Shri Parbatsinh Bhagwansinh Dodiya, Bhavnagar V. The Income Tax Officer, Ward-2(3), Bhavnagar

ITA 2710/AHD/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9845 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-11-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 20-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIMAL I MEHTA
• Keywords: Presumptive income; Business income; Additional evidence
• Section: 69

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER ./ ITA NO. 2710/AHD/2013 / ASSESSMENT YEAR : 2010-11 PARBATSINH BHAGWANSINH DODIYA, NEAR HIGH SCHOOL, RAMNAGAR, BUDHEL, DIST: BHAVNAGAR PAN : AHPPD 0684 H VS INCOME-TAX OFFICER, WARD 2 (3), BHAVNAGAR / (APPELLANT) / (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI VIMAL I. MEHTA, SR. DR / DATE OF HEARING : 22/11/2016 / DATE OF PRONOUNCEMENT: 22/11/2016 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-XX, AH MEDABAD DATED 30.09.2013 FOR ASSESSMENT YEAR 2010-11. 2. FOLLOWING GROUNDS ARE RAISED:- 1. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ADM ITTING ADDITIONAL EVIDENCES UNDER RULE 46A. 2. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRM ING ADDITION OF RS.46,76,060/- EQUIVALENT TO THE AMOUNT OF CASH DEP OSITED IN THE AXIS BANK ACCOUNT. 3. NONE APPEARED FOR THE ASSESSEE AT THE TIME OF HE ARING. THE ISSUE BEING SMALL, THE APPEAL IS DECIDED EX-PARTE QUA THE ASSESSEE, AFTER HEARING THE LD. DR AND PERUSING THE MATERIAL AVAILABLE ON RECOR D. 4. THE BRIEF FACTS ARE THE ASSESSEE IS A TRANSPOR TER WHO HAS FILED HIS RETURN OF INCOME U/S 44AE OF THE ACT WHICH IS EVIDE NT FROM THE FOLLOWING OBSERVATION OF THE ASSESSING OFFICER:- 2. IN RESPONSE TO THE ABOVE NOTICES, AUTHORIZED R EPRESENTATIVE SHRI KHUDUBHAI B. GOHIL, ITP FROM K.DAVE & CO. OF THE AS SESSEE, ATTENDED ON SMC-ITA NO.2710/AHD/2013 PARBATSINH BHAGWANSINH DODIYA VS. ITO AY : 2010-11 2 BEHALF OF THE ASSESSEE FROM TIME TO TIME, AND FURNI SHED THE DETAILS CALLED FOR. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF TRANSPOR TATION, COMMISSION AND INTEREST INCOME. DURING THE YEAR UNDER CONSIDERATI ON, THE ASSESSEE HAS SHOWN RECEIPTS U/S 44AE OF RS.84,000/- FROM PLYING OF TRUCKS AND INCOME FROM PARTNERSHIP FIRM. 4.1 THUS, THE ASSESSEE HAD OFFERED HIS INCOME ON TH E BASIS OF PRESUMPTIVE TAXATION AND NOT ON THE BASIS OF BOOKS OF ACCOUNTS. THE ASSESSEE PRODUCED HIS BANK ACCOUNT AND THERE WERE CASH DEPOSITS IN TH E ACCOUNT, WHICH, ACCORDING TO ASSESSEE, WERE TRANSPORT RECEIPTS. IT APPEARS THAT THE ASSESSEE COULD NOT PRODUCE BANK ACCOUNT AND OTHER DETAILS FO R EXPLAINING THE CASH DEPOSITS BEING BUSINESS RECEIPTS. THE LD. AO, THOU GH ACCEPTED ASSESSEES RETURN U/S 44AE, HOWEVER, MADE THE ABOVE ADDITION U /S 69 OF THE ACT. 5. AGGRIEVED, THE ASSESSEE PREFERRED FIRST APPEAL, WHERE DETAILED EXPLANATION WAS FILED AND FURTHER DOCUMENTS WERE PR ODUCED. THE ASSESSEE FILED EVIDENCE FROM BANK. THE ASSESSEE CONTENDED T HAT, BEING A TRANSPORTER, HE WAS TOTALLY RELIED ON HIS TAX CONSULTANT WHO FIL ED THE DOCUMENTS ACCORDING TO HIS WISDOM. SINCE THE EVIDENCE GOES TO THE ROOT OF THE ISSUE, THE SAME SHOULD BE ADMITTED. LD. CIT(A), HOWEVER, REFU SED TO ADMIT THE SAME AND DISMISSED THE APPEAL. 6. LD. DEPARTMENTAL REPRESENTATIVE IS HEARD, WHO HA S SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 7. I HAVE HEARD THE LD. DR, PERUSED THE MATERIAL AV AILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IT MERGES FROM THE RECORD THAT THE ASSESSEE HAS FILED RETURN U/S 44AE OF THE ACT ON THE PRESUMPTIVE INCOME, WHICH HAS BEEN ADMITTED. IN MY CONSIDERED VIEW, THE ASSESSEES EXPLANATION THAT THE CASH DEPOSITS IN THE BANK ACCO UNT WERE TRANSPORT RECEIPTS HAS NOT BEEN EFFECTIVELY DISBELIEVED. THE ASSESSEE IS A TRANSPORTER AND FROM THE ASSESSING OFFICERS OBSERVATION, IT DO ES NOT APPEAR THAT HE SMC-ITA NO.2710/AHD/2013 PARBATSINH BHAGWANSINH DODIYA VS. ITO AY : 2010-11 3 MAINTAINED REGULAR BOOKS OF ACCOUNTS UNDER THE IMPR ESSION THAT INCOME-TAX IS LEVIABLE ON HIM ON THE BASIS OF PRESUMPTIVE RATE OF TAX. IF THE ASSESSEE WAS NOT MAINTAINING BOOKS OF ACCOUNTS, THEN THE AO S OBSERVATION IN PARAGRAPH 4 OF THE ASSESSMENT ORDER THAT THE ASSESS EE DID NOT PRODUCE CASH BOOKS BECOMES QUESTIONABLE. BESIDES, IT HAS BEEN H ELD THAT IF THE ASSESSEE IS WORKING UNDER PROFESSIONAL GUIDANCE, THE MISTAKE OF THE PROFESSIONAL CANNOT BE A REASON TO PUNISH THE ASSESSEE. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES, THE LD. CIT(A) SHOULD HAVE ADMITTED THE ADDITIONAL EVIDENCES; MORE SO, WHEN THE ASSESSEE SEEMS TO BE A TRANSPORTER NOT WELL VERSED WITH TECHNICALITIES AND BOOKS OF ACCOUNTS AN D FILES HIS RETURN ON SUMMARY BASIS ON PRESUMPTIVE TAXATION U/S 44AE OF T HE ACT. IN MY CONSIDERED VIEW, ENDS OF JUSTICE WILL BE SERVED IF THE ASSESSMENT IS SET ASIDE AND RESTORED BACK TO THE FILE OF ASSESSING OFFICER TO DECIDE THE SAME DE NOVO AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING H EARD. 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED ON ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 22 ND NOVEMBER, 2016 AT AHMEDABAD. SD/- R.P. TOLANI (JUDICIAL MEMBER) AHMEDABAD; DATED 22/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD