Shri Chandrashekhar Agarwal, SUJANGARH V. ITO, RATANGARH

ITA 237/JODH/2004

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 82958 (ITAT-JODHPUR)
• Duration Of Justice: 10 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 29-04-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Presumptive income

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. M.A.NO. 100/JODH/2013 AND ITA NO. 237 /J U /2004 (A.Y. 1999 - 2000 ) SHRI CHANDRASHEKHAR AGARWAL, PROP. M/S. AGARWAL CONSTRUCTION CO. , SUJANGARH. VS. ITO, RATANGARH . PAN NO. ABXPA 1027 F (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE. DEPARTMENT BY : SHRI MAHESH KUMAR - D.R. DATE OF HEARING : 1 2 / 0 9 /201 4 . DATE OF PRONOUNCEMENT : 16 /0 9 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS MISC. APPLICATION ARISING OUT OF THE ORDER DATED 27/05/2008 IN I.T.A.NO. 237/JU/2004 FOR THE A.Y. 1999 - 2000 HAS BEEN FILED BY THE ASSESSEE STATING THEREIN AS UNDER: - 2 THAT BEING AGGRIEVED WITH THE ORDER PASSED BY THE WORTHY CIT{A} 3 RD , JAIPUR CONFIRMING THE PENALTY U/S 271 {1} {C} OF THE IT ACT RS. 5000/ - IMPOSED BY THE A.O., APPELLANT VIDE COVERING LETTER DT. 27/04/2004 {COPY ATTACHED EXP.L} HAD PREFERRED AN APPEAL BEFORE THE BEN CH OF YOUR HONORS IN PRESCRIBED APPEAL MEMO IN FORM 36 FILED IN TRIPLICATE TOGETHER WITH THE REQUISITE ATTACHMENTS INCLUDING A TREASURY RECEIPT OF RS. 500/ - PAID TOWARDS APPEAL FE E, BUT LATER ON VIDE LETTER DT. 27/04/2004, {COPY ATTACHED } ON BEING REQUIRED TO FURNISH TWO COPIES OF CIT{A}ORDER OF QUANTUM APPEAL, THE APPELLANT VIDE HIS LETTER DT. 30/01/2006{COPY ATTACHED EXP.2} FULFILLED THE AFORESAID REQUIREMENT BY FURNISHING TWO COPIES OF QUANTUM APPEAL ORDER PASSED BY THE CIT {A}. BUT ONCE AGAIN VIDE YOUR S OFFICE LETTER DT. 20/03/2004,{COPY ATTACHED} APPELLANT ASKED TO REMOVE THE DEFECT I.E. SHORT PAYMENT OF APPEAL FEE BY RS. 1000/ - SERVED UPON APPELLANT ON 25/06/2006 DEPOSITED THE ALLEGED SHORT PAYMENT RS. 1000/ - AND VIDE APPELLANTS LETTER DT . 06/07/200 7{COPY ATTACHED WITH TREASURY RECEIPT OF RS. 1000/ - E XP.3} SENT THE SAME TO Y OUR HONOR S OFFICE. IT HAS FURTHER BEEN STATED AS UNDER: - THAT FROM THE PERUSAL OF ORDER PASSED BY THE THEN HON. BENCH ON 27/05/2008, REVEALS THAT THEY HAD WRONGLY TREATED THE APPEAL AS DEFECTIVE ON ONLY GROUND OF SHORT PAYMENT OF APPEAL FEE RS.' 1000/ - FOR WHICH YOUR HONORS KIND ATTENTION IS BEING INVITED TOWARDS THE FACT THAT APPELLANT HAD ALREADY PAID THE ALLEGED SHORT PAYMENT OF APPEAL FEE RS. 1000/ - ON 06/07/2007,{EXP. - 3} AND THE SAME HAD ALSO DULY BEEN ACKNOWLEDGED BY YOUR HONORS OFFICE ON 10/07/2007, {EXP.6} BUT THE THEN BENCH APPEARS TO HAD WRONGLY IGNORED THE SAID TREASURY RECEIPT. APART FROM THIS , THE THEN HON. BENCH ALSO IGNORED THE PAPER BOOK CONTAINING , WRIT TEN SUBMISSIONS AS WELL CERTAIN DOCUMENTARY EVIDENCES FILED WITH THE OFFICE OF THE THEN BENCH VIDE LETTER DT. 23/05/2006{EXP - 4} AND ALSO DULY ACKNOWLEDGED ON 26/05/2008, {EXP.5} BUT IGNORING ALL SUCH DOCUMENTS, THE THEN BENCH WRONGLY TREATED THE APPEAL AS DEFECTIVE AND DISMISSED ACCORDINGLY, HENCE, IT IS HUMBLY PRAYED THAT THE M/A FILED MAY KINDLY BE ACCEPTED AND THE APPEAL BE DECIDED ON MERITS AFTER CONSIDERATION OF PAPER BOOK AND ITS ATTACHMENTS FILED WITH YOUR HONORS OFFICE ON 26/05/2008 AND ALSO AFTER CONSIDERING THE WELL WRITTEN SUBMISSIONS IN FURTHERANCE' OF EARLIER WS FILED HEREWITH. 3 2 AT THE TIME OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE. WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED D.R. AND ALSO THE WRITTEN SUBMISSIONS OF THE ASSESSEE FURNISHED VIDE APPLICATION DATED 08/09/2014 . THE CONTENTS OF THE SAID APPLICATION WERE NOT REBUTTED BY THE LEARNED D.R. WE , THEREFORE, ARE OF THE VIEW THAT INADVERTENTLY AND DUE TO OVERSIGHT, THE APPEAL OF THE ASSESSEE WAS DISMISSED ON AC COUNT OF SHORT PAYMENT OF FEE , HOWEVER, THE MATERIAL AVAILABLE ON THE RECORD REVEALS THAT THE ASSESSEE REMOVED THE DEFECT BY DEPOSITING REQUISITE FEE BEFORE HEARING OF THE APPEAL ON 27/05/2008 . WE , THEREFORE, RECALL THE ORDER DATED 27/05/2008 AND THE APPEAL OF THE ASSESSEE IN I.T.A.NO. 237/JU/2004 IS RESTORED. 3. SINCE THE ISSUE INVOLVED IN THIS APPEAL IS VERY SMALL RELATING TO PENALTY OF RS. 5,000/ - LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) AND THE WRITTEN SUBMISSIONS DATED 08/09/2014 FILED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS ALSO AV A ILA BLE ON RECORD. WE HAVE CONSIDERED THAT SUBMISSION ALONG WITH THE SUBMISSIONS OF LEARNED D.R. 4. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE WAS DERIVING INCOME FROM CONTRACT WORK. HE FILED THE RETURN OF INCOME ON 4 31/03/2010 DECLARING AN INCOME OF RS. 7 4,940/ - U/S. 44A D OF THE ACT. THE ASSESSEE HAD SHOWN GROSS RECEIPTS AT RS. 15,83,890/ - AND CLAIMED DEDUCTION OF RS. 7,55,157/ - FOR MATERIAL SUPPLIED BY THE DEPARTMENT AND HAD SHOWN NET PROFIT @ 8% ON THE RECEIPTS OF RS. 8,28,733/ - (RS. 15,83,890/ - ( - ) RS. 7,55,157/ - ) . HOWEVER, THE ASSESSING OFFICER WAS OF THE VIEW THAT THE MATERIAL SUPPLIED BY THE DEPARTMENT CANNOT BE DEDUCTED FROM THE GROSS RECEIPTS. HE WORKED OUT THE PROFIT ON THE GROSS RECEIPTS OF RS. 15,83,890/ - AND ALSO ESTIMATED THE TRUCK INCOME AT RS. 24,000/ - U/S. 44AE OF THE ACT . THE ASSESSING OFFICER ALSO MADE ANOTHER ADDITIONS OF RS. 8,636/ - ON ACCOUNT OF INTEREST AND RS. 14,940/ - ON ACCOUNT OF DIFFERENCE IN BANK BALANCE. ACCORDINGLY, INCOME WAS ASSESSED AT RS. 1,72,460/ - . THE ASSESSING OFFICER ALSO INITIATED THE PENALTY PROCEEDINGS U/S. 271(1)(C) OF THE ACT BY CONSIDERING RS. 24,000/ - AS CONCEALED INCOME AND LEVIED P ENALTY OF RS. 5,000/ - . 5. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) , WHO SUSTAINED THE PENALTY LEVIED BY THE ASSESSING OFFICER. NOW THE ASSESSEE IS IN APPEAL. 6 . LEARNED COUNSEL FOR THE ASSESSEE IN HIS WRITTEN SUBMISSION HAS STATED THAT THE ASSESSING OFFICER MADE THE ADDITION OF RS. 24,000/ - AS 5 PROVIDE D U/S. 44AE , BUT COULD NOT BRING ANYTHING ON RECORD WHICH PROVED THAT THE ASSESSEE HAD CONSCIOUSLY CONCEALED THE INCOME OR FURNISHED INACCURATE PARTICULARS OF INCOME. IT HAS FU RTHER BEEN STATED THAT THE ASSESSING OFFICER FAILED TO APPRECIATE THAT SI N C E THE ASSESSEE WAS AN ILLITERATE PETTY CONTRACTOR AND RECEIVED PAYMENTS ONLY AFTER DEDUCTION OF TAX AT SOURCE. THEREFORE, THE PRESUMPTIVE INCOME OMITTED TO BE DISCLOSED IN THE RETURN OF INCOME WAS BONAFIDE. IT H AS FURTHER BEEN STATED THAT THE ASSESSING OFFICER FAILED TO APPRECIATE THAT THE SURRENDER OF INCOME WAS OUTCOME OF THE AGREEMENT SETTLED DURING THE COURSE OF HEARING OF THE CASE , WHI CH WAS EVIDENT FROM THE LETTER OF THE ASSESSEE DATED 06/02/2001 BY WHICH SURRENDER HAD BEEN OFFERED BY THE ASSESSEE WITH A REQUEST NOT TO IMPOSE PENALTY AND THE ASSESSEE SHALL NOT FILE ANY APPEAL AGAINST THE ADDITION TO BE MADE. RELIANCE WAS PLACED ON THE FOLLOWING CASE LAWS: - 1) NARENDRA KUMAR VS. ITO (2005) 94 TTJ (JODH) 156 2) SIR SHADI LAL SUGAR & GENERAL MILLS VS. CIT (1987) 64 CTR (SC) 199 3) CIT VS. TYARA MAL BAL CHAND (1987) 62 CTR (RAJ) 216 . 4) CIT VS. RAHMAT KHAN BIRBAL KHAN BADRUDDIN & PARTY (1999) 155 CTR (RAJ.) 269 . 5) KANHAIA LAL DOSHI VS. ACIT (1996) 56 TTJ (JP) 207. 6) (2012) 349 ITR 413 (AP) 6 7 . IN HIS RIVAL SUBMISSIONS, LEARNED D.R. SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW . 8 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED D.R. AND THE WRITTEN SUBMISSIONS OF THE ASSESSEE . IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSING OFFICER MADE CERTAIN ADDITIONS BUT INITIATED PENALTY PROCEEDINGS ONLY IN RESPECT OF PRESUMPTIVE INCOM E U/S. 44AE OF THE ACT AMOUNTING TO RS. 24,000/ - . IT IS ALSO NOTICE D THAT THE ASSESSEE HAD WRITTEN A LETTER TO THE ASSESSING OFFICER (COPY OF WHICH IS PLACED ON RECORD) THAT HE AGREED FOR PRESUMPTIVE ADDITION OF RS. 24,000/ - AND WILL ALSO NOT FILE ANY APPEAL , IF THE PENALTY PROCEEDINGS ARE NOT MADE. IT SEEMS THAT THE ASSESSING OFFICER PARTLY AGREED WITH THE REQUEST OF THE ASSESSEE BECAUSE NO PENALTY PROCEEDINGS WERE INITIATED IN RESPECT OF OTHER ADDITIONS . WE THEREFORE, CONSIDERING THE PECULIAR FACTS OF THIS CASE AND SMALLNESS OF THE AMOUNT OF PENALTY, ARE OF THE VIEW THAT THE PENALTY AMOUNTING TO RS. 5,000/ - LEVIED BY THE ASSESSING OFFICER WAS NOT JUSTIFIED IN THIS CASE BECAUSE THE ASSESSING OFFICER PARTLY ACCEPTED THE REQUEST OF THE ASSESSEE . HE OUGHT TO HAVE EITHER REJECTED OR ACCEPTED THE REQUEST OF THE ASSESSEE IN TOTO, BUT NOT IN PART . IN THAT VIEW OF THE MATTER, WE 7 ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN SU S TAINING THE PENALTY LEVIED BY THE ASSESSING OFFICER , A CCORDING LY, THE SAME IS DELETED. 9 . IN THE RESULT, MISC. APPLICATION AS WELL AS APPEAL OF THE ASSESSEE IS ALLOWED. ( ORDER PRONOUNCED IN THE COURT ON 16 TH SEPTEMBER , 201 4) . S D/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16 TH SEPTEMBER , 201 4 . VR/ - COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .