New Janta Bus Service Pvt. Ltd., BATALA V. The Income Tax Officer, BATALA

ITA 303/ASR/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 9628 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 04-08-2016
• Assessment Year: 2000-2001
• Appeal Filed On: 18-05-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence
• Section: 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR(SMC). BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.303(ASR)/2016 ASSESSMENT YEAR:2000-01 PAN: M/S. NEW JANTA BUS SERVICE VS. INCOME TAX OFFICER, PVT. LTD. HOUSE NO.1043, WARD 2(3), VILL. CHAH BOHRAWALA, BATALA. BATALA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. TARUN BANSAL, ADV RESPONDENT BY: SH. RAHUL DHAWAN, DR DATE OF HEARING: 04/08/2016 DATE OF PRONOUNCEMENT: 11/08/2016 ORDER PER A.D. JAIN, JM: THIS IS THE ASSESSEES APPEAL FOR THE ASSESSMENT Y EAR 2000-01, AGAINST THE ORDER, DATED 08.02.2016, PASSED BY THE LD. CIT(A)-1, AMRITSAR. THE ASSESSEE HAS RAISED THE FOLLOWING EFF ECTIVE AMENDED GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT MADE U/S 144 BY THE AO WIT HOUT SERVING NOTICE TO APPELLANT IS INVALID. 2. THAT THE INITIATION OF PROCEEDINGS U/S 148 BY AO ARE BAD IN LAW. 3. THAT THE AO WRONGLY ASSESSED THE INCOME FROM BU SES AT RS. FIVE LACS WHILE FRAMING THE ASSESSMENT U/S 144 WITH OUT BRINGING ON RECORD, ANY INFORMATION, IN FAVOUR OF T HE SAME. 4. THAT THE LD. CIT(A) HAS ERRED IN LAW BY IGNORING THE MERITS OF REMAND REPORT FILED BY AO UNDER RULE 46A DATED 23.1 1.2015 2 INDICATING THAT THE TEN BUSES WERE NOT ISSUED CERTI FICATE OF FITNESS FROM 1.4.99 TO 31.03.02, HENCE ADDITION OF RS.23,000 PER BUS AS INCOME PER ANNUM FOR TEN BUSES IS UNCALL ED FOR (23000 X 10 + RS.2,30,000/-) 2. AS PER GROUND NO.4, THE LD. CIT(A) HAS FAILED TO CONSIDER THE REMAND REPORT FILED BY THE A.O. IN THIS REGARD, IT IS SEEN THAT IN PARA 6 OF THE IMPUGNED ORDER, THE LD. CIT(A) HAS OBSERVED AS FOLLOWS: 6. I HAVE GONE THROUGH THE GROUNDS OF APEAL, THE SU BMISSION, THE REMAND REPORT AND THE ASSESSMENT ORDER. GROUND NO.1. THE NOTICE HAS BEEN RIGHTLY ISSUED TO M/S NEW JANTA BUS SERVICE PVT. LTD. THE NOTICE WAS SENT AT GT ROA D BATALA, THE REGISTERED OFFICE OF THE COMPANY. THE AO HAS JUST W RONGLY MENTIONED THE NAME OF THE EX MD INSTEAD OF THE INCUMBENT MD. THIS IS ONLY A CLERICAL ERROR AND ITS POSSIBLE THAT AO WAS NOT AW ARE OF THE CHANGE OF MD AND HENCE DOES NOT HAVE ANY BEARING ON THE CA SE. THE NOTICE WAS RIGHTLY ISSUED IN THE NAME OF ASSESSEE COMPANY AND WAS SERVICED AT ITS REGISTERED OFFICE AT GT ROAD BATALA . FURTHER THE ASSESSEE DIDN'T PROTEST WITH REGARD TO SERVICE AT T HE TIME OF ASSESSMENT AND HENCE THIS GROUND IS DISMISSED. THE EXPLANATION OF THE ASSESSEE IS NOT ACCEPTABLE AS THE SHOW CAUSE NO TICE IS NOT REQUIRED TO BE ISSUED IN CASE NOTICE U/S 142 HAS AL READY BEEN ISSUED. HENCE THIS GROUND IS DISMISSED. GROUND NO. 2 & 4 THE AO HAS ESTIMATED THE INCOME FROM BUS (A) 50,000 PER ANNUM. THE ASSESSEE IS CLAIMING THAT THE BUSES WERE IMPOUNDED AND NOT RUNNING. HOWEVER ORDER FOR IMPOUN DING THE BUSES WAS PASSED ON 15.03.2001 SO OBVIOUSLY, THE BU SES WERE RUNNING IN 2000-01. THERE IS NO EVIDENCE TO THE CON TRARY SUBMITTED BY THE ASSESSEE. IT WILL BE RELEVANT TO REFER TO THE PROVISIONS OF S ECTION 44AE OF THE INCOME TAX ACT WHICH DEALS WITH COMPUTING OF PROFIT & GAIN FROM PLYING, HIRING, HARING GOODS CARRIAGES. FOR A.Y. 20 00-01 THE DEEMING INCOME PER GOODS CARRIAGE PER ANNUM WAS RS. 24000/- (RS. 2000 PER MONTH). IT IS COMMON BUSINESS KNOWLEDGE THAT TR UCKS EARN MORE THAT BUSES IN THE ROUTE ON WHICH BUSES WERE PLYING TRANSPORT BUSINESS. IN VIEW OF THIS PROVISIONS COMPETITION ON THIS ROUTE AND THE FACTS OF THE CASE IT WILL BE REASONABLE TO ESTIMATE THE INCOME FROM EACH BUS AT RS. 23,000/- PER ANNUM. THIS GROUND IS PARTLY ALLOWED. 3 GROUND NO. 3 - AS PER RECORD THE COMPANY BECAME NON OPERATIVE FROM 15TH MARCH 2001 AS PER WRIT PETITION FILED BY CHAIRMAN HARBANS SINGH DATED 22-7- 2006. THUS THE CONTENTION OF THE ASSESSEE THAT COMPANY WAS NOT OPERATIVE DURING 1-4- 1999 TO 31-3- 2000 IS FALSE. IN INCOME TAX PROCEEDINGS EVERY YEAR IS A SEPARATE YEAR AND PRECEDING AND SUCCEEDING YEARS ARE NOT REL EVANT FOR MAKING ASSESSMENT. AS REGARDS THE ADDITIONAL EVIDENCE SUBMITTED DURING THE APPEAL PROCEEDINGS AND THE REJOINDER OF THE AO, IT IS CLEA R THAT THE ASSESSEE HAS NOT CO-OPERATED WITH THE AO WILLFULLY AT THE TI ME OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS TAKEN THE PLEA THAT S ON OF THE CHAIRMAN HAD EXPIRED ON 31-8- 2005 AND THE ASSESSEE / CHAIRMAN HAD BECOME MAD DUE TO THIS LOSS. ASSESSEE HAD NOT T AKEN THIS PLEA BEFORE THE ASSESSING OFFICER. FURTHER THE ASSESSMEN T PROCEEDINGS STARTED IN THE FY 2007-2008. AS PER RECORD THE ASSE SSEE BECAME NON COOPERATIVE AFTER 15-11-2007, SO IT IS CLEAR TH AT EXPLANATION GIVEN BY ASSESSEE IS AN AFTERTHOUGHT AND HENCE NOT ACCEPTED. DURING THE SAME TIME PERIOD ASSESSEE WAS OF SOUND M IND AND FIT ENOUGH TO FIGHT THE CASES IN CIVIL COURT AS PER THE WRIT PETITION FILED BY CHAIRMAN. IN VIEW OF ABOVE AND THE NON COOPERATION WITH THE AO THE ADDITIONAL EVIDENCE IS NOT ADMITTED. 7. IN VIEW OF ABOVE THE APPEAL IS PARTLY ALLOWED. 3. I HAVE GONE THROUGH GROUNDS OF APPEAL, SUBMISSIO NS, THE REMAND REPORT AND THE ASSESSMENT ORDER. HOWEVER, SUCCEEDIN G PORTION OF THE IMPUGNED ORDER DOES NOT FIND ANY MENTION OF THE CON TENTS OF THE REMAND REPORT OF THE AO HAVING BEEN CONSIDERED. THE GRIEVA NCE OF THE ASSESSEE IN THIS REGARD, AS SUCH, IS JUSTIFIED AND IT IS ACCEPT ED. THE ORDER OF THE LD. CIT(A) IS, THUS, AN ORDER PASSED AS A RESULT OF NO N-READING AND NON- CONSIDERATION OF THE AOS REMAND REPORT. 4. ACCORDINGLY, THE MATTER IS REMITTED TO THE FILE OF THE LD. CIT(A) TO BE DECIDED AFRESH IN ACCORDANCE WITH LAW, ON TAKING IN TO CONSIDERATION THE REMAND REPORT FILED BY THE AO. THE ASSESSEE SHALL BE PROVIDED ADEQUATE 4 OPPORTUNITY TO DEFEND ITS CASE AND THE ASSESSEE, NO DOUBT, SHALL CO- OPERATE WITH THE LD. CIT(A) IN THE FRESH PROCEEDING S BEFORE HIM. 5. ORDERED ACCORDINGLY. 6. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/ 2 016. SD/- (A.D. JAIN) JUDICIAL MEMBER /SKR/ DATED: 11 /08/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:NEW JANTA BUS SERVICE PVT. LTD. BATALA 2. THE ITO WARD 2(3), BATALA. 3. THE CIT(A), ASR 4. THE CIT, ASR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.