ACIT, V. M/s Sri Pramod Kr. Jaiswal,

ITA 267/RAN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0430 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 2 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 14-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DEEPAK ROUSHAN SR S C
• Keywords: Business income; Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RANCHI CIRCUIT BENCH, RANCHI BEFORE SHRI N.S. SAINI, HONBLE ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, HONBLE JUDICIAL MEMBER ITA NO. 267/RAN/2014 (ASST. YEAR : 2006-07) ACIT, CENTRAL CIRCLE-2, RANCHI. VS. M/S. SRI PRAMOD KUMAR JAISWAL, NORTH SAMAJ STREET, THARPAKHNA, RANCHI. PAN NO. ADEPJ 3479 P (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S.K. PODDAR WITH SHRI M.K. CHOUDHARY ADV. DEPARTMENT BY : SHRI DEEPAK ROUSHAN SR.SC DATE OF HEARING : 29/10/2015. DATE OF PRONOUNCEMENT : 29/10/2015. O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), RANCHI, DATED 30/05/2014. 2. THE SOLE GROUND OF APPEAL TAKEN BY THE REVENUE REA DS AS UNDER:- THE SECOND APPEAL IS SUGGESTED IN THE CASE OF PRAM OD KUMAR JAISWAL AS HE IS INVOLVED IN ANIMAL HUSBANDRY SCAM AND SEPARATE PROCEEDINGS ARE ALREADY UNDERWAY BEFORE CBI. ORDER OF HIGHER COURTS WHICH HAVE BEEN RELIED UPON BY CIT(A) HAVE B EEN CONTESTED BY THE DEPARTMENT BEFORE THE HIGH COURT A ND ARE PRESENTLY PENDING. HENCE, SECOND APPEAL IS SUGGESTE D. 3 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE O RDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. 2 ITA NO. 267/RAN/2014 4. FACTS OF THE CASE, IN BRIEF, ARE THAT DURING THE C OURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OBSER VED THAT THE ASSESSEE HAD SHOWN INCOME FROM THREE TRUCKS INCLUDI NG ONE SMALL TRUCK UNDER SECTION 44AE, TOTALLING TO RS. 1,21,800/-. T HE ASSESSING OFFICER OBSERVED THAT THE ASSESSEE HAD SHOWN INCOME FROM FO UR BUSES AT RS.48,000/- AFTER DEDUCTIONS OF ROAD TAX AND INSURA NCE. HE ALSO OBSERVED THAT THE ASSESSEE HAD SHOWN INCOME OF RS. 12,000/- P.A. PER BUS WHICH WAS TOO LOW. THE ASSESSING OFFICER FURTH ER OBSERVED THAT THE COPY OF AGREEMENT BETWEEN SHRI P.K. JAISWAL AND SHR I JAGDISH PRASAD AND AS PER THE AGREEMENT SHRI JAGDISH PRASAD HAD TO PAY MONTHLY HIRING CHARGES OF RS. 1,000/- P.M. AGAINST EVERY BU S. THE ASSESSING OFFICER AFTER GOING THROUGH THE CONTENTS OF THE AGR EEMENT TREATED THE SAME AS VAGUE. THE ASSESSING OFFICER AFTER GOING T HROUGH THE HISTORY OF THE CASE AND CONTENTS OF THE AGREEMENT HELD THAT DU RING THE YEAR ALSO, THE AGREEMENT WAS NOT BEING RELIED UPON. IN EARLIE R YEARS, THE ASSESSING OFFICER HAD OBSERVED THAT FOR ASSESSMENT YEARS 2000-01 & 2001-02, THE ASSESSEES NET INCOME FROM BUS WAS EST IMATED AT RS.320/- PER DAY PER BUS I.E. AFTER DEDUCTING OF AL L EXPENSES AND DEPRECIATION. CONSIDERING THE FACTS OF THE CASE AN D BUSES HAVE BECOME OLD AND THEIR INCOME EARNING CAPACITY WOULD HAVE RE DUCED, THE NET INCOME FROM BUS (AFTER DEDUCTING OF ALL EXPENSES AN D DEPRECIATION) WAS ESTIMATED @ 240/- PER DAY PER BUS. AS SUCH, THE AS SESSEES INCOME FROM FOUR BUSES WAS DETERMINED AT RS. 3,45,600/-. 5. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND ARGUED THA T THE TRIBUNAL VIDE ITS ORDER DATED 28/06/2013 PASSED IN ITA NO. 2 42/RAN/2008 REJECTED THE AGREEMENT AND DIRECTED THE ASSESSING O FFICER TO COMPUTE THE INCOME FROM BUS. THE ASSESSEE DURING THE YEAR PLIED FOR FOUR BUSES. THE SAID ORDER OF THE TRIBUNAL MAY KINDLY B E ENFORCED AS THE NUMBER OF VEHICLE IS LESS THAN TEN AND THE FACTS AR E SAME. FURTHER, THE ASSESSEE SUBMITTED THAT ONE TRUCK IS OWNED BY MANIS H KUMAR JAISWAL 3 ITA NO. 267/RAN/2014 THE SON OF THE ASSESSEE AND AS DISCLOSED IN THE COM PUTATION OF INCOME WAS INCLUDED IN THE INCOME OF THE FATHER. THE INC OME OF MANISH KUMAR JAISWAL WAS ALSO DIRECTED BY THE TRIBUNAL TO BE ADD ED IN THE ASSESSMENT YEAR 2001-02 IN THE HANDS OF MANISH KUMAR JAISWAL I TSELF. THE SAME IS APPLICABLE IN THE SAID ASSESSMENT YEAR ALSO AS THE FACT IS SAME. THE ASSESSEE IN VIEW OF THESE FACT REQUESTED THAT THE D IRECTION OF THE TRIBUNAL MAY KINDLY BE ACCEPTED AND ACCORDINGLY ADD ITION SHOULD BE DELETED. 6 . THE COMMISSIONER OF INCOME TAX (APPEALS) AFTER CO NSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE HELD THAT THE ASSE SSEE DID NOT MAINTAIN BOOKS OF ACCOUNTS AND ALSO DID NOT PRODUCE THE BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER. WHEN THE BO OKS OF ACCOUNTS WERE NOT PRODUCED AND WHEN THE ASSESSEE IS IN THE B USINESS OF PLYING AND HIRING AND LEASING GOODS CARRIAGE, HIS INCOME C ANNOT BE ESTIMATED ARBITRARILY. AS PER THE PROVISIONS OF SEC. 44AE FO R COMPUTING OF BUSINESS INCOME FOR BUSINESS OF PLYING AND HIRING AND LEASIN G OF GOODS CARRIAGE, THE ASSESSING OFFICER SHOULD COMPLY WITH THE PROVIS IONS OF SEC. 44AE AND SHOULD HAVE ESTIMATED THE INCOME AS PER THE PRO VISIONS. THE COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT THE ASSESSEE IS OWNING FOUR VEHICLES ONLY, THEREFORE SEC. 44AE IS A PPLICABLE TO THE BUSINESS OF THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER IS DIRECTED TO ASSESS THE INCOME AS PER SEC. 44AE OF THE ACT AS PE R THE PREVAILING RATE IN ASSESSMENT YEAR 2006-07. HE FURTHER DIRECTED TH E ASSESSING OFFICER TO COMPUTE INCOME AFTER GIVING DUE OPPORTUNITY OF H EARING TO THE ASSESSEE AND ALSO PLACED RELIANCE ON THE DECISION O F THIS BENCH OF THE TRIBUNAL IN THE CASE OF LATE PRAMOD KUMAR JAISWAL VS. DCIT IN ITA NO. 242/RAN/2008 AND ALLOWED THE APPEAL OF THE ASSESSEE . 7 . DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER O F THE ASSESSING OFFICER. 4 ITA NO. 267/RAN/2014 8 . ON THE OTHER HAND, AUTHORIZED REPRESENTATIVE OF T HE ASSESSEE SUBMITTED THAT THE COMMISSIONER OF INCOME TAX (APPE ALS) HAS ALLOWED RELIEF TO THE ASSESSEE BY FOLLOWING THE ORDER OF TH IS BENCH OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF IN THE ASSE SSMENT YEAR 2001-02. HE SUBMITTED THAT AS THE FACTS IN THE YEAR UNDER AP PEAL ARE IDENTICAL TO THE FACTS THAT WERE BEFORE THE TRIBUNAL IN ASSESSME NT YEAR 2001-02, THEREFORE, THERE WAS NO ERROR IN THE ORDER OF THE C OMMISSIONER OF INCOME TAX (APPEALS) IN ALLOWING THE APPEAL OF THE ASSESSEE BY FOLLOWING THE ORDER OF THE TRIBUNAL FOR ASSESSMENT YEAR 2001-02. 9. WE FIND THAT THE DEPARTMENTAL REPRESENTATIVE HAS ME RELY RELIED ON THE ORDER OF THE ASSESSING OFFICER, BUT COULD NO T POINT OUT ANY SPECIFIC ERROR IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS). HE ALSO COULD NOT POINT OUT ANY ERROR IN THE FINDIN G OF THE COMMISSIONER OF INCOME TAX (APPEALS) THAT THE ASSES SEE OWNED FOUR VEHICLES DURING THE YEAR AND, THEREFORE, SEC. 44AE WAS APPLICABLE TO THE BUSINESS OF THE ASSESSEE. DEPARTMENTAL REPRESENTAT IVE COULD NOT BRING ANY MATERIAL ON RECORD TO SHOW THAT WHY THE ORDER O F THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR THE ASSESSMENT YEAR 200 1-02 SHOULD NOT BE FOLLOWED IN THE YEAR UNDER CONSIDERATION. HENCE, W E FIND NO INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEAL S) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE I S DISMISSED. 10. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT AT THE CLOSE OF THE H EARING ON THURSDAY, THE 29 TH DAY OF OCTOBER, 2015 AT RANCHI. SD/- SD/- (GEORGE MATHAN) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 29 TH OCTOBER, 2015. 5 ITA NO. 267/RAN/2014 VR/- COPY TO: 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT 4. THE CIT(A) 5. THE D.R. 6. GUARD FILE. BY ORDER ASSISTANT REGISTRAR I.T.A.T., RANCHI 6 ITA NO. 267/RAN/2014 DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 29/10/2015 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 30/10/2015 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 30/10/2015 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 30/10/2015 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 30/10/2015 SR.PS 6. DATE OF PRONOUNCEMENT 29/10/2015 SR.PS 7. FILE SENT TO THE BENCH CLERK 30/10/2015 SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER