013 A.Y. 2009-10 ASSESSEE HAS FURNISHED AN APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCES SUPPORTED BY AN AFFIDAVIT OF WHICH COPY HAS BEEN PL ACED AT PAGE NOS.3 & 4 OF ASSESSEES PAPER BOOK. THE LD. AUTHORISED REPRESEN TATIVE TRIED TO DEMONSTRATE THAT THERE ARE SOME FACTS BASED ON WHICH PRIMA FACI E NO ADDITION IS REQUIRED. HE SUBMITTED THAT THE ADDITION WAS MADE ON SUNDRY CRED ITORS AND UNSECURED LOANS AS THERE WERE OPENING BALANCES IN THE ACCOUNT OF SUNDR Y CREDITORS AND LOANS AND ADVANCES. LD. AUTHORISED REPRESENTATIVE DEMONSTRAT ED THIS FACT BY REFERRING PAGE NOS.28 TO 48 OF THE PAPER BOOK. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED EVEN G.P. ADDITION IS NOT WARRANTED AS THE ASSESSEE MAIN TAINED COMPLETE BOOKS OF ACCOUNT. THE LD. AUTHORISED REPRESENTATIVE SUBMITT ED THAT MATTER MAY BE SENT BACK TO THE FILE OF AO. THE ASSESSEE WILL EXTEND H IS FULL CO-OPERATION AND WILL APPEAR BEFORE THE A.O. 8. LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HA ND, RELIED UPON THE ORDER OF CIT(A) AND SUBMITTED THAT THE ASSESSEE HAS FAILED T O FURNISH ANY EVIDENCE OR MATERIAL EITHER BEFORE THE A.O. OR BEFORE THE CIT(A ) INSPITE OF OPPORTUNITY OF HEARING WAS GIVEN TO THE ASSESSEE. HE ACCORDINGLY HELD THAT THE ORDER OF THE CIT(A) MAY BE CONFIRMED. 6 ITA NO.210/AGRA/2013 A.Y. 2009-10 9. WE HAVE HEARD THE LD. REPRESENTATIVES OF THE PAR TIES AND RECORDS PERUSED. RULE 29 OF APPELLATE TRIBUNAL RULES PROVIDES THAT T HE PARTIES TO THE APPEAL SHALL NOT BE ENTITLED TO PRODUCE ADDITIONAL EVIDENCE EITH ER ORAL OR DOCUMENTARY BEFORE THERE TRIBUNAL, BUT IF THE TRIBUNAL REQUIRES ANY DO CUMENT TO BE PRODUCED OR ANY WITNESS TO BE EXAMINED OR ANY AFFIDAVIT TO BE FILED TO ENABLE IT TO PASS ORDERS OR FOR ANY OTHER SUBSTANTIAL CAUSE, OR, IF THE INCOME-TAX AUTHORITIES HAVE DECIDED THE CASE WITHOUT GIVING SUFFICIENT OPPORTUNITY TO THE ASSESS EE TO ADDUCE EVIDENCE EITHER ON POINTS SPECIFIED BY THEM OR NOT SPECIFIED BY THEM, THE TRIBUNAL, FOR REASONS TO BE RECORDED, MAY ALLOW SUCH DOCUMENT TO BE PRODUCED OR WITNESS TO BE EXAMINED OR AFFIDAVIT TO BE FILED OR MAY ALLOW SUCH EVIDENCE TO BE ADDUCED. 10. ON CONSIDERATION OF ABOVE RULE 29 OF APPELLATE TRIBUNAL RULES, WE FIND THAT THE LD. AUTHORISED REPRESENTATIVE HAS DEMONSTRATED THE FACTS BASED ON WHICH PRIMA FACIE THE ADDITION IS NOT WARRANTED ON SUCH AN OPEN ING BALANCE OF CASH CREDITORS AND LOANS. IN SUPPORT OF PROFIT DECLARED, THE ASSE SSEE STATED HE IS HAVING BOOKS OF ACCOUNT. UNDER THE INCOME TAX ACT, IT IS SETTLED L AW THAT ONLY CORRECT INCOME IS TO BE ASSESSED. SINCE THE ASSESSEE IS HAVING SOME PRI MA FACIE CASE, CONSIDERING ASSURANCE BY LD. AUTHORISED REPRESENTATIVE AT BAR A ND IN THE INTEREST OF JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCE FILED BY THE ASSESSEE WHICH HAS BEEN PLACED IN THE PAPER BOOK FROM PAGE NOS.1 TO 49. THE ADDITIONAL E VIDENCES FILED BY THE ASSESSEE 7 ITA NO.210/AGRA/2013 A.Y. 2009-10 REQUIRE NECESSARY EXAMINATION AND VERIFICATION AND ALSO COMPLETE AND CORRECT FACTS OF THE CASE ARE REQUIRED TO BE PUT ON RECORD. WE, THEREFORE, FIND IT APPROPRIATE TO SEND BACK THIS ISSUE TO THE FILE OF A.O. WITH THE D IRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER PROVIDING REASONABLE O PPORTUNITY OF HEARING TO THE ASSESSEE. 11. BEFORE PARTING FROM THE MATTER, IT IS RELEVANT TO STATE THAT IF THE ASSESSEE STILL FAILS TO COMPLY WITH THE NOTICES OR FAILS TO CO-OPE RATE WITH THE DEPARTMENT, THE A.O. IS AT LIBERTY TO REPEAT HIS ORDER OR PASS ORDE R IN ACCORDANCE WITH AW. 12. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY