DCIT, Sawai Madhopur V. YOGENDRA KUMAR KHANDELWAL,

ITA 211/JPR/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54240 (ITAT-JAIPUR)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Assessee Lawyers: C M BIRLA

Judgement Text

1 ITA 211-11 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH A JAIPUR. ( BEFORE SHRI R.K. GUPTA AND SHRI N.L. KALRA ) ITA NO. 211/JP/2011 ASSTT. YEAR : 2005-06 THE DCIT, CIRCLE SAWAI MADHOPUR. VS. SHRI YOGENDRA KUMAR KHANDELWAL, SAWAI MADHOPUR. NAHAR ROAD, GANGAPUR CITY. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.C. MEENA RESPONDENT BY : SHRI C.M. BIRLA DATE OF HEARING : 26.09.2011 DATE OF PRONOUNCEMENT : 14.10.2011. ORDER DATED : 14/10/2011. PER R.K. GUPTA, J.M. THIS IS AN APPEAL BY DEPARTMENT AGAINST THE ORDER OF LD. CIT (A) RELATING TO ASSESSMENT YEAR 2005-06. 2. THE DEPARTMENT IS OBJECTING IN DELETING THE TRAD ING ADDITION OF RS. 21,10,074/- (CORRECT FIGURE RS. 24,10,074/-). 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A CIVIL CONTRACTOR. DURING THE YEAR N.P. RATE OF 4.29% WAS DECLARED ON GROSS RECEIPTS O F RS. 6.50 CRORES OR ODD. THE AO REJECTED THE BOOKS OF ACCOUNT OF THE ASSESSEE BY IN VOKING PROVISIONS OF SECTION 145(3) AND ESTIMATED THE INCOME BY APPLYING N.P. RATE OF 8 % ON GROSS RECEIPTS WHICH RESULTED IN A TRADING ADDITION OF RS. 24,10,074/-. THE REASONS WERE GIVEN BY THE AO THAT CERTAIN 2 PURCHASES REMAINED UNVERIFIABLE, THEREFORE, IN VIEW OF THE PROVISIONS OF SECTION 44AE, HE APPLIED 8% N.P. RATE ON THE GROSS RECEIPTS. THE AO HAS ALSO NOTED THAT IN EARLIER TWO YEARS I.E. 2003-04 AND 04-05 THE BOOKS OF ACCOUNT W ERE REJECTED AND N.P. RATE OF 8% WAS APPLIED. THE AO HAS ALSO OBSERVED THAT IN ASSESSME NT YEAR 2003-04 THE ADDITION MADE BY AO WAS CONFIRMED BY LD. CIT (A). 4. DETAILED SUBMISSIONS WERE FILED BEFORE LD. CIT ( A). IT WAS EXPLAINED THAT THE ADDITION MADE FOR ASSESSMENT YEAR 2003-04 WAS DELET ED BY THE TRIBUNAL. SIMILAR ADDITION MADE FOR ASSESSMENT YEAR 2004-05 WERE ALSO DELETED BY TRIBUNAL. ACCORDINGLY, IT WAS SUBMITTED THAT AO HAS MADE THE ADDITION ON THE BASI S OF EARLIER TWO ASSESSMENT YEARS. THEREFORE, ADDITION MADE BY AO IS LIABLE TO BE DELE TED. 5. AFTER CONSIDERING THE ORDERS OF THE AO AND THE T RIBUNAL FOR ASSESSMENT YEAR 2003-04, THE LD. CIT (A) NOTED THAT SIMILAR ADDITIO NS WERE MADE BY THE AO FOR ASSESSMENT YEARS 2003-04 AND 04-05 BY APPLYING N.P. RATE OF 8%. THE TRIBUNAL HAS DELETED THE ADDITION BY PASSING ORDER IN ITA NO. 82 /JP/2007 VIDE ORDER DATED 24.4.2009 AND IN ITA NO. 872/JP/2009 VIDE ORDER DATED 18.6.20 10 FOR ASSESSMENT YEARS 2003-04 AND 2004-05 RESPECTIVELY. ACCORDINGLY HE HELD THAT THE ADDITIONS MADE FOR THE YEAR UNDER CONSIDERATION ARE LIABLE TO BE DELETED AS FACTS ARE SIMILAR FOR THE YEAR UNDER CONSIDERATION. 6. NOW THE DEPARTMENT IS IN APPEAL HERE BEFORE THE TRIBUNAL. 7. THE LD. D/R PLACED RELIANCE ON THE ORDER OF AO A ND SUBMITTED THAT CERTAIN PURCHASES REMAINED UNVERIFIABLE, THEREFORE, THE AO WAS JUSTIFIED IN APPLYING NP RATE OF 8%. 8. ON THE OTHER HAND, THE LD. COUNSEL OF THE ASSESS EE PLACED RELIANCE ON THE ORDER OF LD. CIT (A). 3 9. AFTER CONSIDERING THE ORDERS OF THE AO AND LD. C IT (A), WE FIND NO INFIRMITY IN THE FINDING OF LD. CIT (A) WHO HAS DELETED THE ADDI TION FOLLOWING THE ORDER OF TRIBUNAL FOR ASSESSMENT YEARS 2003-04 AND 04-05 WHEREIN ON S IMILAR FACTS NP RATE OF 8% WAS APPLIED. FOR ASSESSMENT YEAR 2003-04, THE NP RATE APPLIED BY AO WAS SUSTAINED BY LD. CIT (A). HOWEVER, ON SECOND APPEAL, THE TRIBUNAL HA S DELETED THE ADDITION. FOLLOWING THE ORDER OF TRIBUNAL FOR ASSESSMENT YEAR 2003-04, TRIBUNAL DELETED THE ADDITION FOR ASSESSMENT YEAR 2004-05 ALSO. SINCE FACTS ARE SIMI LAR FOR THE YEAR UNDER CONSIDERATION, THEREFORE, WE SEE NO REASON TO INTERFERE WITH THE F INDINGS OF LD. CIT (A) WHICH ARE BASED ON THE DECISION OF TRIBUNAL FOR EARLIER TWO YEARS. ACCORDINGLY WE CONFIRM THE ORDER OF LD. CIT (A). 10. IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISM ISSED. 11. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 14 .10.2011. SD/- SD/- ( N.L. KALRA ) ( R.K. GUPTA ) ACCOUNTANT MEMBER JUDICIAL MEMBER JAIPUR, D/ COPY FORWARDED TO :- THE DCIT, CIRCLE SAWAI MADHOPUR. SHRI YOGENDRA KUMAR KHANDELWAL, GANGAPUR CITY. THE CIT (A) THE CIT THE D/R GUARD FILE (ITA NO. 211/JP/2011) BY ORDER, AR ITAT JAIPUR.