Shri Bhavesh S. Patel, Anand V. The Income Tax Officer, Ward-2, Anand

ITA 2938/AHD/2017

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7885 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 27-12-2017
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Keywords: Revised return
• Section: 143(3); 143(2)

Judgement Text

आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठअहमदाबाद 瀈यायपीठ अहमदाबाद 瀈यायपीठ ‘बी’ अहमदाबाद। अहमदाबाद।अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, AHMEDABAD BEFORE SHRI P.M. JAGTAP, VICE-PRESIDENT AND SHRI SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER ITA No. 2938/Ahd/2017 Assessment Year : 2011-12 Shri Bhaveshbhai S. Patel, Pandav Society, Nr. Dudhani Diary, ODE, Tal. & Dist. Anand PAN : AGZPP 2683 B Vs Income Tax Officer, Ward-2, Anand / (Appellant) / (Respondent) Assessee by : Shri Jaimin Shah, CA Revenue by : Shri Abhimanyu Singh Yadav, Sr. DR /Date of Hearing : 15/06/2022 /Date of Pronouncement: 13/07/2022 आदेश/O R D E R PER P.M. JAGTAP, VICE-PRESIDENT: This appeal filed by the assessee is directed against the order of learned Commissioner of Income-tax (Appeals)-4, Vadodara (“CIT(A)” in short) dated 22.03.2016 and the solitary issue involved therein relates to the trading addition made by the Assessing Officer and confirmed by the learned CIT(A) by applying the net profit rate of 6% on the turnover of the business of trading of bananas carried on by the assessee. 2. At the outset, it is noted that there is a delay of 514 days on the part of the assessee in filing the appeal before the Tribunal. In this regard, the assessee has filed an application seeking condonation of the said delay on the following grounds:- “I am doing agricultural activities and doing full-time service and having small two tempo vehicles for carting work. I have also studied upto 10 Standard and aged about 36 years and do not know English and putting signature where my tax practitioner advise. My assessment U/s 143(3) for A.Y. 2011-12 was passed by Income Tax officer ward -2; Anand on 20/03/2014 after making addition of Rs. 5,05,547/- following the CIT(A) order for A.,Y. 2009-10. The said order was challenged before the commissioner of Income Tax (Appeals)-4, Vadodara, who have passed an order on ITA No. 2938/Ahd/2017 Bhaveshbhai S. Patel Vs. ITO AY : 2011-12 2 22/03/2016 dismissing my appeal following the previous CIT(A)'s order of A.Y. 2009-10. I have already filed appeal for A.Y. 2009-10 & A.Y. 2010-11 before the Hon'ble ITAT. The ITA No. 381/Ahd/2013 is before the Hon'ble ITAT "B" bench, who has dismissed my appeal for A.Y. 2009-10 vide order dated 14/02/2014. Therefore my local advocate Shri Balubhai Ambalal Shah has advise me not to file appeal of A.Y. 2011-12 before the ITAT, as the ITAT has dismiss appeal for A.Y. 2009-10 the same decision is applicable to A.Y. 2010-11. Therefore I have not filed an appeal for A.Y. 2011-12 before the Hon'ble ITAT. However the ITAT "A" Bench has passed an order for A.Y. 2010-11 on 16/11/2017 after allowing my appeal for statistical purpose. Therefore Shri N.C Amin, Advocate who has conduct my appeal for A.Y. 2010-11 has advise me to file appeal for A.Y. 2011-12 before the ITAT and therefore I have file my Appeal before the Hon'ble ITAT on 28/12/2017 and my appeal is delay by 514 days.” Keeping in view the reason given by the assessee in his application for condonation of delay, we are satisfied that there was a sufficient cause for the delay of 514 days on the part of the assessee in filing the appeal before the learned Tribunal and even learned DR has not raised any material objection in this regard. The said delay is accordingly condoned and this appeal of the assessee is being disposed of on merits. 3. The assessee, in the present case, is an individual who is engaged in the business of purchase and sale of bananas. The return of income for the year under consideration was originally filed by him on 27.09.2011 declaring a total income of Rs.2,60,030/-. The said return was selected for scrutiny and a notice under Section 143(2) of the Income-tax Act, 1961 (“the Act” in short) was issued by the Assessing Officer to the assessee on 01.08.2012. Thereafter, the assessee filed revised return on 06.02.2013 manually stating that the profit from the business of trading in bananas was inadvertently shown at Rs.1,32,699/- in the individual return of income as it actually pertained to the HUF. It was claimed by the assessee that the bananas were cultivated by his HUF and his relatives and the same were sold by him deriving only commission income. The Assessing Officer did not find merit in this claim of the assessee in the absence of any documentary evidence to support and substantiate the same. He also pointed out specific material defects in the books of accounts maintained by the assessee for the ITA No. 2938/Ahd/2017 Bhaveshbhai S. Patel Vs. ITO AY : 2011-12 3 business of trading in bananas and rejecting the same, he determined the income of the assessee from the business of trading in bananas at Rs.5,05,547/- being net profit @ 6% on the turnover of Rs.84,25,794/-. The said net profit rate of 6% was estimated by the Assessing Officer on the basis of the appellate order dated 27.12.2012 passed by the learned CIT(A) in assessee’s own case for AY 2009-10 on the same issue involving identical facts. The total income of the assessee thus was determined by the Assessing Officer at Rs.6,61,420/- vide an assessment order dated 20.03.2014 passed under Section 143(3) of the Act. 4. Against the order passed by the Assessing Officer under Section 143(3) of the Act, an appeal was preferred by the assessee before the learned CIT(A) and after considering the submissions made by the assessee as well as the relevant material available on record, the learned CIT(A) upheld the action of the Assessing Officer estimating the income of the assessee from the business of trading in bananas by applying the net profit rate of 6% by following his predecessor’s order passed in assessee’s own case for AY 2009-10. Aggrieved by the order of the learned CIT(A), the assessee has preferred this appeal before the Tribunal. 5. We have considered the rival submissions and also perused the relevant material available on record. As agreed by the learned representatives of both the sides, the solitary issue involved in this appeal relating to the estimation of the income of the assessee from the business of trading in bananas was also involved in assessee’s own case for the immediately preceding year, i.e. AY 2010-11 and the same was decided by the Tribunal vide paragraph no.7 of its order dated 16.11.2017 passed in ITA No.1617/Ahd/2014 as under:- 7. We have heard the rival contentions and perused the material available on record. There is no dispute with regard to the fact that in the present case both the authorities below have estimated the commission income on sale of banana. It is the contention of the assessee that apart from his own banana grown at the farm land, he is also facilitating the sale of bananas grown by other land owners in their farm land and charging commission @ 1%. He submitted that cash deposits, as observed by the authorities below, is the sale price of the bananas which has been deposited by buyers in his account with Punjab National Bank. After considering the facts of ITA No. 2938/Ahd/2017 Bhaveshbhai S. Patel Vs. ITO AY : 2011-12 4 the present case, we find that the authorities below ought to have made further enquiries. Since the estimation is made in mechanical way, we deem it proper to restore this issue to the file of the Assessing Officer to decide the issue afresh after making enquiry. The assessee is directed to furnish the requisite evidences as and when so called for. The Assessing Officer would complete this exercise preferably within six months from the receipt of this order. This ground of the assessee's appeal is allowed for statistical purposes. 6. The Tribunal thus restored the similar issue involved in assessee’s own case for AY 2010-11 to the file of the Assessing Officer to decide the same afresh after making further necessary enquiry. Since the issue involved in the year under consideration as well as all the material facts relevant thereto are similar, we respectfully follow the order of the Tribunal in assessee’s own case for AY 2010-11 and restore the issue to the file of the Assessing Officer to decide the same afresh after making further necessary enquiry. 7. In the result, the appeal of the assessee is treated as allowed for statistical purposes. Order pronounced in the open Court on 13 th July, 2022 at Ahmedabad. Sd/- Sd/- (SIDDHARTHA NAUTIYAL) (P.M. JAGTAP) JUDICIAL MEMBER VICE-PRESIDENT Ahmedabad, Dated 13/07/2022 *Bt /Copy of the Order forwarded to : 1. ! / The Appellant 2. "# ! / The Respondent. 3. $%$&' # # ( / Concerned CIT 4. # # ( ) (/ The CIT(A)- 5. + , # &' , # # &' /DR,ITAT, Ahmedabad, 6. , ./ 0 /Guard file. / BY ORDER, TRUE COPY ह # $ज (Asstt. Registrar) # # &' ITAT, Ahmedabad