Sh. Ram Darshan Sharma, Agra V. A.C.I.T.-1, Agra

ITA 212/AGR/2011

• Counselvise Citation: 21220314 RSA 2011
• Duration Of Justice: 1 year(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-06-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 08-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUHAIL AKHTAR
• Section: 145

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. 212/AGRA/2011 ASSTT. YEAR : 2005-06 SHRI RAM DARSHAN SHARMA, VS. D.C.I.T. , CIRCLE-1 , MAYA TRADES, 32 HARI NAGAR, AGRA. AGRA (PAN : AFLPS 7784 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE. RESPONDENT BY : SHRI SUHAIL AKHTAR, JR. D.R. DATE OF HEARING : 04.06.2012 DATE OF PRONOUNCEMENT OF ORDER : 22.06.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 14.02.2011 FOR THE ASSESSMENT YEAR 2005- 06 ON THE FOLLOWING GROUNDS : 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS BEEN ARBITRARY AND UNJUST WHILE SUSTAINING THE ADDITION AT RS.2,00,348/- BY APPLYING THE RATE OF GROSS PROFIT @ 20% AS AGAINST DISCLOSED RATE AT 17.52% BY THE APPELLANT, ADDITION SUSTAINED AT RS.2,00,348/- BY APPLYING OF THE G.P. RATE OF 20% I S NOT CALLED FOR LIABLE TO BE DELETED. 2. THAT THE LEARNED CIT(APPEALS) HAS NOT APPRECIAT ED THE FACTS THAT WHILE APPLYING OF THE HIGHER RATE OF G.P. ON T HE DISCLOSED SALE, THE AO HAS NOT REJECTED THE BOOKS OF A/C REGULARLY MAINTAINED BY THE APPELLANT, NOR INVOKED THE PROVISIONS OF SECTION 14 5 OF THE INCOME-TAX ACT, THE ADDITION MADE BY THE AO AND PARTLY SUSTAIN ED BY THE CIT(APPEALS) IS NOT CALLED FOR, LIABLE TO BE DELETE D. ITA NO. 212/AGRA/2011 2 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT THE AO M ADE ADDITION OF RS.5,00,000/- ON ACCOUNT OF UNVERIFIABLE MANUFACTURING EXPENSES W HICH WOULD TAKE CARE OF FALL IN GROSS PROFIT SHOWN BY THE ASSESSEE. IT WAS CONTE NDED BEFORE THE LD. CIT(A) THAT THERE WAS A FALL IN GROSS PROFIT RATE FROM 23% OF E ARLIER YEAR TO 17.52% IN THE ASSESSMENT YEAR UNDER APPEAL. THE ASSESSEE PRODUCED COMPLETE DETAILS, BUT BECAUSE OF DAY-TO-DAY CONSUMPTION OF RAW MATERIAL WAS NOT M AINTAINED, THE ADDITION WAS MADE. THE LD. CIT(A) SPECIFICALLY NOTED IN THE APPE LLATE ORDER, THAT IT HAS BEEN AGREED BY THE LD. COUNSEL FOR THE ASSESSEE THAT GRO SS PROFIT FOR THE ASSESSMENT YEAR UNDER APPEAL CAN BE TAKEN AT 20% WHICH WOULD BE SUF FICIENT TO TAKE CARE OF SLUMP IN THE MARKET AND REJECTION OF DESIGNS OF ASSESSEE BY THE FOREIGN BUYERS. THE LD. CIT(A) ACCEPTED THE CONTENTION OF THE LD. COUNSEL F OR THE ASSESSEE AND TOOK THE GROSS PROFIT RATE AT 20% AND RESTRICTED THE ADDITIO N TO RS.2,00,348/- AS AGAINST ADDITION MADE BY THE AO AT RS.5,00,000/- AND GRANTE D RELIEF TO THE ASSESSEE IN A SUM OF RS.2,99,652/-. THE ASSESSEE IS IN APPEAL ON THE ABOVE GROUNDS. 3. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) AND ADMITTED THAT HE HAS AGREED TO THE P ROPOSED ADDITION. THE LD. DR, THEREFORE, SUBMITTED THAT THE APPEAL OF THE ASSESSE E IS NOT MAINTAINABLE BECAUSE ADDITION MADE BY THE LD. CIT(A) WAS ON AGREED BASIS . ITA NO. 212/AGRA/2011 3 4. ON CONSIDERATION OF THE ABOVE SUBMISSIONS OF THE PARTIES, WE ARE OF THE VIEW THAT THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE . THE HONBLE BOMBAY HIGH COURT IN THE CASE OF JIVATLAL PURTAPSHI VS CIT, 65 ITR 261 HELD AS UNDER: HELD, THAT THE DEPARTMENT, HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONCEDED THE DELETION BEF ORE THE APPELLATE ASSISTANT COMMISSIONER CANNOT BE HELD TO BE AGGRIEV ED BY THIS PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL TO THE TRI BUNAL; THE APPEAL OF THE DEPARTMENT REGARDING THE DELETION OF THE AMOUNT WAS NEITHER COMPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE T RIBUNAL. 4.1 THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF BANTA SINGH KARTAR SINGH VS CIT, 125 ITR 239 OBSERVED: AN ORDER BASED ON AN AGREEMENT CANNOT GIVE RISE TO GRIEVANCES AND THE SAME CANNOT BE AGITATED IN APPEAL. IT WAS HELD: HELD, THAT IT WAS ON THE AGREEMENT OF THE ASSESSEE , WHICH AGREEMENT MENTIONED THE RATE AS WELL AS THE FIGURE, THAT PENA LTY HAD BEEN LEVIED. THE ASSESSEE HAD NO RIGHT TO AGITATE THIS QUESTION IN APPEAL. THE TRIBUNAL WAS RIGHT IN LAW IN NOT GOING INTO THE QUE STION WHETHER THE PENALTY WAS IN LAW THE MINIMUM PENALTY LEVIABLE UND ER S. 271(1) ( C ) OF THE I. T. ACT,1961. 4.2 THE HONBLE KERALA HIGH COURT IN THE RECENT DE CISION IN THE CASE OF CIT VS VAMADEVAN BHANU, 330 ITR 559 HELD AS UNDER: ASSESSMENT ASSESSMENT ON AGREED BASIS ASSESSEE CANNOT APPEAL AGAINST SUCH ORDER INCOME TAX ACT, 1961. ITA NO. 212/AGRA/2011 4 4.3. SINCE THE MANUFACTURING EXPENSES WERE NOT COMP LETELY VERIFIABLE AND THE ASSESSEE DID NOT PRODUCE REQUISITE DETAILS BEFORE T HE AO AND FURTHER THERE WAS FALL IN GROSS PROFIT AS COMPARED TO THE EARLIER YEAR, TH EREFORE, THE ADDITION OF RS.5,00,000/- WAS MADE BY THE AO. THE LD. COUNSEL F OR THE ASSESSEE, HOWEVER, AGREED BEFORE THE LD. CIT(A) THAT IF G.P. RATE IS T AKEN AT 20% INSTEAD OF 17.52% DISCLOSED BY THE ASSESSEE, IT WOULD BE SUFFICIENT A DDITION ON THIS ISSUE. THUS, THE LD. COUNSEL FOR THE ASSESSEE AGREED FOR THE ABOVE ADDIT ION, WHICH IS ULTIMATELY MADE BY THE LD. CIT(A), ON WHICH ABOVE GROUND IS RAISED. TH EREFORE, THE ASSESSEE IS NOT AT ALL AGGRIEVED AGAINST THE IMPUGNED ORDER, HENCE, TH E APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE. THE SAME IS, ACCORDINGLY, DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY