Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 98942 (ITAT-INDORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 18 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-09-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
03-08-2015
Assessment Year
2008-2009
Appeal Filed On
13-04-2015
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, J.M. AND SHRI B.C.MEENA, A.M. I.T.A.NO.242/IND/2015 A.Y. : 2008-09 MR.SATYA PRAKASH TIWARI, ITO, 3(1), BHOPAL VS BHOPAL APPELLANT RESPONDENT P.A.N. NO A DJPT8785F APPELLANT BY SHRI JATIN SEHGAL, ADV. RESPONDENT BY SHRI RAHUL RAMAN, DR DATE OF HEARING : 04.08.2015 DATE OF PRONOUNCEMENT : 01.09 .2015 -: 2: - 2 O R D E R PER GARASIA, J.M. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF CIT(A), BHOPAL, DATED 26.12.2014 FOR THE ASSESSM ENT YEAR 2008-09. 2. WE FIND THAT THERE WAS DELAY OF 25 DAYS IN FILING T HE APPEAL. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED AN AFFIDAVIT IN WHICH HE HAS EXPLAINED THAT HE WAS PRE-OCCUPIED IN SCRUTINY ASSESSMENT. THEREFORE, DUE TO HEAVY PRESSU RE OF WORK, THE ASSESSEE COULD NOT FILE THE APPEAL. THERE FORE, HE HAS REQUESTED TO CONDONE THE DELAY. THE ASSESSEE HAS RE ASONABLE CAUSE. WE, THEREFORE, CONDONE THE DELAY. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER. 4. THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FR OM PROFESSION OF PROVIDING CONSULTANCY TO VARIOUS PRIV ATE UNDERTAKINGS IN THE NAME OF M/S. CREATIVE ENVIRO SE RVICES. RETURN HAS BEEN FILED ON 30.09.2008 DECLARING INCOM E OF RS. -: 3: - 3 1,57,795/-. VIDE ORDER DATED 19.11.2010 PASSED U/S 143(3), THE ASSESSEE HAS BEEN ASSESSED ON TOTAL INCOME OF R S. 12,45,765/- BY ESTIMATING NET PROFIT OF RS. 12,50,7 35/- @ 60% OF RECEIPTS OF RS. 20,84,558/- AND ALLOWING DEDUCTI ON U/S 80C AT RS. 4,970/-. THE ASSESSEES CONSULTANCY RECEIPT HAS BEEN FOUND AT RS. 20,84,558/- AS PER ITD AND TDS CERTIFI CATES. HOWEVER, THE ASSESSEE HAS NOT MAINTAINED BOOKS OF A CCOUNT AND HAS NEITHER GOT THEM AUDITED. THE AO HAS ALSO I MPOSED PENALTY OF RS. 25,000/- AND RS. 10,423/- U/S 271A A ND 271B RESPECTIVELY BY SEPARATE PENALTY ORDERS. VIDE IMPUG NED ORDER, PENALTY OF RS. 4,00,000/- HAS BEEN IMPOSED FOR FURN ISHING OF INACCURATE PARTICULARS OF HIS INCOME BY THE ASSESSE E. 5. THE MATTER CARRIED TO LD. CIT(A). THE LD. CIT(A) HA S DISMISSED THE APPEAL. 6. THE LD. AUTHORIZED REPRESENTATIVE HAS FILED THE WRI TTEN SUBMISSION, WHICH WAS FILED BEFORE THE CIT(A) AND L D. AUTHORIZED REPRESENTATIVE HAS SUBMITTED BEFORE US T HAT THE ISSUE IN CONTROVERSY IS COVERED BY THE JURISDICTION AL HIGH COURT IN THE CASE OF CIT VS. SHIVNARAYAN JAMNALAL A ND CO., (1998) 232 ITR 311 (M.P.), WHEREIN IT WAS HELD THAT IF THE -: 4: - 4 REJECTION OF BOOKS AND ESTIMATION OF PROFIT BY APPL YING FLAT RATE, THERE WAS NO FRAUD OR GROSS OR WILLFUL NEGLECT ON T HE PART OF THE ASSESSEE, PENALTY U/S 271(1)(C) CANNOT BE IMPOSED. 7. THE LD. AUTHORIZED REPRESENTATIVE FURTHER SUBMITTED THAT THE ASSESSEE DERIVES THE INCOME FROM PROFESSIO NAL PROVIDING CONSULTANCY TO VARIOUS PRIVATE UNDERTAKIN GS IN THE NAME OF M/S. CREATIVE ENVIRO SERVICES. THE ASSESSEE HAS SHOWN GROSS RECEIPTS. HOWEVER, AS PER THE TDS CERTI FICATE, THE TOTAL RECEIPTS IS RS. 20,84,558/-. THE ASSESSEE HAS NOT MAINTAINED ANY BOOKS OF ACCOUNT AND NOT PREPARED AN Y STATEMENT OF AFFAIRS. THEREFORE, THE AO HAS MADE TH E ASSESSMENT ON ESTIMATE BASIS AND 60 % OF THE TOTAL RECEIPTS WAS TAKEN AS PROFIT AND ASSESSMENT WAS MADE. THE IN COME OF THE ASSESSEE WAS ESTIMATED BY THE ASSESSING OFFICER . THEREFORE, THE APPEAL MAY BE ALLOWED. NO PENALTY CA N BE IMPOSED. 8. ON THE OTHER HAND, THE LD. DR RELIED ON THE ORDER OF THE AO. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES. THE ASSESSEE IS AN INDIVIDUAL, SOLE PROPR IETORY -: 5: - 5 CONCERN IN WHICH HE IS GETTING THE INCOME FROM VARI OUS SOURCES, LIKE CONTRACTORS & SUB CONTRACTORS, LABOUR CONTRACTOR AND OTHER INCOME FROM ENVIRONMENTAL CONSULTANCY ETC . THE ASSESSEE IS AN INDIVIDUAL HAVING INCOME FROM BUSINE SS & PROFESSION PROVIDING UNORGANIZED JOB TO THE VARIOUS PRIVATE AND PUBLIC SECTOR COMPANIES, WHO HAVE DEDUCTED TDS ON SUCH INCOME SAND ISSUED FORM 16A. THE ASSESSEES GROSS TURNOVER DURING THE YEAR UNDER CONSIDERATION WAS RS. 20,34,5 58/- AND THE ASSESSEE HAS ESTIMATED PROFIT @ 8% OF THE GROSS TURNOVER AS RS. 1,62,765/- AS PER THE PROVISIONS OF SECTION 44AD OF THE ACT. THE AO HAS ESTIMATED 40% OF THE RECEIPT AS EX PENSES AND ESTIMATED 60% THEREON AS NET PROFIT. THEREFORE, THE PENALTY IS IMPOSED ON THE SAME. WE FIND THAT THE ASSESSEES PR OFIT IS ESTIMATED AND WHEN THE ASSESSEE HAS PRODUCED ALL TH E BOOKS, HE HAS FILED THE RETURN OF INCOME, THEN NO PENALTY CAN BE LEVIED. HON'BLE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT VS. SHIVNARAYAN JAMNALAL AND CO., WHEREIN THE SIMILAR I SSUE WAS DECIDED BY THE TRIBUNAL AND WHEREIN IT IS HELD THAT WHEN THE ASSESSEE HAS PLACED BEFORE THE AUTHORITY WHATEVER T HE ACCOUNTS IT HAD MAINTAINED WHETHER THEY WERE PROPER LY -: 6: - 6 MAINTAINED OR NOT IT HAD WITHHELD OR CONCEALED ANY MATERIAL TO DEFRAUD THE AUTHORITY, THEN THE PENALTY CAN BE LEVI ED, BUT IF THE ASSESSEE HAS NOT WITHHELD ANY INFORMATION, THEN PENALTY CANNOT BE LEVIED. THEREFORE, WE ARE OF THE VIEW THA T THE PENALTY CANNOT BE LEVIED. MOREOVER, WE ALSO FIND THE DECISI ON OF RELIANCE PETRO PRODUCTS (P) LTD. (2010) 322 ITR 158 (SC), WHEREIN IT IS HELD THAT WHEN THE ASSESSEE HAS DISCL OSED ALL THE MATERIAL FACTS BEFORE THE AO AND IF THE CLAIM O F THE ASSESSEE IS NOT ACCEPTED BY THE REVENUE AUTHORITIES , THEN NO PENALTY U/S 271(1)(C) OF THE ACT CAN BE LEVIED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 1 ST SEPTEMBER, 2015. SD/- (B. C. MEENA) ACCOUNTANT MEMBER SD/- ( D.T.GARASIA) JUDICIAL MEMBER DATED :1 ST SEPTEMBER, 2015. CPU* -: 7: - 7 2427
Mehul