The ITO, Ward-1(4), RAJKOT-GUJARAT V. Shri Damjibhai Ratilal Patel, RAJKOT-GUJARAT

ITA 290/RJT/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4357 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 9 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-04-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 23-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR JIP
• Assessee Lawyers: D R ADHIA P T
• Keywords: Tax effect
• Section: 144

Judgement Text

T N, IN THE INCOME TAX APPELLATE TRIBU N AL; RAJKOT BENCH, RAJKOT. .. , FR T . . T , T BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM IT A NO . 290 /RJT/20 1 1 . JI I / ASSESSMENT YEAR - 200 3 - 0 4 INCOME TAX OFFICER WARD 1(4), AAYAKAR BHAVAN, 5 TH FLOOR, RACE COURSE RING ROAD, RAJKOT. ( . / APPELLANT) VS. SHRI DAMJIBHAI RATILAL PATEL, GALAXY CONSTRUCTION AND SUPPLIERS AND PANTH BOREWEL L, VIDYANAGAR MAIN ROAD RAJKOT PAN: ACNPPO403H EN. / RESPONDENT C.O.NO. 49 /RAJ/201 1 IN IT A NO . 290 /RJT/201 1 . JI I / ASSESSMENT YEAR - 2003 - 04 SHRI DAMJIBHAI RATILAL PATEL, ( . / CROSS - OBJECTOR ) VS. INCOME TAX OFFICER WARD 1(4), RAJKO T. EN. / RESPONDENT I P / REVENUE BY SHRI AVINASH KUMAR JIP /ASSESSEE BY SHRI. D R ADHIA P T / DATE OF HEARING 16.4.2013 P T / DATE OF PRONOUNCEMENT 16. 4 .2013 / ORDER .. , FR R JKOT / T. K. SHARMA, J. M THIS APPEAL OF THE REVENUE AND CROSS - OBJECTION BY THE ASSESSEE ARE AGAINST THE ORDER OF THE LD. CIT(A) - I, RAJKOT , DATED 3.3 .20 11 FOR THE ASSESSMENT YEAR 200 3 - 04 . SINCE APPEAL OF THE REVENUE AND CROSS - OBJECTION THERETO ARISIN G OUT OF THE ORDER OF THE LD. CIT(A), THESE WERE HEARD TOGETHER AND FOR THE SAKE OF CONVENIENCE ARE DECIDED BY THIS CONSOLIDATED ORDER. ITA NO.290/RJT/2011. 2. FACTS RELATING TO CONTROVERSY INVOLVED IN THIS APPEAL ARE THAT , THE AO FRAMED THE ASSESSMEN T U/S 144 R.W.S.254 OF THE INCOME TAX ACT, 1961 (FOR BREVITY THE ACT) , WHEREIN HE ASSESSED THE INCOME OF THE ASSESSEE AT RS.20,57,527/ - BY APPLYING NET PROFIT RATE AT 8% OF GROSS RECEIPT AS AGAINST THE RETURNED INCOME OF RS.2,57,552/ - . ON APPEAL, IN THE IMPUGNED ORDER THE LD. CIT(A) DIRECTED THE AO TO WORK OUT THE INCOME BY APPLYING NET PROFIT RATE OF 4% OF GROSS RECEIPT. AGGRIEVED WITH THE C.O.NO.49/RAJ/2011 IN ITA NO.290/RJT/2011. 2 DIRECTION OF THE LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THIS TRIBUNAL WIT H THE FOLLOWING GROUNDS OF APPEAL: 1. THE LD. CIT(A) - I, RAJKOT, HAS ERRED IN LAW AND ON FACTS IN RESTRICTING THE GP @ 4% OF GROSS RECEIPTS AS AGAINST ESTIMATED BY THE AO @ 8% OF THE GROSS RECEIPTS; THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ADOPTING THE NET PROFIT @4% ON SUBJECTIVE BASIS IGNORING THE COMPARATIVE CASES CITED B Y T HE AO 3 . AT THE OUTSET , SHRI D.R.ADHIA, THE LD. AR APPEARED ON BEHALF OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL AFTER GIVING APPEAL IS LESS THAN RS.3,00,000/ - . THEREFORE, THE APPEAL FILED BY THE REVENUE IS IN VIOLATION OF INSTRUCTION NO.3/2011, DATED 09 - 02 - 2011, ISSUED BY THE CBDT AND HENCE IT IS NOT MAINTAINABLE AND BE DISMISSED. SHRI AVINASH KUMAR, THE LD. DR APPEARED FOR THE REVENUE FAIRLY ADMITTED THAT THE TAX EFFE CT AFTER GIVING APPEAL EFFECT COMES BELOW RS.3,00,000/ - WHICH IS VIOLATION OF CBDT CIRCULAR DATED 9.2.2011. 4 . IN VIEW OF THE FOREGOING CONTENTIONS OF THE ASSESSEE THAT THIS APPEAL FILED BY THE REVENUE IN CONTRAVENTION OF INSTRUCTION NO.3/2011, DATED 09 - 02 - 2011 IS ACCEPTED AND APPEAL OF REVENUE IS DISMISSED AS NOT MAINTAINABLE. C.O.NO.49/RAJ/2011 5 . AT THE TIME OF HEARING, THE LD. AR OF THE ASSESSEE DID NOT PRESS THE CROSS - OBJECTION FILED BY THE ASSESSEE. THEREFORE, WE DISMISS THE SAME BEING NOT PRESSED. 6 . IN THE RESULT, REVENUES APPEAL AS WELL AS CROSS - OBJECTION FILED BY THE ASSESSEE STAND DISM ISSED. T HIS O RDER IS PRONOUNCED IN THE O PEN COURT AT THE TIME OF HEARING. SD SD ( CI / D. K. SRIVASTAVA) ( T I / T. K. SHARMA) / ACCOUNTANT MEMBER J I / JUDICIAL MEMBER R/ ORDER DATE 16. 4. 2013 . /RAJKOT SRL C.O.NO.49/RAJ/2011 IN ITA NO.290/RJT/2011. 3 RJO IO / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT - 2 EN. / RESPONDENT - N 0 / CONCERNED CIT 4. 0 - / CIT (A) . 5 EJJN, T N, / DR, ITAT, RAJKOT 6 I / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.