The I.T.O.-4(4), Agra V. Sh. Suresh Chand Agarwal, Agra

ITA 236/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0502 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 11 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 23-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRI

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. 236/AGRA/2012 ASSTT. YEAR : 2008-09 INCOME-TAX OFFICER, VS. SHRI SURESH CHAND AGARWA L, 4(4), AGRA. 20, KAVERI KUNJ, KAMLA NAGAR, AGRA(PAN : ABHPA 9742 K) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH, ADVOCATE DATE OF HEARING : 28.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 29.01.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE DEPARTMENT IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AGRA DATED 24.02.2012 FOR THE ASSESSMENT YEAR 2008- 09. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF AUTHORITIES BELOW. 3. ON GROUND NO. 1 & 2, THE REVENUE CHALLENGED THE DELETION OF ADDITION OF RS.45,31,569/-. THE LD. CIT(A) NOTED THAT SINCE ADD ITION OF RS.45,31,569/- HAS BEEN MADE ON PROTECTIVE BASIS AND SUBSTANTIVE ADDIT ION IS CONFIRMED IN THE CASE OF ITA NO. 236/AGRA/2012 2 M/S. M.L. HOUSING PVT. LTD., THEREFORE, THE ADDITIO N ON PROTECTIVE BASIS IN THE HANDS OF THE ASSESSEE WAS DELETED. THE APPEAL OF TH E ASSESSEE, M/S. M.L. HOUSING PVT. LTD. IN ITA NO. 178 OF 2012 WAS ALSO FIXED BEF ORE US FOR HEARING ALONG WITH THE PRESENT APPEAL ON 28.01.2013 AND THE LD. COUNSE L FOR THE ASSESSEE IN THAT CASE WITHDREW THE APPEAL. THEREFORE, VIDE SEPARATE ORDER , THE APPEAL OF THE ASSESSEE M/S. M.L. HOUSING PVT. LTD. FOR SAME ASSESSMENT YEA R UNDER APPEAL HAS BEEN DISMISSED AS WITHDRAWN VIDE ORDER DATED 28.01.2013. THEREFORE, THE PROTECTIVE ASSESSMENT HAS BEEN RIGHTLY DELETED IN THE CASE OF PRESENT ASSESSEE. GROUNDS NOS. 1 & 2 OF THE DEPARTMENTAL APPEAL ARE, ACCORDINGLY, DI SMISSED. 4. ON GROUND NO. 3, THE REVENUE CHALLENGED THE DELE TION OF ADDITION OF RS.1,43,011/- ON ACCOUNT OF REJECTION OF BOOK RESUL TS. THE LD. CIT(A) NOTED IN THE IMPUGNED ORDER THAT THE BOOKS OF ACCOUNT OF THE ASS ESSEE HAVE BEEN REJECTED BY THE AO WITHOUT SPECIFICALLY POINTING OUT ANY DEFECTS TH EREIN. THEREFORE, THE ADDITION IS NOT PERMISSIBLE. THE LD. CIT(A) ALSO NOTED THAT IT IS A FACT THAT DURING THE YEAR UNDER CONSIDERATION, NO SALES HAVE BEEN MADE AND ON LY CONTRACT WORK HAS BEEN CARRIED OUT BY THE ASSESSEE. THEREFORE, PROFIT RATE AS SHOWN IN THE PRECEDING ASSESSMENT YEAR 2006-07 CANNOT BE APPLIED AGAINST T HE ASSESSMENT YEAR UNDER APPEAL. THE LD. CIT(A), ACCORDINGLY, DELETED THE AD DITION. ITA NO. 236/AGRA/2012 3 5. ON CONSIDERATION OF THE RIVAL SUBMISSIONS, WE AR E OF THE VIEW THAT THE LD. CIT(A) HAS RIGHTLY DELETED THE ADDITION. THE ASSESS EE HAS FILED COMPARATIVE CHART OF SALES AND CONTRACT RECEIPTS BEFORE THE LD. CIT(A ), WHICH IS REPRODUCED AT PAGE 2 OF THE APPELLATE ORDER, IN WHICH THE ASSESSEE HAS N OT SHOWN ANY SALES IN THE ASSESSMENT YEAR UNDER APPEAL. THE AO APPLIED HIGHER PROFIT RATE AS WAS APPLIED IN THE ASSESSMENT YEAR 2006-07 IN WHICH THE ASSESSEE M ADE SALES AS WELL. THEREFORE, THERE WAS NO BASIS FOR THE AO TO MAKE THE ADDITION. THE LD. CIT(A), THEREFORE, RIGHTLY NOTED THAT WITHOUT POINTING OUT ANY SPECIFI C DEFECT IN THE BOOKS OF ASSESSEE, THE AO SHOULD NOT HAVE REJECTED THE BOOK RESULTS OF THE ASSESSEE. NO ADVERSE MATERIAL IS PRODUCED BEFORE US TO CONTRADICT THE FI NDING OF THE LD. CIT(A. IN THE ABSENCE OF ANY MATERIAL ON RECORD, WE DO NOT FIND A NY JUSTIFICATION TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) IN DELETING THE ADDITIO N. THE ORDER OF THE LD. CIT(A) IS CONFIRMED AND THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 6. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- ITA NO. 236/AGRA/2012 4 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