DCIT-CENTRAL-CIRCLE-2(1), Nagpur V. SHRI ASHOK A. DHAPODKAR, Nagpur

ITA 282/NAG/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1733 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: V SHRI MAHAVIR ATAL

Judgement Text

1 ITA NOS.282,283&290/ NAG/2014 IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER S.NO ITA NO. ASSTT. YEAR. 1. 282/NAG/2014 2003 - 04 2. 283/NAG/2014 2004 - 05 3. 290/NAG/2014 2009 - 10 DY. COMMISSIONER OF INCOME - TAX, SHRI ASHOK A. DHAPODKAR, CENTRAL CIRCLE - 2(1), NAGPUR. V/S. JUNI BASTI, TAND APETH, NAGPUR - 440016 APPELLANT. RESPONDENT. APPELLANT BY : SHRI NARENDRA KANE. RESPONDENT BYV : SHRI MAHAVIR ATAL. DATE OF HEARING : 23 - 07 - 2015 DATE OF PRONOUNCEMENT : 11 TH AUGUST, 2015 O R D E R THESE THREE APPEALS HAVE BEEN FILED BY THE REVENUE ARISING FROM THE THREE SEPARATE ORDERS OF LEARNED CIT(APPEALS) PERTAINING TO ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2009 - 10. ALL OF THEM ARE IDENTICAL DATED 11 - 03 - 2014. 2. REVENUE HAS RAISED SEVERAL GROUNDS WHICH ARE IDENTICALLY WORDED IN ALL THESE THREE APPEALS, HOWEVER, REVOLVING AROUND A SINGLE ISSUE OF ESTIMATION OF PROFIT BY LEARNED CIT(APPEALS) AT THE RATE OF 8% AS AGAINST THE RATE OF PROFIT ADOPTED BY THE ASSESSING OFFICER AT THE RATE OF 20%. 3. AT THE OUTSET, AN ORDER OF ITAT, NAGPUR BENCH DATED 28 TH OCT., 2014 PRONOUNCED IN ASSESSEE;S OWN CASE TITLED AS ASHOK ANANDRAO DHAPODKAR , 2 ITA NOS.282,283&290/ NAG/2014 PERTAINING TO THE ASSESSMENT YEARS 2005 - 06, 2006 - 07, 2008 - 09, 2003 - 04, 2004 - 05, 2009 - 10 (BEARING IT (SS) NOS. 15,16,17,18/NAG/2012, 131,132, 133/NAG/2014 RESPECTIV ELY) HAS BEEN FILED. THIS ORDER IS IN RESPECT OF 11 APPEALS OUT OF WHICH SEVEN APPEALS HAVE BEEN FILED BY THE ASSESSEE FOR THE RESPECTIVE ASSESSMENT YEARS AS MENTIONED ABOVE. THE REST OF THE FOUR APPEALS WERE THE CROSS APPEALS FILED BY THE REVENUE DEPARTM ENT PERTAINING TO THE ASSESSMENT YEARS 2005 - 06, 2006 - 07, 2007 - 08 AND 2008 - 09 (BEARING ITA NOS. 21, 22, 23, 24/NAG/2012 RESPECTIVELY). 4. I HAVE BEEN INFORMED DURING THE COURSE OF HEARING THAT MISTAKENLY THE APPEALS OF THE REVENUE DEPARTMENT FOR ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2009 - 10 WERE NOT CONSOLIDATED AT THAT POINT OF TIME AND NOW FIXED FOR HEARING. 4.1 FURTHER IT HAS ALSO BEEN INFORMED THAT VIDE PARA 12 THE RESPECTED ITAT HAS AFFIRMED THE ACTION OF LEARNED CIT(APPEALS) OF ESTIMATION OF PROFIT A T 8% , F OR READY REFERENCE REPRODUCED BELOW: 12. FROM THE ABOVE IT IS EVIDENT THAT SINCE THE BOOKS OF ACCOUNTS ARE NOT MAINTAINED, WHEN THAT BE THE SO, THE QUESTION OF FOLLOWING A SPECIAL METHOD OF ACCOUNTING BY THE ASSESSEE DOES NOT ARISE. THEREFORE, THE ASSESSEES ARGUMENTS I.E. PROJECTS ARE INCOMPLETE, FULL CONSIDERATION NOT RECEIVED, REGISTRATION OF PLOTS NOT DONE, POSSESSION OF PLOTS OF NOT GIVEN ETC., BECOME UNSUSTAINABLE. CONSIDERING THE BASIC FACTS OF THIS CASE, IN OUR OPINION, BOOKS OF ACCOUNTS ARE NOT MAINTAINED BY THE ASSESSEE AND THEREFORE, ASSESSING OFFICER IS JUSTIFIED IN RESORTING TO ESTIMATION OF PROFITS THE ASSESSEE REJECTING THE ASSESSEES CLAIM THAT THE PROJECTS WILL BE E STIMATED ONLY AFTER THEIR COMPLETION. CONSIDERING THE FACT THAT THE ASSESSEE HAS NOT MAINTAINED THE BOOKS OF ACCOUNTS AND NO PARTICULAR METHOD OF ACCOUNTING WAS FOLLOWED. EVEN BEFORE US, NOTHING IS BROUGHT TO OUR NOTICE THAT THE ASSESSEE HAS FOLLOWED PARTICULAR METHOD OF ACCOUNTING. ON SUCH FACT, WE CANNOT SUSTAIN THE ASSESSEES ARGUMENT THAT THE INCOME WILL ACCRUE TO THE ASSESSEE ONLY ON COMPLETION OF THE PROJECTS OF THE ASSESSEE. ON THE ISSUE OF DEMAND OF REFUND OF THE ADVANCES, WE ARE OF THE OPIN ION THAT NO SINGLE CASE IS BROUGHT TO OUR NOTICE THAT HE HAS REFUNDED THE ADVANCE RECEIVED BY HIM. WE CANNOT 3 ITA NOS.282,283&290/ NAG/2014 APPRECIATE THE FACT THAT THE ASSESSEE DOES NOT COMPLETE HIS VENTURES OR DOES NOT REFUND THE AMOUNTS TO THE BUYERS AND AT THE SAME TIME, HE DOES NOT WANT TO OFFER THE PART CONSIDERATION TO TAX ON PERCENTAGE COMPLETE METHOD. ITAT CANNOT BE A MUTE SPECTATOR TO PUBLIC CAUSE, WHEN THE ASSESSEE UNDERTAKES VENTURES, COLLECTS PART SALE CONSIDERATIONS AND DOES NOT EITHER REFUND OR REGISTER THE PLOT A GREED TO BE SOLD. REGARDING THE PERMISSIONS, IN OUR OPINION, LD. DRS ARGUMENT BECOMES RELEVANT AS THE SAME IS SUPPORTED BY VARIOUS BINDING JUDGMENTS OF THE HONBLE APEX COURT WHICH ARE RELEVANT FOR THE PROPOSITION THAT THE INCOME EARNED BY ILLEGAL METH ODS IS CHARGEABLE TO TAX UNDER THE INCOME TAX ACT, 1961 . CONSIDERING THE SAME, WE ARE OF THE OPINION THAT THE CONCLUSIONS OF THE CIT(A) EXTRACTED ABOVE ARE FAIR AND REASONABLE AND THE SAME DOES NOT CALL FOR ANY INTERFERENCE FOR ALL AYS UNDER CONSIDERATION. ACCORDINGLY WE CONFIRM THE CIT(A)S CONCLUSION OF DETERMINING THE INCOME OF THE ASSESSEE AT 8% OF THE RECEIPTS. ACCORDINGLY, GROUNDS RAISED BY THE ASSESSEE AS WELL AS THE REVENUE ARE DISMISSED. 5. IN THE LIGHT OF THE ABOVE DISCUSSION, I FIND NO REASON TO TAKE ANY OTHER VIEW IN RESPECT OF THE GROUND RAISED BY THE REVENUE DEPARTMENT IN THESE THREE APPEALS, BUT TO FOLLOW THE VIEW ALREADY TAKEN BY THE RESPECTED COORDINATE BENCH IN REST OF THE ASSESSMENT YEARS VIDE AN ORDER AS CITED SUPRA DAT ED 28 TH OCT., 2014. RESPECTFULLY FOLLOWING THE SAID DECISION ON THE SAME LINES, THE GROUNDS RAISED BY THE REVENUE ARE HEREBY DISMISSED. 6. IN THE RESULT, ALL THE THREE APPEALS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF AUGUST, 2015. SD/ - (MUKUL K. SHRAWAT) JUDICIAL MEMBER NAGPUR, DATED: 11 TH AUGUST, 2015. 4 ITA NOS.282,283&290/ NAG/2014 COPY OF ORDER FORWARDED TO : 1. THE ASSESSEE. 2. REVENUE. 3. THE CIT(A) 4. THE CIT, NAGPUR. 5. THE D.R., ITAT, NAGPUR. 6. GUARD FILE. TRUE COPY. BY ORDER WAKODE ASSISTANT REGISTRAR, ITAT, NAGPUR