ITO, SRIGANGANAGAR V. M/s. G.R. Contractor, SRIGANGANAGAR

ITA 275/JODH/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9472 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-02-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-02-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 13-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR B EFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI V. D. RAO, JUDICIAL MEMBER ITA NO:275 / JU / 2009 ASSTT. YEAR:2006 -2007 THE INCOME-TAX OFFICER, VS M/S G.R. CONTRACTORS, WARD 1, 53-E BLOCK, SRIGANGANAGAR. SRIGANGANAGAR. C.O. NO.43 / JU / 2009 (A/O ITA NO.275 / JU / 2009) ASSTT. YEAR: 2006 2007 M/S G.R. CONTRACTORS, VS THE INCOME-TAX OFFICER, 53-E BLOCK, WARD 1, SRIGANGANAGAR. SRIGANGANAGAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AVADESH KUMAR, D. R., RESPONDENT BY: SHRI SURESH OJHA, A.R., ORDER PER V. D. RAO: JM 1. THIS APPEAL AND CROSS OBJECTIONS HAVE BEEN FILED BY THE REVENUE AND ASSESSEE AGAINST THE ORDER OF THE LD. CIT (APPEALS ), BIKANER ORDER DATED 27-02-2009, ASSESSMENT YEAR 2006-07. 2. FACTS ARE IN BRIEF THAT THE ASSESSEE IS A PARTNE RSHIP FIRM AND ENGAGED IN THE BUSINESS OF PLYING OF TANKERS FOR THE CARRIAGE OF BITUMEN FROM PLACE TO PLACE. THE ASSESSEE FIRM HAD ITS OWN TRUCKS AND HA D ALSO SHOWN 2 TRANSPORTATION RECEIPTS FROM OTHER THAN OWN TRUCKS. THE ASSESSEE HAS DECLARED 18% NP AND ALSO SHOWN COMMISSION INCOME OF RS.1,99,561/-. AS AGAINST THE INCOME SHOWN BY THE ASSESSEE, THE ASSES SING OFFICER HAS ESTIMATED NP AT 21% AND WITH REGARD TO COMMISSION I NCOME ESTIMATED AT RS.6,17,472/-, ACCORDINGLY THE ADDITION WAS MADE. A S AGAINST THE ORDER OF THE ASSESSING OFFICER, ASSESSEE CARRIED THE MATTER AND APPEAL BEFORE THE LD. CIT (A). 3. THE LD. CIT (A) BY FOLLOWING THE ORDER OF THE TR IBUNAL FOR THE ASSESSMENT YEAR 2003-04 AND DIRECTED THE ASSESSING OFFICER TO FOLLOW THE DIRECTIONS GIVEN BY THE HONBLE ITAT, JODHPUR BENCH . AS AGAINST THE ORDER OF THE LD. CIT (A), REVENUE CARRIED THE MATTER AND APPEAL BEFORE THE TRIBUNAL. 4. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE HAS SUBMITTED THAT THE ISSUE INVOLVED IN THIS APPEAL COVERED BY T HE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2003-2004 IN ITA NO. 9 / JU / 0 7, DATED 24 TH AUGUST, 2007 WHEREIN THE HONBLE TRIBUNAL HAS OBSERVED AS U NDER. AFTER CONSIDERATION THE RIVAL SUBMISSIONS AND PERUS ING THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE ASSES SEE HAD NOT, IN FACT, MAINTAINED BOOKS OF ACCOUNT IN SUCH A FASHION AS TO ENABLE THE ASSESSING OFFICER TO COMPUTE CORRECT INCOME. WE, THEREFORE, APPROVE THE ACTION OF THE ASSESSING OFFICER IN INVOKING THE PROVISIONS OF SEC.145. HOWEVER, 3 THE FACT REMAINS THAT AFTER REJECTION OF BOOKS OF A CCOUNT THE ASSESSING OFFICER CANNOT MAKE ASSESSMENT DEVOID OF THE RELEVA NT MATERIAL ON RECORD. THE JODHPUR BENCH OF THE TRIBUNAL HAS HELD IN SEVERAL CASES THAT IF THE BOOKS OF ACCOUNT ARE RIGHTLY REJECTED, THEN GUIDANCE SHOULD BE TAKEN FROM THE PROFIT RATE OF THE IMMEDIATELY PR ECEDING YEAR FOR COMPUTING TOTAL INCOME. ADVERTING TO THE FACTS OF THE CASE, WE FIND THAT AS PER THE ASSESSEES CALCULATION, WHICH HAS NOT BE EN REFUTED BY THE LD. D.R., N.P. RATE IN THE IMMEDIATELY PRECEDING YEAR I S 17.46% AS AGAINST 14.85% DECLARED IN THIS YEAR. WE, THEREFORE, HOLD THAT THE N.P. RATE OF 17.46% BE APPLIED ON THE TOTAL RECEIPTS OF RS.2,44, 71,277/-. AFTER APPLICATION OF SUCH PROFIT RATE, REMUNERATION SHOUL D BE ALLOWED TO THE PARTNERS AS PER LAW HAS BEEN HOLD IN THE AFORE-NOTE D ORDER OF THE TRIBUNAL IN HAZI MOHD HANIF & SONS, ITA NO. 633 / J U / 2005, DATED 25.1.2006. 5. SUBSEQUENTLY, THE ASSESSEE HAS MOVED A MISCELLAN EOUS APPLICATION NO.107 / JU /2007 BY ORDER DATED 19-12-2007. THE H ONBLE TRIBUNAL FURTHER OBSERVED THAT WE MAKE IT CLEAR THAT THE RATE OF 17 .46% IS BEFORE DEPRECIATION, INTEREST, SALARY AND INTEREST TO THIRD PARTIES AS WAS IN THE PRECEDING YEAR ALSO. THE LD. D.R., SUPPORTED THE ORDER PASSED BY THE ASSESSI NG OFFICER. 4 6. WE HAVE HEARD BOTH THE SIDES, PERUSE THE RECORDS AND GONE TO THE ORDERS OF THE AUTHORITIES BELOW. 7. THE ISSUE INVOLVED IN THIS APPEAL IS SQUARELY CO VERED BY THE ASSESSEES OWN CASE, NOTHING WAS BROUGHT ON RECORD BY THE LD. D.R., TO SHOW THAT WHETHER THE ORDER PASSED BY THE TRIBUNAL SUBSEQUENT LY REVERSED BY THE HIGHER COURT AND NO CONTRARY DECISION WAS BROUGHT T O OUR NOTICE. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF T HE TRIBUNAL IN THE ASSESSEES OWN CASE THIS APPEAL FILED BY THE REVENU E IS DISMISSED. 8. IN SO FAR AS CROSS OBJECTION FILED BY THE ASSESS EE IS CONCERNED IN VIEW OF THE DISMISSAL OF THE APPEAL FILED BY THE REVENUE , NO ADJUDICATION IS REQUIRED. 9. IN THE RESULT THE REVENUE APPEAL IS DISMISSED. 10. THE CROSS OBJECTION FILED BY THE ASSESSEE IS DI SMISSED. 11. THE ORDER WAS PRONOUNCED IN THE OPEN COURT DATE D ON 9 TH FEBRUARY, 2011. SD/- SD/- (S.V. MEHROTRA) (V. D. RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09-02-2011 KAMAL KUMAR COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE CIT (A)/TH E D.R.,