M/s. Pateshwari Prasad Pandey & Co., Basti V. Commissioner of Income Tax , Faizabad

ITA 276/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75156 (ITAT-LUCKNOW)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 06-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 17-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK MISHRA
• Section: 263

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.276/LKW/2013 A.Y.:2008 - 2009 M/S PATESHWARI PRASAD PANDEY & CO., JIGNA, BASTI. PAN:AAFFP9014L VS. C.I.T., FAIZABAD. (APPELLANT) (RESPONDENT) APPELLANT BY SHRI M. P. MISHRA, ADVOCATE SHRI SHAILENDRA MISHRA, ADVOCATE RESPONDENT BY SHRI VIVEK MISHRA, CIT, D.R. DATE OF HEARING 06/01/2014 DATE OF PRONOUNCEMENT 3 0 /01/2014 O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER OF LEARNED CIT, FAIZABAD PASSED BY HIM ON15/03/2013 U/S 263 OF THE I.T. ACT. 2. THE ASSESSEE HAS RAISED AS MANY AS 7 GROUNDS OF APPEAL BUT THE ONLY GRIEVANCE OF THE ASSESSEE IS REGARDING THE VALIDITY OF THE REVISIONARY ORDER PASSED BY LEARNED CIT U/S 263 OF THE ACT. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE BEFORE US THAT TH E ORDER PASSED BY THE ASSESSING OFFICER IS NEITHER ERRONEOUS NOR PREJUDICIAL TO THE INTEREST OF THE REVENUE AND, THEREFORE, THE ORDER PASSED BY LEARNED CIT U/S 263 SHOULD BE SET ASIDE. A QUERY WAS RAISED BY THE BENCH AS TO WHETHER ANY ENQUIRY WAS MADE BY THE ASSESSING OFFICER ON THOSE ISSUES FOR WHICH NOTICE IS ISSUED BY LEARNED CIT U/S 263 . IN REPLY, IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT A COPY OF NOTICE ISSUED BY LEARNED CIT U/S 263 IS AVAILABLE ON PAGE NO. 28 OF THE PAPER BOOK BUT HE CO ULD NOT SHOW THAT ANY 2 QUERY WAS MADE BY THE ASSESSING OFFICER ON THESE ISSUES IN COURSE OF ASSESSMENT PROCEEDINGS. 4. AS AGAINST THIS, IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER WITHOUT MAKIN G ANY ENQUIRY AND, THEREFORE, THIS ISSUE IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. VS COMMISSIONER OF INCOME - TAX [2000] 243 ITR 83 (SC) . RELIANCE WAS ALSO PLACED ON THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT IN THE CASE OF JAGDISH KUMAR GULATI VS COMMISSIONER OF INCOME - TAX [2004] (ALL) 269 ITR 71. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT IN THE NOTICE ISSUED BY LEARNED CIT U/S 26 3, HE HAS RAISED THREE ISSUES. FIRST ISSUE IS THAT AFTER CONSIDERING THE RETENTION MONEY BY L&T, THE RECEIPTS WERE SHOWN AT RS.8,00,55,816/ - WHERE AS DEPOSITS IN THE BANK ACCOUNT WERE OF RS.6,50,25,716/ - ONLY DURING THE RELEVANT PERIOD. THE SECOND ISSUE I S THAT AS PER PARTNERSHIP DEED, SIX PART NERS WERE AUTHORIZED TO RECEIVE REMUNERATION OF 10% OF THE BOOK PROFIT, MAXIMUM RS. ONE LAC. HOWEVER, ACTUAL REMUNERATION CLAIMED TO HAVE BEEN PAID TO THESE PERSONS WERE RS.6.12 LAC. THE THIRD POINT NOTED BY LEARNE D CIT IS THAT DETAILS OF NSCS AND INTEREST WAS NOT OFFERED TO TAX. ON THESE POINTS, WE DO NOT FIND ANY DISCUSSION IN THE ASSESSMENT ORDER AND NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT ANY QUERY WAS MADE BY THE ASSESSING OFFICER ON THESE ISSUES AND HE HAD FORMED AN OPINION, WHICH MAY BE RIGHT OR WRONG ON THESE ISSUES. HENCE, IT HAS TO BE ACCEPTED THAT THE ASSESSMENT WAS COMPLETED BY ASSESSING OFFICER WITHOUT MAKING PROPER AND REASONABLE ENQUIRIES. 6. IN THE LIGHT OF THESE FACTS, WE NOW EXAMINE THE A PPLICABILITY OF THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF JAGDISH KUMAR GULATI VS COMMISSIONER OF INCOME - TAX (SUPRA). IN TH AT CASE , IT WAS 3 FOUND BY HON'BLE HIGH COURT THAT PROPER ENQUIRIES WERE NOT MADE BY THE ASSESSING OFFICER AND UNDER THESE FACTS; IT WAS HELD THAT THERE WAS VALID ASSUMPTION OF JURISDICTION U/S 263 OF THE ACT. SINCE THE FACTS OF THE PRESENT CASE ARE SIMILAR, RESPECTFULLY F OLLOWING THIS JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT, WE DECLINE TO INTERFERE IN THE ORDER PASSED BY LEARNED CIT U/S 263 OF THE ACT. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTI ONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 3 0 T H JANUARY, 2014. *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR