Ch, Venkateswara Rao, Palakol V. THE ITO, WARD - 1, Palakol

ITA 247/VIZ/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2166 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 19-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G GURUSWAMY
• Assessee Lawyers: S RAMA RAO
• Keywords: Rejection of books of accounts; Revision of order; Opportunity of being heard; Assessment record
• Section: 143(3); 263

Judgement Text

ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , ' BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./ I.T.A.NO.247/VIZAG/2014 ( / ASSESSMENT YEAR : 2009-10) CH. VENKATESWARA RAO, PALAKOL VS. ITO, WARD-1, PALAKOL [ PAN: ACMPC0598F] / APPELLANT) / RESPONDENT ) / APPELLANT BY : SRI S. RAMA RAO, AR #$ / RESPONDENT BY : SRI G. GURUSWAMY, DR ( / DATE OF HEARING : 06.01.2016 ( / DATE OF PRONOUNCEMENT : 22.01.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER OF CIT, RAJAHMUNDRY DATED 14.3.2014 U/S 263 OF THE INC OME-TAX, 1961 (HEREINAFTER CALLED AS THE ACT) AND IT PERTAINS T O THE ASSESSMENT YEAR 2009-10. ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 2 2. THE BRIEF FACTS OF THE CASE, ARE THAT THE ASSESS EE IS AN INDIVIDUAL ENGAGED IN THE BUSINESS OF EXECUTION OF CIVIL CONTR ACT WORKS, FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ON 25.9.2009 DECLARING A TOTAL INCOME OF RS.9,00,680/-. THE ASS ESSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 26.9.2011 DETERM INING TOTAL INCOME OF RS.20,59,402/-. THE ASSESSING OFFICER, WHILE COM PLETING ASSESSMENT U/S 143(3) OF THE ACT, ESTIMATED THE NET PROFIT FRO M GROSS RECEIPTS AT 6%, BESIDES MAKING OTHER ADDITIONS. 3. THE CIT, RAJAHMUNDRY ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT DATED 23.9.2013 AND PROPOSED TO REVISE THE ASSE SSMENT ORDER. THE CIT, PROPOSED TO REVISE THE ASSESSMENT ORDER FOR TH E REASON THAT ON EXAMINATION OF ASSESSMENT RECORDS, IT WAS NOTICED T HAT THE A.O. HAS NOT EXAMINED CERTAIN ISSUES, WHICH RENDER THE ASSESSMEN T ORDER ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF T HE REVENUE IN TERMS OF SECTION 263 OF THE ACT. THE CIT, IN THE SAID SHOW CAUSE NOTICE OBSERVED THAT THE A.O. HAS ERRONEOUSLY ESTIMATED NET PROFIT @ 6% ON GROSS RECEIPTS. THE CIT FURTHER WAS OF THE OPINION THAT THE A.O. BIFURCATED THE TURNOVER INTO MAIN CONTRACT WORKS AND SUB CONTRACTS GIVEN TO OUTSIDERS AND TAKEN COMMISSION @ 2% ON SUB CONTRACTS AND ESTI MATED NET PROFIT @ 6% ON THE REMAINING WORKS, WHICH IS QUITE AGAINST THE PRINCIPLE LAID ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 3 DOWN BY THE ITAT, IN OTHER SIMILAR CASES. THE CIT FURTHER WAS OF THE OPINION THAT THE ASSESSEE HAS INVESTED A SUM OF RS. 40 LAKHS IN M/S. BLUE STAR CONSTRUCTIONS AND THERE IS NOTHING ON RECORD R EGARDING VERIFICATION OF SOURCE FOR THE INVESTMENTS. WITH THESE OBSERVAT IONS, THE CIT WAS OF THE OPINION THAT THE ORDER U/S 143(3) OF THE ACT IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE ON THESE COUNTS. THEREFORE, ISSUED SHOW CAUSE NOTICE AND ASKED AS TO WHY THE ORDER SHOULD NOT BE REVISED U/S 263 OF THE ACT. 4. IN RESPONSE TO SHOW CAUSE NOTICE, THE ASSESSEE H AS FILED WRITTEN SUBMISSIONS VIDE HIS LETTER DATED 19.11.2013 AND CO NTENDED THAT THE ORDER PASSED BY THE A.O. WAS NOT ERRONEOUS IN SO FA R AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THE A.O. HAS VER IFIED THE DETAILS WITH REGARD TO THE ESTIMATION OF NET PROFIT FROM THE CON TRACT BUSINESS. THE ASSESSEE FURTHER SUBMITTED THAT THE A.O. ADOPTED TH E NET PROFIT OF 6%, BASED ON THE ORDER OF PREDECESSOR ASSESSING OFFICER , IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS, WHEREIN THE DCIT, CENTRAL CIRCLE RAJAHMUNDRY HAS ESTIMATED NET PROFIT @ 6% ON GROSS RECEIPTS. AS FAR AS OTHER ISSUES RAISED BY THE CIT, THE ASSESSEE SUB MITTED THAT ALL THE ISSUES HAVE BEEN VERIFIED BY THE A.O. IN THE ASSESS MENT PROCEEDINGS, ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 4 THEREFORE, FOR THE SAME REASON YOU CANNOT REVISE TH E ASSESSMENT ORDER U/S 263 OF THE ACT. 5. HOWEVER, THE CIT(A) AFTER CONSIDERING THE EXPL ANATIONS OFFERED BY THE ASSESSEE, HELD THAT THE A.O. DID NOT VERIFIE D THE ABOVE ISSUES AT THE TIME OF COMPLETING ASSESSMENT U/S 143(3) OF THE ACT. THEREFORE, THE ASSESSMENT ORDER DATED 26.9.2011 NEEDS TO BE REVISE D AS PREJUDICE WAS CAUSED TO THE INTEREST OF THE REVENUE BECAUSE OF TH E ERRORS COMMITTED BY THE A.O. THEREFORE, THE ASSESSMENT ORDER PASSED BY THE A.O. IS SET ASIDE ON THE ABOVE ISSUES TO THE EXTENT INDICATED I N HIS ORDER AND DIRECTED THE A.O. TO PASS FRESH ASSESSMENT ORDER WI THIN THE TIME ALLOWED, AFTER GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. AGGRIEVED BY THE CIT ORDER, THE ASSESSEE IS IN APPE AL BEFORE US. 6. THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSE E SUBMITTED THAT THE CIT WAS ERRED IN REVISING THE ASSESSMENT ORDER U/S 263 OF THE ACT, AS THE A.O. HAS VERIFIED ALL THE ISSUES POINTED OUT BY THE CIT IN THE REVISION PROCEEDINGS. THE A.R. FURTHER SUBMITTED T HAT THE A.O. HAS VERIFIED THE ISSUE OF ESTIMATION OF NET PROFIT AND CHOSE TO ADOPT 6% NET PROFIT ON GROSS RECEIPTS, BASED ON HIS PREDECESSOR S ASSESSMENT ORDER IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR S, WHEREIN THE DCIT, CENTRAL CIRCLE FOR THE ASSESSMENT YEAR 2007-08 HAS ADOPTED 6% NET ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 5 PROFIT FROM THE CONTRACT BUSINESS, WHICH IS EVIDENT FROM THE PARAGRAPH 1 OF THE ASSESSMENT ORDER. THE A.R. FURTHER SUBMITTE D THAT THE ASSESSMENT ORDER IS NOT ERRONEOUS IN SO FAR AS IT I S PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THE A.O. HAS MADE DETAI LED ENQUIRIES WITH REGARD TO THE ISSUE RAISED BY THE CIT AT THE TIME O F ASSESSMENT PROCEEDINGS. THE A.R. FURTHER SUBMITTED THAT AS FA R AS THE OTHER ISSUES RAISED BY THE CIT IN THE REVISION PROCEEDINGS, THE ASSESSING OFFICER HAS PASSED CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 263 OF THE ACT, WHEREIN HE HAS ACCEPTED EXPLANATIONS WITH REGARD TO THE OTHER ISSUES RAISED