Bijay Kumar Nayak, Cuttack V. ITO, Dhenkanal Ward, Dhenkanal

ITA 293/CTK/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7570 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 26-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: S N SAHU

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO. 293 /CTK/201 6 ASSESSMENT YEAR : 2009 - 2010 SRI BIJAY KUMAR NAYAK, S/O. DANDADHAR NAYAK, KUSUPANGA, DHENKANAL VS. ITO, DHENKANAL PAN/GIR NO. AEHPN 6777 L (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.N.SAHU, AR REVENUE BY : SHRI D.K.PRADHAN , DR DATE OF HEARING : 10 /11 / 2016 DATE OF PRONOUNCEMENT : 10 /11 / 2016 O R D E R THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - 2, BHUBANESWAR , DATED 22.4.2016 , FOR THE ASSESSMENT YEA 2009 - 2010 . 2. THE SOLE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE LD CIT (A) IN CONFIRMING THE ORDER OF THE ASSESSING OFFICER ESTIMATING THE NET PROFIT OF THE AS SESSEE AT 7% IN PLACE OF 5.2% SHOWN BY THE ASSESSEE. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, THE ASSESSEE IS IN CONTRACT BUSINESS AND TRUCK 2 ITA NO. 293/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 PLYING ACTIVITIES. THE ASSESSEE FILED THE RETURN OF INCOME SHOWING INCOME OF RS.2,42,118/ - . THE ASSESSING OFFICER OBSERVED THAT ON VERIFICATION OF FORM 26AS, IT IS FOUND THAT THE ASSESSEE HAS SHOWN GROSS RECEIPTS OF RS.44,98,268/ - WITH TDS CLAIM OF RS.86,464/ - , WHEREAS THE GROSS RECEIPT AS PER 26AS IS R S.53,44,626/ - WITH TDS OF RS.1,05,671/ - . ON A QUERY BY THE ASSESSING OFFICER, THE ASSESSEE SUBMITTED THAT THE MATTER WAS FOUR YEARS OLD AND THE ACCOUNTANT HAS MAINTAINED THE BOOKS OF ACCOUNT WHICH ARE AUDITED BY THE CHARTERED ACCOUNTANT AND, THEREFORE, TH E ASSESSEE CANNOT BE PENALIZED FOR THE MISTAKE OF THE ACCOUNTANT OR AUDITOR. THE ASSESSING OFFICER NOT BEING SATISFIED WITH THE EXPLANATION OF THE ASSESSEE, ESTIMATED THE NET PROFIT @ 7% ON THE GROSS RECEIPTS OF RS.53,44,626/ - , WHICH WORKED OUT TO RS.3,74 ,125/ - . 4. ON APPEAL, LD CIT (A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. BEFORE ME, THE ONLY SUBMISSION OF LD A.R. OF THE ASSESSEE IS THAT ESTIMATION OF INCOME AT 7% OF CONTRACT RECEIPT IS ON A HIGHER SIDE AND THAT IT WOULD BE FAIR AND REASONABLE TO ESTIMATE THE INCOME AT 6% OF THE GROSS CONTRACT RECEIPTS OF RS.53,44,626/ - . 6. ON THE OTHER HAND, LD D.R. DID NOT MAKE ANY SERIOUS ARGUMENTS AGAINST THE SUBMISSION OF LD A.R. OF THE ASSESSEE. 3 ITA NO. 293/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 7. I FIND THAT THIS BENCH OF THE TRIBUNAL IN THE CASE OF PHOOLCHAND AGARWAL & COMPANY IN ITA NO.182/CTK/2005 ORDER DATED 7.7.2005 AND IN THE CASE OF ROAD AND ROOF CONSTRUCTION IN ITA NO.169/CTK/.2005 ORDER DATED 5.1.2006 HAS ESTIMATED THE NET PROFIT FROM CONTRACT RECEIPTS OF THE ASSESSEE AT 4.5%. FURTHER, IN THE CASE OF Y.PRASAD AND COMPANY IN ITA NO.319/CTK/2006 ORDER DATED 25.7.2007 AND M/S. AUROBINDO PRECISION TOOLS IN ITA NO.549/CTK/2012 ORDER DATED 15.3.2013 HAS ESTIMATED THE NET PROFIT FROM CONTRACT RECEIPTS OF THE ASSESSEE AT 5%. IN THE CA SE OF THE ASSESSEE, IT IS OBSERVED THAT THE ASSESSEE HIMSELF HAS DISCLOSED NET PROFIT @ 5.2%. THEREFORE, CONSIDERING THE FACTS OF THE CASE IN ITS ENTIRETY, IT WOULD BE FAIR AND REASONABLE TO ESTIMATE THE INCOME FROM GROSS CONTRACT RECEIPTS @ 6%. I, THEREF ORE, MODIFY THE ORDER OF THE LD CIT(A) ACCORDINGLY. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCE D IN THE OPEN COURT ON 10 /11 /2016 IN THE PRESENCE OF PARTIES. ( N.S SAINI) A CCOUNTANT MEMBER CUTTACK; DATED 10 /11 /2016 B.K.PARIDA, SPS 4 ITA NO. 293/CTK/2016 ASSESSMENT YEAR : 2009 - 2010 COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT :SRI BIJAY KUMAR NAYAK, S/O. DANDADHAR NAYAK, KUSUPANGA, DHENKANAL 2. THE RESPONDENT: ITO, DHENKANAL 3. THE CIT(A) , CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//