ITO, Ward-1(2), Bhubaneswar, Bhubaneswar V. Dhirendra Panigrahi, Bhubaneswar

ITA 242/CTK/2014

• Counselvise Citation: 24222114 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 04-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 18-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUNIL KUMAR MISHRA
• Assessee Lawyers: SUVENDU DUTTA
• Keywords: Audit objection
• Section: 148; 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK . , & , BEFORE S/SHRI B. RAMAKOTAIAH, ACCOUNTA NT MEMBER & PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ! ./ ITA NO.242/CTK/2014 ( ' ' ' ' #$ #$ #$ #$ / ASSESSMENT YEAR :2007-2008) THE INCOME TAX OFFICER, WARD - 1(2), BHUBANESWAR. VS. DHIRENDRA KUMAR PANIGRAHI, OLD TOWN, HATA SAHI, BHUBANESWAR. ! ./ %& ! ./PAN/GIR NO. ABMPP 5628 C ( ' /APPELLANT ) .. ( ()' / RESPONDENT ) C.O.NO.40/CTK/2014(ARISING OUT OF ! ./ ITA NO.242/CTK/2014 ( ' ' ' ' #$ #$ #$ #$ / ASSESSMENT YEAR :2007-2008) DHIRENDRA KUMAR PANIGRAHI, OLD TOWN, HATA SAHI, BHUBANESWAR. VS. THE INCOME TAX OFFICER, WARD - 1(2), BHUBANESWAR ! ./ %& ! ./PAN/GIR NO. ABMPP 5628 C CROSS OBJECTOR .. ( ()' / RESPONDENT ) '+ - - - - /ASSESSEE BY : SHRI SUVENDU DUTTA %# - - - - /REVENUE BY : SHRI SUNIL KUMAR MISHRA '#. + / DATE OF HEARING : 4 TH NOV. 2015 /$ + /DATE OF PRONOUNCEMENT 5 TH NOV. 2015 0 0 0 0 / O R D E R PER PARTHA SARATHI CHAUDHURY, JM THIS APPEAL FILED BY THE REVENUE AND CROSS OBJECTIO N FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LD CIT(A)- 1, BHU BANESWAR DATED 26.3.2014, FOR THE ASSESSMENT YEAR 2007-08. ITA NO. 242/CTK/20154 &C.O. NO.40/CTK/2014 ASSESSMENT YEAR :2007-08 2 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING RS. 12,64,741/ - OUT OF THE ADDITION MADE BY THE AO ON ACCOUNT OF SUPRESSION OF WORK IN PROGRESS AS INCOME WITHOUT ALLOWING OPPORTUNITY TO THE AO IN VIOLATION OF RULE 46A. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) WAS NOT JUSTIFIED IN DELETING THE ADDITION OF RS. 2 ,57,923/- MADE BY THE AO ON ACCOUNT CONTRACT INCOME WITHOUT ALLOWING AN OPPORTUNITY TO THE AO IN VIOLATION OF RULE 46A. 3. FACTS IN BRIEF AS EMERGED FROM THE IMPUGNED ORDE R THAT THE ASSESSEE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF INSTALLATION OF AIR CONDITIONER ON CONTRACTUAL BASIS BY USING MATERIAL AND LABOUR. BESIDES THE INCOME FR OM INSTALLATION CHARGES, THE ASSESSEE ALSO DERIVES INCOME FROM PARTNERSHIP BUSIN ESS. THE ASSESSEE HAS MAINTAINED THE BOOKS OF ACCOUNT WHICH HAS BEEN DULY AUDITED U/ S.44AB AND NO DISCREPANCY HAS BEEN MENTIONED IN THE AUDIT REPORT. THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET HAVE BEEN PREPARED ON THE BASIS THE BOOKS OF ACCOUN T. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007-08 ON DTD.31 .10.2007 DISCLOSING TOTAL INCOME AT RS.4,50,700/-. THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED ON A TOTAL INCOME OF RS.5,14,770/-. DURING THE COURSE OF ASSES SMENT PROCEEDINGS THE A.O. INTER ALIA HAD DULY EXAMINED INCOME UNDER ALL THE HEADS O F INCOME ALONG WITH THE AUDITED PROFIT & LOSS ACCOUNT AND THE BALANCE SHEET INCLUDI NG ALL INCOME AND EXPENSES SHOWN IN THE PROFIT AND LOSS ACCOUNT. SUBSEQUENTLY, THE A.O. HAD ISSUED NOTICE U/S. 148 OF THE ACT ON THE BASIS OF AUDIT OBJECTION FOR THE REASON THAT (A) THE ASSESSEE HAS UNDERSTATED THE GROSS PROFIT OF RS. 12,73,786/- AND (B) ASSESSE E HAS SUPPRESSED INCOME FROM CONTRACT RECEIPT TO THE TUNE OF RS.2,57,923/-. THE ASSESSEE STRONGLY OBJECTED TO THE ISSUED OF NOTICE U/S. 148 OF THE ACT. THE OBJECTIO N OF THE ASSESSEE DID NOT FIND FAVOUR ITA NO. 242/CTK/20154 &C.O. NO.40/CTK/2014 ASSESSMENT YEAR :2007-08 3 BY THE AO AND THE A.O. HAS PASSED THE ORDER U/S. 14 7/143(3) OF THE ACT, INTER ALIA, MAKING FOLLOWING DISALLOWANCES: I) ALLEGED UNDERSTATED GROSS PROFIT : RS. 12,73,78 6/- II) ALLEGED INCOME FROM CONTRACT BUSINESS: RS. 2, 57,923/- BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. AFTER THE CONSIDERING THE SUBMISSIONS OF THE ASSESS EE AND ASSESSMENT ORDER, THE LD CIT(A) ALTHOUGH UPHELD THE VALIDITY OF NOTICE U/S.148 BUT ON MERITS PARTLY ALLOWED THE ASSESSEES APPEAL. HENCE, THE REVENUE IS IN APPEAL BEFORE US ON THE GROUND THAT THE LD CIT(A) HAS DELETED THE ADDITIONS WITHOUT ALLOWING OPPORTUNITY TO THE A O IN VIOLATION OF RULE 46A. THE ASSESSEE HAS FILED CROSS OBJECTION IN RESPECT OF UPHOLDING THE V ALIDITY OF NOTICE U/S.148 AND UPHOLDING THE ADDITION TO THE EXTENT OF RS.9,045/-. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD OF THE CASE. WE HAVE NOTICED THAT THE SOLE GRIEVANCE OF THE REVENUE IS A GAINST VIOLATION OF RULE 46A BY THE LEARNED COMMISSIONER (APPEALS) AND THAT THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS NOT MADE ANY SUBMISSIONS ON MERITS OF THE CASE. RUL E 46A OF THE INCOME TAX RULES 1962, PROVIDES THAT THE ASSESSEE SHALL NO T BE ENTITLED TO PRODUCE BEFORE THE COMMISSIONER (APPEALS) ANY EVIDENCE, WHETHER ORAL O R DOCUMENTARY, OTHER THAN THE EVIDENCE PRODUCED BY HIM DURING THE COURSE OF PROCE EDINGS BEFORE THE ASSESSING OFFICE. UPON CONSIDERATION OF THE ORDER OF THE LD CIT(A), WE OBSERVE THAT AFTER CONSIDERING THE RELEVANT MATERIALS/DOCUMENTS ON RECORD, WHICH WERE ALREADY FILED BEFORE THE AO, THE LD CIT(A) HAS DECIDED THE APPEAL ON MERITS. THERE WAS NO ADD ITIONAL EVIDENCE PRODUCED BEFORE THE LD CIT(A). HENCE, IT CANNOT BE SAID THAT THE LD CIT(A) HAS COGNIZED ANY FRESH EVIDENCE IN CONTRAVENTION OF RULE 46A. WE FIND NO MERIT IN TH E GROUNDS OF APPEAL RAISED BY THE ITA NO. 242/CTK/20154 &C.O. NO.40/CTK/2014 ASSESSMENT YEAR :2007-08 4 REVENUE AS ALSO ARGUMENTS ADVANCED BY LD. DR THAT T HERE IS ANY VIOLATION OF RULE 46A. THE LD CIT(A) HAS DECIDED THE APPEAL ON MERITS. IN VIEW OF ABOVE, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF THE LD CIT(A) . HENCE, WE UPHOLD THE ORDER OF THE LD CIT(A). 5. SINCE, WE HAVE UPHELD THE ORDER OF THE LD CIT(A ) IN TOTO, THE CROSS OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND HE NCE DISMISSED. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE AND CROSS OBJECTION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 /11/20 15 SD/- SD/- . ,/B.RAMAKOTAIAH , PARTHA SARATHI CHAUDHURY /ACCOUNTANT MEMBER / JUDICIAL MEMBER CUTTACK; '! DATED 5 /11 /2015 B.K.PARIDA, SPS 0 0 0 0 (+ (+ (+ (+ 3$+ 3$+ 3$+ 3$+ / COPY OF THE ORDER FORWARDED TO : 4 44 4 4 44 4 4 44 4 4 44 4 4 44 4 4 44 4 0' 0' 0' 0' / BY ORDER, SR. PRIVATE SECRETARY, , / ITAT, CUTTACK 1. ' / THE APPELLANT : THE INCOME TAX OFFICER, WARD- 1(2), BHUBANESWAR 2. ()' / THE CROSS OBJECTOR: DHIRENDRA KUMAR PANIGRAHI, OL D TOWN, HATA SAHI, BHUBANESWAR 3. 5 ( ) / THE CIT(A), BHUBANESWAR. 4. 5 / CIT , BHUBANESWAR 5. #6 (+' , / DR, ITAT, CUTTACK 6. 8 9. / GUARD FILE. )+ (+ //TRUE COPY//