BY THE CIT, EXCEPT ESTIMATION OF NET PROFIT. THEREFORE, I T IS ABUNDANTLY CLEAR THAT THE CIT HAS REVISED ASSESSMENT ORDER PURELY ON SUSPICION AND SURMISES, WITHOUT BEING ANY COGENT REASONS. THE A. R. FURTHER SUBMITTED THAT AS FAR AS THE ISSUE OF ESTIMATION OF NET PROFI T IS CONCERNED, ONCE THE A.O. HAS VERIFIED THE ISSUE AND CHOSE TO ADOPT A PA RTICULAR RATE OF NET PROFIT BASED ON HIS OWN JUDGEMENT, THE CIT CANNOT S TEP INTO THE SHOES OF THE ASSESSING OFFICER TO REPLACE HIS VIEWS. THE REFORE, THE ORDER PASSED BY THE CIT SHOULD BE QUASHED. ON THE OTHER HAND, THE LD. D.R. STRONGLY SUPPORTED THE ORDER OF CIT(A). 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATER IALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHOR ITIES BELOW. THE ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 6 CIT ASSUMED THE JURISDICTION TO REVISE THE ASSESSME NT ORDER FOR THE REASON THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUI RY AT THE TIME OF ASSESSMENT PROCEEDINGS, THEREBY THE ASSESSMENT ORDE R IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE CIT HAS RAISED NUMBER OF ISSUES IN THE REVISION PROCEEDINGS , RIGHT FROM ESTIMATION OF NET PROFIT TO INVESTMENTS MADE IN OTH ER FIRMS. ON PERUSAL OF THE SHOW CAUSE NOTICE ISSUED BY THE CIT, ASSESSM ENT ORDER AND PAPER BOOK FILED BY THE ASSESSEE, WE FIND THAT ALL THE IS SUES QUESTIONED BY THE CIT IN THE REVISION PROCEEDINGS, WERE ALREADY EXAMI NED BY THE A.O. AT THE TIME OF ASSESSMENT PROCEEDINGS. THEREFORE, THE CIT WAS NOT CORRECT IN OBSERVING THAT THE A.O. DID NOT CONDUCT PROPER V ERIFICATION OF THE ISSUES BEFORE COMPLETION OF ASSESSMENT. 8. THE CIT ASSUMED THE JURISDICTION TO REVISE THE A SSESSMENT ORDER ON THE SOLE GROUND THAT THERE IS A LACK OF ENQUIRY ON THE PART OF THE A.O. IN EXAMINING THE ISSUES REFERRED IN THE SHOW CAUSE NOTICE. THE LD. A.R. OF THE ASSESSEE SUBMITTED THAT THE CIT WAS NOT CORR ECT IN COMING TO THE CONCLUSION THAT THE A.O. DID NOT CONDUCT PROPER ENQ UIRY AT THE TIME OF ASSESSMENT, AS THE A.O. HAS EXAMINED ALL THE ISSUES WHICH ARE SUBJECT MATTER OF REVISION PROCEEDINGS. THE A.R. FURTHER S UBMITTED THAT THE A.O. HAS PASSED CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 26 3 OF THE ACT TO GIVE ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 7 EFFECT TO CIT DIRECTIONS, WHEREIN HE HAS ACCEPTED A LL THE ISSUES RAISED BY THE CIT, EXCEPT ESTIMATION OF NET PROFIT, WHERE THE A.O. HAS MADE ADDITIONS AS PER THE DIRECTIONS OF THE CIT. WE HAV E EXAMINED THE CONSEQUENTIAL ORDER PASSED UNDER SEC. 143(3) R.W.S. 263 OF THE ACT, WHICH IS AVAILABLE IN PAPER BOOK AND FOUND THAT THE A.O. HAS ACCEPTED ALL THE ISSUES RAISED BY THE CIT, EXCEPT ESTIMATION OF NET PROFIT. THEREFORE, THE EFFECTIVE ISSUE WHICH LEADS TO REVIS ION OF ASSESSMENT ORDER IS WHETHER THE A.O. WAS RIGHT IN ESTIMATING T HE NET PROFIT @ 6% ON GROSS RECEIPTS. THE ASSESSEES CONTENTION IS THAT THE CIT WAS NOT CORRECT IN REVISION OF ASSESSMENT ORDER FOR ESTIMAT ING THE NET PROFIT. THE A.O. HAS ESTIMATED THE NET PROFIT BASED ON THE ORDE R OF HIS PREDECESSOR ASSESSING OFFICER, IN ASSESSEES OWN CASE FOR THE E ARLIER ASSESSMENT YEAR. WE HAVE EXAMINED THE ASSESSMENT ORDER PASSED BY THE A.O. WHEREIN THE A.O. HAS PASSED A REMARK IN THE ASSESSMENT ORDE R ABOUT THE CONSISTENCY FOLLOWED BY THE DEPARTMENT FOR ESTIMATI ON OF THE NET PROFIT. THE CIT WAS OF THE OPINION THAT THE A.O. HAS ERRED IN ESTIMATING NET PROFIT @ 6%. WE DO NOT AGREE WITH THE STAND TAKEN BY THE CIT FOR THE REASON THAT ONCE, THE A.O. HAS EXAMINED THE ISSUE A ND CHOSE TO APPLY PARTICULAR RATE OF NET PROFIT, THEN THE CIT CANNOT STEP INTO THE SHOES OF A.O. AND DIRECT THE A.O. TO REPLACE HIS VIEWS. THE REFORE, WE ARE OF THE ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 8 OPINION THAT THE CIT WAS NOT CORRECT IN REVISING TH E ASSESSMENT ORDER FOR ESTIMATION OF NET PROFIT. 9. HAVING SAID THAT LET US EXAMINE, WHETHER THE ORD ER PASSED BY THE A.O. IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. AS FAR AS THE ESTIMATION OF NET PROFIT IS CONCERNED, THE A.O. HAS TAKEN ONE OF THE POSSIBLE VIEW, THEREFORE, IT C ANNOT BE HELD THAT THE ORDER PASSED BY THE A.O. IS ERRONEOUS AND ALSO IT I S PREJUDICIAL TO THE INTEREST OF REVENUE. THE ASSESSMENT ORDER PASSED B Y THE A.O. IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THER E IS NO LOSS OF REVENUE, BECAUSE THE A.O. HAS CHOSE TO ADOPT NET PROFIT RATE BASED ON HIS PREDECESSOR ASSESSMENT ORDER IN ASSESSEE OWN CASE F OR EARLIER ASSESSMENT YEAR. ONCE, THE A.O. ALLOWED THE CLAIM A FTER BEING SATISFIED WITH THE EXPLANATIONS OF THE ASSESSEE, THE CIT CANN OT REVISE THE ASSESSMENT ORDER FOR THE SAME REASONS WITH A DIFFER ENT OPINION. 10. THE CIT, U/S 263 OF THE ACT HAS POWER TO REVISE THE ASSESSMENT ORDER. BUT, TO INVOKE THE PROVISIONS OF SECTION 26 3, THE TWIN CONDITIONS MUST BE SATISFIED. I.E. (1) THE ORDER OF THE ASSES SING OFFICER IS ERRONEOUS (2) AND FURTHER IT MUST BE PREJUDICIAL TO THE INTER EST OF THE REVENUE. UNLESS BOTH THE CONDITIONS ARE SATISFIED, THE CIT C ANNOT ASSUME JURISDICTION U/S 263 OF THE ACT. IT IS NOT NECESSA RY THAT EVERY ORDER ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 9 WHICH IS ERRONEOUS MAY NOT BE PREJUDICIAL TO THE IN TEREST OF THE REVENUE OR VICE VERSA. UNLESS, THE A.O. ORDER IS ERRONEOUS , NO ACTION CAN BE TAKEN BY THE CIT U/S 263 OF THE ACT, THIS IS BECAUS E THE TWIN CONDITIONS I.E. (1) ORDER IS ERRONEOUS (2) THE SAME IS ALSO PR EJUDICIAL TO THE INTEREST OF THE REVENUE ARE CO -EXISTS. IN THE PRESENT CASE ON HAND, THE A.O. HAS CONDUCTED DETAILED ENQUIRY AND ALSO EXAMINED THE PO INTS ON WHICH THE CIT WANTS FURTHER VERIFICATION. THE ASSESSING OFFI CER AFTER VERIFICATION OF BOOKS OF ACCOUNTS AND RELEVANT DETAILS CHOSE TO EST IMATE THE NET PROFIT AT 6% WHICH CANNOT BE TERMED AS ERRONEOUS. THE CON TENTION OF THE CIT WAS THAT THE A.O. HAS NOT CONDUCTED PROPER ENQUIRY AND ALSO NOT APPLIED HIS MIND BEFORE PASSING ASSESSMENT ORDER. WE DO NOT SEE ANY MERITS IN THE ARGUMENTS OF THE CIT FOR THE REASON THAT THERE IS A DISTINCTION BETWEEN LACK OF ENQUIRY AND INADEQUATE ENQUIRY. IF, THERE IS AN INADEQUATE ENQUIRY, THAT WOULD NOT BY ITSELF GIVE O CCASION TO THE CIT TO ASSUME JURISDICTION U/S 263 OF THE ACT, MERELY BECA USE HE HAS A DIFFERENT OPINION ON THE ISSUES. THEREFORE, WE ARE OF THE OPINION THAT IN THE PRESENT CASE ON HAND, THERE IS NO REASON OF WHA TSOEVER FOR THE COMMISSIONER TO REVISE THE ASSESSMENT ORDER, AS ON BOTH COUNTS I.E. THE ORDER IS NOT ERRONEOUS AS THE A.O. HAS VERIFIED THE ISSUES AND ALLOWED THE CLAIM AND ALSO THE ORDER IS NOT PREJUDICIAL TO THE INTEREST OF THE REVENUE, AS THE ISSUE OF ESTIMATION OF NET PROFIT W AS RIGHTLY ADOPTED BY ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 10 THE A.O. BY FOLLOWING THE PREDECESSOR ASSESSMENT OR DER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2007-08. 11. NOW, IT IS PERTINENT TO MENTION HERE THE CASE L AWS RELIED UPON BY THE LD. A.R. THE A.R. RELIED UPON THE COORDINATE B ENCH DECISION OF VISAKHAPATNAM ITAT, IN THE CASE OF MARUTHI CONSTRUC TIONS, VIJAYAWADA VS. ACIT ITA NO.67/VIZAG/2012. THE COORDINATE BENC H OF THIS TRIBUNAL, WHILE DEALING WITH SIMILAR ISSUE, SET ASIDE THE ORD ER PASSED BY THE CIT U/S 263 OF THE ACT. THE RELEVANT PORTION OF THE OR DER IS REPRODUCED HEREUNDER: 3. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI ALS ON RECORD AS WELL AS THE ORDERS OF THE ASSESSING OFFICER AND CIT. AS COULD BE SEEN, ID ENTICAL ISSUE CAME UP FOR CONSIDERATION BEFORE THE ITAT IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2006-07. THE FACTS EMANATING IN THE ASSESSMENT YEAR 2006-07 AS DISCUSSED IN THE ORDER OF THE TRIBUNAL AND THE FINDING OF THE TRIBUN AL IN THAT REGARD ARE EXTRACTED HEREIN FOR CONVENIENCE: 8. WITH REGARD TO GROUND NOS. 6 TO 8, WHICH RE/ATE TO AN ESTIMATION OF INCOME, WE FIND THAT CIT HAS SET ASIDE THE ASSESSME NT ORDER ON THE GROUND THAT IN SIMILAR LINE OF BUSINESS TRIBUNAL HAS ESTIMATED THE NET PROFIT AT 12.5% AND THE A. 0. HAS ESTIMATED IT TO BE AT 9% AND DIRECTED THE A.O. TO RE-ESTIMATE THE NET INCOME OF THE ASSESSEES, KEEPING IN VIEW THE NET INCOME ASSESSED IN THE CASE OF SHRI TUMMALA VENKATESWARA RAO, SHRI TUMMALA MURALI KRISHNA AND M /S. TUMMALA INFRASTRUCTURE LTD IN WHICH NET INCOME WAS ESTIMATED AT 12.59%. . 9. THE LD. COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT BEFORE ESTIMATING THE INCOME OF THE ASSESSEES, THE ASSESSING OFFICER HAS EXAMINE D THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND AFTER REJECTING THE SAME, HE ESTIMATED THE INCOME. ONCE THE ASSESSING OFFICER HAS APPLIED HIS MIND TO THE BOOKS OF ACCOUNTS AND T HE INCOME DECLARED BY THE ASSESSEE BEFORE ESTIMATING THE INCOME FROM THE BUSINESS OF T HE ASSESSEE, IT IS NOT PROPER TO SAY THAT HE HAS NOT APPLIED HIS MIND AND HIS ORDER IS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD. COUNSEL FOR THE AS SESSEE FURTHER CONTENDED THAT IT 19 A SETTLED POSITION OF LAW THAT WHERE THE ASSESSING OF FICER HAS APPLIED HIS MIND TO MAKE CERTAIN ESTIMATIONS, HIS ORDER CANNOT BE REVISED BY THE CIT ONLY FOR THE SIMPLE REASON THAT ESTIMATION MADE BY THE A.O. IS ON LOWER SIDE. ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 11 10. THE LD. D.R. ON THE OTHER HAND HAS PLACED A HEAVY R ELIANCE UPON THE ORDER OF THE CIT. 11. HAVING CAREFULLY EXAMINED THE ORDER OF THE CIT AS W ELL AS THE A. 0. IN THE LIGHT OF RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT ASSESSIN G OFFICER HAS EXAMINED THE BOOKS OF ACCOUNTS AS WELL AS BILLS AND VOUCHERS AND AFTER NO TICING CERTAIN DEFECTS THEREIN, HE REJECTED THE BOOKS OF ACCOUNTS AND ESTIMATED THE IN COME AT 9% ON THE GROSS CONTRACTUAL RECEIPTS SUBJECT TO DEDUCTION OF INTEREST AND REMUN ERATION U/S 40(B) OF THE ACT. ONCE THE ASSESSING OFFICER HAS EXAMINED THE ISSUE AND MADE E STIMATION OF AN INCOME, HIS ESTIMATION CANNOT BE REVISED BY THE CIT ONLY FOR TH E REASON THAT HE DOES NOT AGREE WITH THE ESTIMATION MADE BY THE A. 0. IT IS A SETTLED PO SITION OF LAW THAT CIT CANNOT THRUST HIS OPINION/VIEW UPON THE ASSESSING OFFICER. WE, THEREF ORE, OF THE CONSIDERED OPINION UNDER THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE THAT REVISION MADE BY THE CIT ON THIS ISSUE IS NOT PROPER. WE, ACCORDINGLY, SET ASID E THE ORDER OF THE CIT IN THIS REGARD.' 4. ON GOING THROUGH THE ORDER OF THE TRIBUNAL, WE F IND THAT THE FACTS ARE MATERIALLY THE SAME AS IN THE ASSESSMENT YEAR UNDER CONSIDERAT ION ALSO. THEREFORE, FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL, WE HOLD THA T THE CIT WAS NOT JUSTIFIED IN REVISING THE ASSESSMENT ORDER. IT FURTHER NEEDS TO B E MENTIONED THAT THE CIT WITHOUT HIMSELF DECIDING WHAT SHOULD BE THE NET PRO FIT RATE HAS AGAIN LEFT IT TO THE DISCRETION OF THE AO. THIS SHOWS THAT THE CIT HIMSE LF WAS NOT SURE ABOUT THE RATE OF PROFIT TO BE ADOPTED. IN THE AFORESAID VIEW OF T HE MATTER, WE SET ASIDE THE ORDER OF THE CIT AND RESTORE THAT OF THE ASSESSING OFFICE R. 12. IN THIS VIEW OF THE MATTER AND ALSO APPLYING TH E RATIO OF THE COORDINATE BENCH DECISION, WE ARE OF THE OPINION TH AT THE ASSESSMENT ORDER U/S 143(3) OF THE ACT PASSED BY THE A.O. IS N OT ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE . THEREFORE, WE QUASHED THE ORDER PASSED BY THE CIT U/S 263 OF THE ACT AND RESTORE THE ASSESSMENT ORDER. ITA NO.247/VIZAG/2014 CH. VENKATESWARA RAO, PALAKOL 12 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 22 ND JAN16. SD/- SD/- (. ) ( . ) ( V. DURGA RAO ) ( G. MANJUNATHA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER , /VISAKHAPATNAM: 0 / DATED : 22.1.2016 VG/SPS # 2, 3,/ COPY OF THE ORDER FORWARDED TO :- 1. / THE APPELLANT SRI CH. VENKATESWARA RAO, D.NO.SRI CH. VENKATESWARA RAO, D.NO.3-6-20/1, WEAVERS COLONY, PALAKOL-534 260 , WEST GODAVARI DISTRICT. 2. #$ / THE RESPONDENT THE ITO WARD-1, PALAKOL-534 260, W.G. DIST. 3. 5 / THE CIT, RAJAHMUNDRY 4. 5 () / THE CIT (A), RAJAHMUNDRY 5. , # :, ( : , , / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // >? : ( SR.PRIVATE SECRETARY ) ( : , , / ITAT, VISAKHAPATNAM