M/s. Daya Nand Contractor, Rohtak V. ITO, Rohtak

ITA 2409/DEL/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53099 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-11-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 28-10-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: K L GUGLANI
• Keywords: Depreciation
• Section: 142(1); 144

Judgement Text

ITA NO. 2409/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER I.T.A. NO. 2409/DEL/2010 A.Y. : 2007-08 M/S DAYA NAND CONTRACTOR, V&PO KHARANTI, DISTT. ROHTAK (HARYANA) (PAN: AADFD4239K) VS. INCOME TAX OFFICER, WARD-4, SONEPAT HQ AT ROHTAK (HARYANA) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : SH. K.L. GUGLANI, ADV. DEPARTMENT BY : SH. ROHIT GARG, SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 25.3.2 010 PERTAINING TO ASSESSMENT YEAR 2007-08. 2. THE GROUNDS RAISED READ AS UNDER:- (I) ON FACTS AND IN LAW, THE LD. ASSESSING OFFICER AND LD. COMMISSIONER OF INCOME TAX (APPEALS) HAVE BOTH ERRED IN JUSTIFYING ASSTT. FRAMED U/S 144 WITHOUT SERVING AN Y NOTICE U/S. 143(2) AND 142(1) ON THE ASSESSEE IN ACCORDANC E WITH ITA NO. 2409/DEL/2010 2 LAW AND HENCE THEIR ORDERS ARE WITHOUT JURISDICTION AND LIABLE TO BE CANCELLED. (II) ON FACTS AND IN LAW, THE LD. ASSESSING OFFICER /LD. COMMISSIONER OF INCOME TAX (APPEALS) HAVE ERRED IN CONFIRMING THE APPELLANTS INCOME AT ` 84,18,520/- INSTEAD OF ` 55,242/- SHOWN IN THE RETURN AND THUS MAKING HUGE ADDITION OF ` 83,63,280/- WITHOUT ANY LEGAL BASIS. (III) ON FACTS AND IN LAW, THE LD. COMMISSIONER OF I NCOME TAX (APPEALS) HAS ERRED IN FAILING TO ALLOW VALID CLA IM FOR EXPENSES, INTERESTS DEPRECIATION ETC. WITHOUT ANY D ISCUSSION AND ALSO IN CONFIRMING THE ILLEGAL ORDER OF THE ASS ESSING OFFICER WITHOUT CONSIDERING WRITTEN SUBMISSION AND ALSO WITHOUT ALLOWING ANY PROPER OPPORTUNITY OF BEING HE ARD. (IV) ON FACTS AND IN LAW, THE ORDERS OF THE LD. A SSESSING OFFICER AND LD. COMMISSIONER OF INCOME TAX (APPEALS) HAVE BEE N PASSED WITHOUT CONSIDERING THE PECULIAR FACTS OF TH IS CASE AND MERELY ON CONJECTURES AND SURMISES. (V) ON FACTS AND IN LAW, THE LD. COMMISSIONER OF INC OME TAX (APPEALS) HAS ERRED IN FOLLOWING HIS EARLIER ORDER IN THIS ASSESSEES APPEAL NO. 152/RT./2008-09 FOR ASSESSMEN T YEAR 2006-07 WHICH HAS ALREADY BEEN SET ASIDE BY THE HON BLE ITAT, NEW DELHI. (VI) THAT THE APPELLANT CRAVES LEAVE TO ADD, DELETE , MODIFY OR ABRIDGE ANY GROUNDS BEFORE THE ORDER ON APPEAL IS P ASSED. ITA NO. 2409/DEL/2010 3 3. IN THIS CASE THE ASSESSEE IS A FIRM DERIVING INC OME FROM THE CIVIL CONTRACT WORK. ASSESSEE FILED RETURN OF INCOME AT ` 55,242/- ON A TURNOVER OF ` 7,35,29,667/-. DURING THE ASSESSMENT THE ASSESSING OFFICER NOTED THAT ASSESSEE WAS NOT COOPERATIVE AN D NO BOOKS OF ACCOUNT WERE PRODUCED. HENCE, HE ADOPTED RATE OF P ROFIT 12% AND MADE THE ASSESSMENT AT ` 84,18,520/-. 4. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE INTER-ALIA SUBMITTED THAT NO REASONABLE OPPORTUNITY WAS AFFORDED AND RATE OF PROFIT @ 12% HAS BEEN APPLIED ARBITRARILY. LD. COMMISSIONER OF INCOME TAX (APPEALS) DID NOT ACCEPT THE CONTENTION S OF THE ASSESSEE AND CONFIRMED THE ASSESSING OFFICERS ACTION. 5. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPE AL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS IN LIGHT OF THE MATERIAL PRODUCED AND PRECEDENT RELIED UPON. LD. COUNSEL O F THE ASSESSEE CONTENDED THAT IN IDENTICAL SITUATION IN ASSESSEES OWN CASE FOR A.Y. 2006-07, THE TRIBUNAL HAD REMITTED THE MATTER TO THE FILE OF THE ASSESSING OFFICER. HENCE, HE PLEADED THAT THIS MAT TER SHOULD ALSO BE REMITTED TO THE FILE OF THE ASSESSING OFFICER TO CO NSIDER THE ISSUE AFRESH. UPON CAREFUL CONSIDERATION, WE ARE INCLIN ED TO REMIT THE MATTER TO THE FILES OF THE ASSESSING OFFICER TO CON SIDER THE ISSUE ITA NO. 2409/DEL/2010 4 AFRESH, AFTER GIVING AN ADEQUATE OPPORTUNITY TO TH E ASSESSEE OF BEING HEARD. ACCORDINGLY, THE ISSUE STANDS REMITTED TO THE FILES OF THE AO. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 04/11/2011. SD/- SD/- [I.P. BANSAL] [I.P. BANSAL] [I.P. BANSAL] [I.P. BANSAL] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] [SHAMIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 04/11/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY ORDER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES