The Gidderbaha Janta Truck Union, Bathinda V. The Income Tax Officer, Bathinda

ITA 237/ASR/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0586 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 7 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-01-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 20-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: S K BANSAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.184(ASR)/2010 ASSESSMENT YEAR:2006-07 PAN :AAAAB1384R THE BIR BHOLA TRUCK UNION, VS. JT. COMMR. OF INCOME -TAX, BATHINDA. RANGE-2, BATHINDA. (APPELLANT) (RESPONDENT) I.T.A. NO.95(ASR)/2010 ASSESSMENT YEAR:2006-07 PAN :AAAAT6580F THE TRUCK UNION, VS. DY. COMMR. OF INCOME-TAX, BHAGAPURANA. NOW ITO II, MOGA. (APPELLANT) (RESPONDENT) I.T.A. NO.237(ASR)/2010 ASSESSMENT YEAR:2006-07 PAN :AAAAT6257H THE GIDDERBAHA JANTA TRUCK UNION, VS. INCOME TAX OF FICER, GIDDERBAHA, DISTT. BATHINDA. WARD-2(1), BATHINDA. (APPELLANT) (RESPONDENT) I.T.A. NO.263(ASR)/2010 ASSESSMENT YEAR:2006-07 PAN:AAAAT6257H 2 THE INCOME TAX OFFICER, VS. THE GIDDERBAHA JANTA TRUCK UNION, WARD 2(1), BATHINDA. GIDDERBAHA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. S.K. BANSAL, ADVOCATE RESPONDENT BY:SH. R.L.CHHANALIA, DR DATE OF HEARING:16/01/2013 DATE OF PRONOUNCEMENT:18/01/2013 ORDER PER BENCH ; THESE THREE APPEALS OF DIFFERENT ASSESSEES ARISE F ROM THREE DIFFERENT ORDERS OF CIT(A) BATHINDA. THE REVENUE HAS ALSO FIL ED APPEAL IN THE CASE OF M/S. THE GIDDERBAHA JANTA TRUCK UNION AGAINST THE O RDER OF THE CIT(A). THE DETAILS OF THE ORDERS OF THE LD. CIT(A) OF DIFF ERENT ASSESSEES ARE AS UNDER: NO. ITA NO. ARISING OUT OF ORDER OF CIT(A) ORDER DT. ASSTT. YEAR. 1. 184(ASR)/2010 CIT(A) BATHINDA 26.02.2010 2006-0 7 2. 95(ASR)/2010 CIT(A)-II, LDH. 21.12.2009 -DO- 3. 237(ASR)/2010 CIT(A) BATHINDA 31.03.2010 -DO- 4. 263(ASR)/2010 -DO- -DO- -DO- 2. SINCE THE ISSUES IN ALL THE APPEALS ARE IDENTICA L AND THEREFORE, ALL THE APPEALS ARE BEING TAKEN UP BY THIS CONSOLIDATED ORD ER. THE DIFFERENT ASSESSEES HAVE RAISED GROUNDS OF APPEALS AS UNDER: 3. IN ITA NO.184(ASR)/2010 FOR THE A.Y. 2006-07 ( M/S. THE BIR BHOLA TRUCK UNION), THE ASSESSEE HAS RAISED FOLLOWING GRO UNDS OF APPEAL: 3 (1) THAT THE ORDER OF THE CIT(A) BATHINDA, IS BAD IN LAW TO THE EXTENT THAT THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ROHTAK PUBLIC GOODS MOTOR, (APPEA RING IN 26 INDIAN TAXATION REPORTS PAGE 246) IGNORED BY THE CIT(A). (2) THAT THE LD. CIT(A) BATHINDA WRONGLY APPLIED A NET PROFIT RATE OF 3% ON GROSS RECEIPTS WITHOUT APPRECIATING THE FACTS THAT THE COLLECTION FROM THE TRUCK UNION MEMBERS IS NOT TA XABLE AS COLLECTION FROM MEMBERS IS NOT THE INCOME. (3) THAT THE ASSESSMENT IS AGAINST LAW AND FACTS, SO LIABLE TO BE QUASHED. 4. IN ITA NO.95(ASR)/2010 FOR THE A.Y. 2006-07 (M/S . THE TRUCK UNION), THE ASSESSEE HAS RAISED FOLLOWING GROUNDS O F APPEAL: (1) THAT THE ORDER OF THE CIT(A) BATHINDA, IS BAD IN LAW TO THE EXTENT THAT THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ROHTAK PUBLIC GOODS MOTOR IGNORED BY THE CIT(A). (2) THAT THE LD. CIT(A) BATHINDA WRONGLY CONFIRMED THE ADDITION OF RS.62,690/- AS INTT. RECD FROM THE INCOME TAX DEPARTMENT WHERE THE INCOME OF THE UNION IS NOT TAXABLE, AS IT WAS A CONTRIBUTION BY THE MEMBERS AND IF ANY THE INTERE ST IS TAXABLE IN THE HANDS OF THE MEMBERS. (3) THAT THE ORDER OF CIT(A) MAY KINDLY BE SET ASI DE, MODIFIED OR ANY OTHER CONSEQUENTIAL RELIEF BE ALLOWED, AS PRA YED AS PER GROUNDS OF APPEAL. (4) THAT THE ASSESSMENT IS AGAINST LAW AND FACTS, SO LIABLE TO BE QUASHED. 4 5. IN ITA NO.237(ASR)/2010 FOR THE A.Y. 2006-07 ( M/S. THE GIDDERBAHA JANTA TRUCK UNION), THE ASSESSEE HAS RAI SED FOLLOWING GROUNDS OF APPEAL: 1(A) THAT THE ORDER OF THE CIT(A) BATHINDA, IS BA D IN LAW TO THE EXTENT THAT THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. ROHTAK PUBLIC GOODS MOTOR, IGNORE D BY THE CIT(A). 1(B) THAT THE TRUCK UNION IS A NON PROFIT ASSOCIAT ION WITH NO BUSINESS INCOME, AS IT IS ON MUTUAL BASIS AND IGN ORED THE CIRCULAR OF THE BOARD DATED 19.12.2008 APEARING I N 308 ITR-ST 5. (2) THAT THE LD. CIT(A) BATHINDA WRONGLY CONFIRMED THE RATE OF PROFIT AT 3% WHEN THE INCOME OF THE UNION IS NOT TAXABLE AS IT WAS A CONTRIBUTION BY THE MEMBERS, AND THE SURPLU S IS OUT OF COLLECTION BY THE MEMBERS. (3) THAT THE LD. CIT(A) WRONGLY CONFIRMED THE CHAR GING OF INTEREST U/S 234D AND WITHDRAWAL U/S 244A(3). (4) THAT THE ORDER OF THE CIT(A) MAY KINDLY BE SET ASIDE, MODIFIED OR ANY OTHER CONSEQUENTIAL RELIEF BE ALLOWED, AS PRAYED AS PER GROUNDS OF APPEAL. (5) THAT THE ORDER OF THE CIT(A) IS BAD IN LAW AS WELL AS ON FACTS. 6. IN ITA NO.263(ASR)/2010 FOR THE A.Y. 2006-07 ( M/S. THE GIDDERBAHA JANTA TRUCK UNION), THE REVENUE HAS RAI SED FOLLOWING GROUNDS OF APPEAL: (1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS. 7,56,467/- WITH THE DIRECTION TO COMPUTE THE INCOME BY APPLICATIO N OF NET PROFIT @ 3% ON GROSS RECEIPTS INSTEAD OF 6% AS APPLIED B Y THE A.O. 5 1A. IT HAS NOT BEEN APPRECIATED BY THE LD. CIT(A) THAT THE FACTS OF THE PRESENT YEAR ARE TOTALLY DIFFERENT FROM THE F ACT OF THE ASSESSMENT YEAR 2007-08. 2. IT IS PRAYED THAT THE ORDER OF THE LD. CIT(A) BE SE T-ASIDE AND THAT OF THE A.O. BE RESTORED. 3. THE APPELLANT CRAVES LEAVE TO ADD OR AMEND ANY GROU NDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 7. SINCE AS MENTIONED HEREINABOVE AND ON PERUSAL OF RECORDS, WE FIND THAT THE ISSUE IN DISPUTE IN ALL THE APPEALS ARE ID ENTICAL AND THEREFORE, WE TAKE UP THE APPEAL OF THE ASSESSEE - M/S. THE BIR BHOLA TRUCK UNION IN ITA NO.184(ASR)/2010 FOR THE A.Y. 2006-07, FIRST OF ALL . OUR DECISION IN THIS APPEAL SHALL BE APPLICABLE IN OTHER APPEALS MENTION ED HEREINABOVE BEING THE ISSUES ON IDENTICAL FACTS. 8. THE BRIEF FACTS IN THE GROUNDS OF THE ASSESSEE A RE THAT THE CASE OF THE ASSESSEE IS THAT OF A TRUCK OPERATOR UNION WHO IS E NGAGED IN THE BUSINESS OF TRANSPORTATION AND PLYING OF TRUCKS. DURING THE YEA R THE ASSESSEE HAS DONE THE TRANSPORTATION WORK OF M/S. GUJRAT AMBUJA CEME NT LTD; AND PUNSUP, BATHINDA ON CONTRACT BASIS. THE GROSS RECEIPTS EA RNED FROM THE SAME ARE TO THE EXTENT OF RS.1,65,82,047/-. THE ASSESSEE HAS NO T SHOWN THESE RECEIPTS. HOWEVER, TDS HAS BEEN CLAIMED ON THE SAME. THE ACC OUNTS OF THE ASSESSEE WERE ALSO NOT AUDITED U/S 44AB OF THE ACT. ON A PE RUSAL OF THE INCOME AND EXPENDITURE STATEMENT FILED BY THE APPELLANT, THE AO NOTICED THAT THE 6 ASSESSEE DID NOT FURNISH THE CORRECT PICTURE OF THE RECEIPTS EARNED DURING THE YEAR. NO PROPER BOOKS OF ACCOUNT WERE FOUND TO HAVE BEEN MAINTAINED. MOREOVER, NO RECONCILIATION OF THE DISBURSEMENT OF THE RECEIPTS HAS BEEN FILED. NO BOOKS OF ACCOUNT LIKE CASH BOOK, LEDGER, BILLS OR VOUCHERS WERE PRODUCED DURING THE COURSE OF ASSESSMENT PROCEEDING S. THE P&L ACCOUNT AND BALANCE SHEET WERE ALSO NOT FILED. THE ONLY BOO KS PRODUCED BY THE ASSESSEE WERE TWO ROUGH BOOKS OF PAYMENTS WHICH W ERE ALSO NOT FOUND PROPERLY MAINTAINED. THE AO IN HIS ASSESSMENT ORDER HAS PRODUCED SOME OF THE SCANNED PAGES OF THESE ROUGH BOOKS OF THE ASSES SEE WHICH SHOW THAT THE ASSESSEE HAS NOT MAINTAINED ANY PROPER RECORD OF TH E RECEIPTS EARNED DURING THE YEAR, DISBURSEMENT OF RECEIPT AND THE PROFITS E ARNED FROM THE SAME. THE SIGNATURES WERE NOT VERIFIABLE AND EVEN THE VOUCHER S PRODUCED WERE FOUND SUFFERING FROM VARIOUS DEFECT. FROM THE PERUSAL OF THE BANK STATEMENTS OF THE VARIOUS ACCOUNTS MAINTAINED BY THE ASSESSEE, THE AO NOTICED THAT HUE TRANSACTIONS HAVE TAKEN PLACE THROUGH THE SAME. DET AILS OF THESE ENTRIES WERE NOT FURNISHED. THE AO PROVIDED DUE OPPORTUNITIES TO THE ASSESSEE TO EXPLAIN THE SAME. HOWEVER, IN THE ABSENCE OF ANY SATISFACT ORY REPLY THE AO CAME TO THE CONCLUSION THAT THE AFFAIRS OF THE ASSESSEE TRU CK UNION WERE BEING MANAGED IN A VERY ADHOC MANNER. THE ASSESSEE HAD FA ILED TO PRODUCE ANY BOOKS OF ACCOUNT FROM WHERE ITS RECEIPTS AND ITS DI SBURSEMENT COULD BE VERIFIED. VARIOUS DISCREPANCIES WERE ALSO NOTICED B Y THE AO IN RESPECT OF THE 7 BANK STATEMENTS OF THE ASSESSEE AND VARIOUS ENTRIES WERE NOT VERIFIABLE IN THE ABSENCE OF THE REGULAR BOOKS OF ACCOUNT. HENCE, THE AO OBSERVED THAT THE ASSESSEES BOOKS OF ACCOUNT WERE IMPROPER AS NO COR RECT PICTURE OF INCOME EARNED BY THE ASSESSEE EMERGES FROM THAT. THE AO I SSUED A SHOW CAUSE NOTICE AND IN THE ABSENCE OF THE SATISFACTORY REPLY HAVING BEEN FILED BY THE ASSESSEE, THE AO ESTIMATED A NET PROFIT AT THE RATE OF 6% ON THE GROSS RECEIPTS OF RS.1,65,82,047/-, WHICH COMES TO RS.9,94,923/-. ALL THE EXPENSES WERE ALLOWABLE UNDER THE PROVISIONS OF SECTION 30 TO 38 WERE DEEMED TO HAVE BEEN ALLOWED AND NO FURTHER DEDUCTION UNDER THESE SECTIO NS WAS ALLOWED BY THE A.O. 9. THE LD. CIT(A) DECIDED THE ISSUE AND FOR THE SA KE OF CLARITY, ORDER OF THE CIT(A) AVAILABLE AT PAGES 8 TO 10 IS REPRODUCE D AS UNDER: THE AR OF THE APPELLANT HAS ALSO TAKEN AN ALTERNAT E PLEA FOR DETERMINING THE INCOME OF THE APPELLANT AT A LESSE R PERCENTAGE OF TURNOVER AS AGAINST THE APPLICATION OF 6% ON THE G ROSS RECEIPTS, BY THE AO. ON DUE CONSIDERATION OF THE FACTS OF THE CASE, THE APPEAL IS BEING DECIDED AFRESH AS UNDER: AS REGARDS THE CASE LAWS/DECISIONS RELIED UPON B Y THE A/R OF THE APPELLANT WITH DUE REGARDS TO THE DECISIONS, I T IS TO BE MENTIONED THAT IT IS THE APPELLANT ONLY WHICH HAS FILED ITS RETURN OF INCOME VOLUNTARILY DISCLOSING INCOME FROM ITS TRANSPORTA TION BUSINESS. MOREOVER, DURING THE COURSE OF APPEAL PROCEEDINGS THE A/R OF THE APPELLANT HAS ALSO TAKEN AN ALTERNATE PLEA FOR DET ERMINING THE INCOME OF THE APPELLANT AT A LESSER RATE ON ITS GROSS REC EIPTS AS AGAINST THE RATE OF 6% APPLIED BY THE AO. 8 AS REGARDS THE APPLICATION OF NET PROFIT RATE OF 6% ON THE TOTAL GROSS RECEIPTS, IT IS APPARENT FROM THE ASSESSMENT ORDER THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE APPELLA NT HAS FAILED TO PRODUCE ANY PROPER BOOKS OF ACCOUNTS, DETAILS OF VOUCHERS AND HAS ALSO FAILED TO EXPLAIN THE ENTREES OF HUGE TR ANSACTIONS IN RESPECT OF ITS BANK ACCOUNTS. THE ACCOUNTS OF THE APPELLANT UNION ARE ALSO NOT AUDITED U/S 44AB OF THE IT ACT. MOREOVER, THE LIMITED RECORD, AS PRODUCED BY THE APPELLANT I.E. ONLY TW O ROUGH BOOKS OF PAYMENTS, WERE ALSO NOT FOUND PROPERLY MAINTAINE D. NO PROPER SIGNATURES OR DISBURSEMENT DETAILS WERE THERE IN THE ROUGH BOOKS PRODUCED. THE APPELLANT HAS NOT MAINTAINED ANY PRO PER RECORD OF ITS RECEIPTS AND DISBURSEMENT AND IN RESPECT OF THE PR OFIT EARNED FROM THE SAME. THE APPELLANT ALSO COULD NOT EXPLAIN TH E VARIOUS ENTRIES IN RESPECT OF THE BANK STATEMENTS OF VARI OUS ACCOUNTS MAINTAINED BY THE APPELLANT. COMPLETE DETAILS HAVE NOT BEEN FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDI NGS BEFORE THE AO, IN SPITE OF HAVING BEEN GIVEN A NUMBER OF OPPO RTUNITIES. NEITHER ANY PROPER BOOKS OF ACCOUNT HAVE BEEN MAI NTAINED NOR ANY BALANCE SHEET OR ANY OTHER DETAILS REGARDING I TS ASSETS AND LIABILITIES HAVE BEEN FILED. THE ENTRIES IN THE BA NK ACCOUNTS HAVE ALSO NOT BEEN EXPLAINED. ON THESE FACTS, I HOLD THAT THE BOOKS OF ACCOUNT WERE IMPROPER AS NO CORRECT PICTURE OF INCOME EARNED BY THE ASSE SSEE UNION WAS EMERGING. HENCE, I HOLD THAT THE AO IS JUSTIFIED I N REJECTING THE BOOKS OF ACCOUNT OF THE APPELLANT BY INVOKING THE PROVIS IONS OF SECTION 145(3) OF THE ACT AND IN ESTIMATING THE INCOME OF THE APPELLANT. HOWEVER, I FIND THAT THE APPLICATION OF NP RATE OF 6% ON THE GROSS RECEIPTS IS ON A HIGHER SIDE AS IN THE CASE OF SOM E OTHER TRUCK UNIONS THE HONBLE ITAT, AMRITSAR BENCH, AMRITSAR HAS UPH ELD THE NET PROFIT RATE OF 3% OF GROSS RECEIPTS. THIS FACT ALSO FIND MENTIONED IN PARA 15 OF THE AOS ASSESSMENT ORDER. THEREFORE, CONSIDERI NG THE TOTALITY OF THE FACTS AND CIRCUMSTANCES, I UPHOLD THE ASSESSME NT OF THE APPELLANT UNION TO THE EXTENT OF THE ESTIMATION @ 3% ON THE GROSS RECEIPT OF RS.1,65,82,047/- AS AGAINST THE APPLICATION OF 6% BY THE AO. THIS WORKS OUT TO RS.4,97,462/- (RELIEF RS.4,97,461/-). ALL THE EXPENSES ALLOWABLE UNDER THE PROVISIONS OF SECTION 30 TO 38 ARE DEEMED TO HAVE BEEN ALLOWED AND NO FURTHER DEDUCTION UNDER THESE SECTIONS IS TO BE ALLOWED. THE APPEAL OF THE APPELLANT IS, THUS, PARTLY ALLOW ED ON THIS GROUND. 9 AS REGARDS THE OTHER GROUNDS OF APPEAL, MY FINDIN GS REMAINS THE SAME AS CONTAINED IN MY ORDER DATED 14.10.2008 IN APPEA L NO.7- IT/CIT(A)/BTI/08-09, WHICH ARE AS UNDER: THAT THE LD. AO ALSO ERRED IN APPLYING MAXIMUM M ARGINAL RATE U/S 167B(1) OF THE ACT. THE ASSESSE TRUCK UNI ON IS A NON-PROFIT ASSOCIATION AND THE MEMBERS HAVE NOT ANY SHARE AT ALL IN THE INCOME OF THE ASSOCIATION. SO PROVISIONS OF SEC. 167B(1) ARE NOT APPLICABLE IN THE CASE OF ASSESSEE TRUCK UNION. YOUR HONOURS KI ND ATTENTION IS INVITED TO THE CIRCULAR NO.320 DATED 11.01.1982 OF THE CBDT DIRECTLY ON THE POINT. RECENTLY ITAT, AMRITAR IN THE CASE O F GURU NANAK DEV TRUCK OPERATOR UNION, BHIKHI IN APPEAL NO. ITA NO. 56/ASR/2007 HAVE ACCEPTED THE APPEAL OF THE TRUCK UNION ON THE POINT AND APPLIED NORMAL RATE. PHOTOCOPY OF THE JUDGMENT AND CIRCULA R ARE HEREBY ENCLOSED AS PER ANNEXURE D. I FIND TAT THE FACTS OF THE CASE OF THE APPELLANT ARE SIMILAR TO THE FACTS OF THE CASE DECIDED BY THE HONBLE ITAT, AMR ITSAR BENCH ( PARA 6, PAGE 2 & 3) OF THE ORDER OF THE ITAT, COY OF WH ICH IS PLACED ON RECORD). THEREFORE, THE AO IS DIRECTED TO CHARGE T AX AT NORMAL RATE. AS REGARDS CHARGING OF INTEREST U/S 234D AND WITH DRAWING THE INTEREST U/S 244A(3) OF THE ACT, THE SAME ARE MAND ATORY AND CONSEQUENTIAL IN NATURE. HOWEVER, THE AO IS DIRECT ED TO CHARGE/WITHDRAW INTEREST AS PER THE PROVISIONS OF LAW, AFTER GIVING EFFECT TO THIS APPEAL ORDER. 10. THE LD. COUNSEL FOR THE ASSESSE, MR. S.K. BANSA L, ADVOCATE, AT THE OUTSET ARGUED THAT THE ASSESSEE HAS WRONGLY FILED T HE RETURN OF INCOME BY DECLARING SOME INCOME. AS A MATTER OF FACT, THE INC OME ACCRUED TO THE ASSESSEE IS NOT A PROFIT CHARGEABLE TO TAX ON THE P RINCIPLE OF MUTUALITY. HE RELIED UPON THE DECISION OF THE HONBLE PUNJAB & HA RYANA HIGH COURT IN THE CASE OF CIT VS. ROHTAK PUBLIC GOODS MOTORS REPO RTED IN 26 INDIAN TAXATION REPORTS 246. THEREFORE, HE ARGUED THAT N ET PROFIT RATE OF 3% ON 10 GROSS RECEIPTS APPLIED BY THE CIT(A) IS NOT JUSTIFI ED AS THE COLLECTION FROM THE TRUCK UNION MEMBERS IS NOT TAXABLE AS COLLECTIO N FROM MEMBERS IS NOT THE INCOME. 11. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDER OF THE LD. CIT(A). 12. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THERE IS NO DISPUTE THAT THE ASSESSEE HAS NOT PRODU CED PROPER BOOKS OF ACCOUNT, DETAILS OF VOUCHERS AND EXPLANATION OF ENT RIES OF HUGE TRANSACTIONS IN RESPECT OF BANK ACCOUNTS MAINTAINED BY THE ASSES SEE. THEREFORE, THE ASSESSEE HAS MAINTAINED THE BANK ACCOUNT IN WHICH H UGE TRANSACTIONS ARE THERE WHICH HAVE NOT BEEN EXPLAINED. WITH REGARD TO THE RECEIPTS AND DISBURSEMENT IN AND OUT OF BANK ACCOUNT, COMPLETE D ETAILS HAVE NOT BEEN FURNISHED DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO INSPITE OF NUMBER OF OPPORTUNITIES TO THE ASSESSEE. IN THE ABS ENCE OF ANY DETAIL OR EXPLANATION ABOUT THE BANK ENTRIES IN THE BANK ACCO UNT, THE ASSESSEE CANNOT CLAIM PRINCIPLE OF MUTUALITY. IT IS NOT ON RECORD W HETHER THERE IS A TRADING BETWEEN PERSONS ASSOCIATING TOGETHER AS AN ASSOCIAT ION. WHETHER THERE WAS A PRINCIPLE OF MUTUALITY OR NOT? NOTHING HAS BEEN BRO UGHT ON RECORD OR WHETHER THE AMOUNT RECEIVED HAS BEEN EAR-MARKED FOR THE BENEFIT OF THE MEMBERS AS A WHOLE HAS NOT BEEN PROVED BEFORE ANY O F THE AUTHORITIES BELOW AND EVEN BEFORE US. ALSO WHETHER SURPLUS HAS BEEN U TILIZED FOR THE OBJECTS OF 11 THE UNION HAS NOT BEEN PROVED. IN FACT, THE SURPLUS CANNOT BE DEDUCED ACCURATELY IN THE ABSENCE OF ANY RECORD. THE ASSESS EE HAS NOT MAINTAINED ANY SUCH RECORD EVEN TO COMPUTE THE SURPLUS. THE ARGUME NTS OF THE LD. COUNSEL FOR THE ASSESSEE, MR. S.K. BANSAL, ADVOCATE, THAT T HE ASSESSEE IS NOT LIABLE TO MAINTAIN EVEN THE BOOKS OF ACCOUNT, DOES NOT COME UNDER THE PURVIEW OF THE AUDIT AND DOES NOT COME UNDER THE PURVIEW OF THE IN COME TAX, EVEN IF, NO EXPLANATION OR EVIDENCE OR RECORD IS MAINTAINED, CA NNOT BE ACCEPTED. IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, THE DE CISION OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. ROHTAK PUBLIC GOODS MOTOR UNION, ROHTAK, REPORTED IN (2005) 26 IT REP 2 46, DATED 02.12.2004, CANNOT BE MADE APPLICABLE. THE SAID CASE IS CLEARLY DISTINGUISHABLE FROM THE FACTS OF THE PRESENT CASE. THEREFORE, IN THE FACTS AND CIRCUMSTANCES, THE ORDER OF THE LD. CIT(A) ESTIMATING THE NET PROFIT RATE AT 3% ON THE GROSS RECEIPTS IS A CORRECT DECISION AND WE FIND NO INFIRMITY IN HIS ORDER, WHICH ACCORDING TO US, IS A REASONED ORDER. THUS, ALL THE GROUNDS OF T HE ASSESSEE ARE DISMISSED. 13. NOW, WE TAKE UP THE APPEALS OF ASSESSEES I.E. T HE TRUCK UNION, BAGHAPURANA, IN IT NO.95(ASR)/2010 AND THE GIDDERBA HA JANTA TRUCK UNION, IN ITA NO.237(ASR)/2010, WHERE THE FACTS AR E IDENTICAL TO THE FACTS IN THE CASE OF THE BIR BHOLA TRUCK UNION, BATHINDA , IN ITA NO.184(ASR)/2010. THEREFORE, FOLLOWING THE SAME DEC ISION AS IN THE CASE OF 12 THE BIR BHOLA TRUCK UNION, BATHINDA, HEREINABOVE, ALL THE GROUNDS BEING IDENTICAL AND ACCORDINGLY THESE APPEALS, ARE DISMI SSED. 13.1. THE CHARGING OF INTEREST UNDER SECTION 234D A ND WITHDRAWAL U/S 244A(3) ARE MANDATORY AND CONSEQUENTIAL IN NATURE. THUS, ALL THE GROUNDS OF THE ASSESSEE IN ITA NO.237(ASR)/2010 ARE DISMISSED. 14. NOW WE TAKE UP THE APPEAL OF THE REVENUE IN THE CASE OF M/S. THE GIDDERBAHA JANTA TRUCK UNION, IN ITA NO.263(ASR)/2 010. SINCE WE HAVE DISMISSED THE APPEAL OF THE ASSESSEE FOR THE REASON S MENTIONED HEREINABOVE, THEREFORE, THE APPEAL OF THE REVENUE IS ALSO DISMI SSED. 15. IN THE RESULT, ALL THE APPEALS IN ITA NO. 184( ASR)/2010, 95(ASR)/2010 AND 237(ASR)/2010 OF THE ASSESSEE AND IN ITA NO.263 (ASR)/2010 OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH JANUARY, 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18TH JANUARY, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. ALL THE ASSESSEE 2. THE JT. CIT R-2, DCIT, MOGA, ITO WARD 2(1), BATHI NDA 3. THE CIT(A) 4. THE CIT 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY