ITO, SRIGANGANAGAR V. M/s. Ganesh Builders, SRIGANGANAGAR

ITA 312/JODH/2014

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 7806 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 07-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Rejection of books of accounts; Depreciation
• Section: 143(3); 263; 2

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO. 312 /JODH/2014 (A.Y. 200 8 - 09 ) ITO , WARD - 2, VS. M/S. GANESH BUILDERS, SRIGANGANAGAR . 1 - C - 19, JAWAHAR NAGAR , SIRGANGANAGAR. PAN NO. AABFG 1354 Q (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE . DEPARTMENT BY : SHRI N.A. JOSHI - D.R. DATE OF HEARING : 0 8 / 0 8 /201 4 . DATE OF PRONOUNCEMENT : 11 /0 8 /201 4 . O R D E R PER N.K. SAINI, A.M TH IS IS AN APPEAL BY THE DEPARTMENT AGAINST THE ORDER DATED 13 /02 /2014 OF L D . CIT(A), BIKANER . AT THE TIME OF HEARING, NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NEITHER ANY AD J OURNMENT WAS SOUGHT, WE THEREFORE, PROCEEDED TO DECIDE THIS APPEAL EXPARTE QUA THE ASSESSEE AFTER HE A RING THE LEARNED D.R., OF COURSE, ON MERIT S . 2 2 THE ONLY GROUND RAISED IN THIS APPEAL READS AS UNDER: - ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ALLOWING THIRD PARTY INTEREST AMOUNTING TO RS. 13,34,749/ - 3. FACTS RELATING TO THIS CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A CONTRACTOR AND THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER U/S. 143(3) OF THE I.T. ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT IN SHORT) . THE ASSESSING OFFICER REJECTED THE BOOKS OF ACCOUNTS U/S. 145(3) OF THE ACT AND APPLIED NET PROFIT RATE OF 8.07%. THE ASSESSING OFFICER ALSO ALLOWED DEPRECIATION AND INTEREST TO THE PARTNERS, HOWEVER, INTEREST TO THIRD PARTIES WAS NOT ALLOWED. 4. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER TO THE LD. CIT(A) , WHO ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE JUDGMENTS OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. JAIN CONSTRUCTION CO. REPORTED IN 22 TW 747 AND M/S. BHUMI VA BHAWAN PATH NIRMAN (BOHRA) REPOTED IN 258 ITR 440 (RAJ.) . HE ALSO MENTIONED THAT THE ITAT IN ASSESSEES OWN CASE ALSO APPROVED THE INTEREST PAID TO THE THIRD PARTIES WHILE DECIDING THE APPEAL FOR THE A.Y. 2007 - 08 AGAINST THE ORDER OF LD. CIT(A) PASSED U/S. 263 OF THE ACT. NOW THE DEPARTMENT IS IN APPEAL. 3 5. LEARNED D.R. , ALTHOUGH, SUPPORTED THE ORDER OF THE ASSESSING OFFICER, BUT COULD N O T CONTROVERT THE FINDINGS GIVEN BY THE LD. CIT(A) . 6 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED D.R. AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE , IT IS NOTICED THAT THE LD. CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE ON ACCOUNT OF INTEREST PAID TO THE THIRD PARTIES OUT OF THE NET PROFIT DETERMINED BY APPLYING THE NET PROFIT RATE. THE LD. CIT(A) FOLLOWED THE DECISION OF THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE A.Y. 2007 - 08 AND ALSO THE JUDGMENTS OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S. JAIN CONSTRUCTION CO. REPORTED IN 22 TW 747 AND M/S. BHUMI VA BHAWAN PATH NIRMAN (BOHRA) REPO R TED IN 258 ITR 440 (RAJ.). WE, THEREFORE, DO NOT SEE ANY MERIT IN THIS APPEAL OF THE DEPARTMENT . 7 . IN THE RESULT, APPEAL OF THE DEPARTMENT IS DISMISSED . ( ORDER PRONOUNCED IN THE COURT ON 11 TH AUGUST , 201 4) . SD/ - SD/ - ( HARI OM MARATHA ) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 11 TH AUGUST , 201 4 . VR/ - 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE CIT(A) 5. THE D.R SR. PRIVATE SECRETARY , ITAT, JODHPUR .