Shri Mansukhlal Babubhai Gajera, Gandhinagar V. The Income tax Officer, GNR Ward-2, Gandhinagar

ITA 3282/AHD/2004

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 9159 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 12-08-2009
• Assessment Year: 2001-2002
• Appeal Filed On: 10-11-2004
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P M SHUKLA SENIOR
• Assessee Lawyers: M K PATEL
• Section: 142(1); 143(1); 144

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'B' (BEFORE S/SHRI P K BANSAL AND MAHAVIR SINGH) ITA NO.3282/AHD/2004 (ASSESSMENT YEAR: 2001-02) SHRI MANSUKHLAL BABUBHAI GAJERA, PROP. SHREE GUNJAN CONSTRUCTION, PLOT NO.1059, SECTION - 2D, GANDHINAGAR V/S THE INCOME-TAX OFFICER, GANDHINAGAR WARD-2, GANDHINAGAR (APPELLANT) (RESPONDENT) PAN NO: ADIPG 0816 B APPELLANT BY :- SHRI M K PATEL, ADVOCATE RESPONDENT BY:- SHRI P M SHUKLA, SENIOR DR O R D E R PER P K BANSAL (ACCOUNTANT MEMBER) : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT( A) DATED 10 TH AUGUST, 2004, BY TAKING THE FOLLOWING EFFECTIVE GRO UNDS OF APPEAL:- 1 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPH OLDING THE ACTION OF THE AO IN PASSING THE ORDER U/S 144 OF TH E I.T. ACT. 2 THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CON FIRMING THE ESTIMATION OF NET PROFIT AT 8% OF THE GROSS RECEIPT S OF RS.1,74,91,545/- IN THE BEST JUDGMENT ASSESSMENT MA DE U/S 144. 3 THE LD. CIT(A) ON THE STRENGTH OF EVIDENCE ON RECOR D OUGHT NOT TO HAVE CONFIRMED THE ESTIMATION OF NET PROFIT AT 8% A S QUITE REASONABLE FINDING DUE SUPPORT FROM PROVISIONS OF S ECTION 44AD. 2 2 THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME WAS FILED ON 30-10-01 DECLARING TOTAL INCOME OF RS.3,16,674/- WHICH WAS ACCEPTED U/S 143(1) OF THE INCOME-TAX ACT, 1961 [THE ACT FOR SHORT] AND THE RESULTANT R EFUND OF RS.2,22,107/- WAS ALSO GRANTED TO THE ASSESSEE. THE REAFTER, THE CASE WAS SELECTED FOR SCRUTINY. THE AO ISSUED NOTIC ES U/S 142(1) /143(2) OF THE ACT REQUIRING HIM TO PRODUCE THE DOC UMENTS, ACCOUNTS AND ANY OTHER EVIDENCE ON WHICH HE MIGHT R ELY IN SUPPORT OF THE RETURN FILED BY HIM. ACCORDING TO TH E AO, THE ASSESSEE FAILED TO FURNISH THE DETAILS OF LOANS / D EPOSITS, DETAILED HOUSEHOLD EXPENSES WITH FAMILY SIZE, LOANS AND BORR OWINGS, BANK STATEMENTS, VOUCHERS FOR EXPENSES AND DETAILS OF SU NDRY CREDITORS AND DEBTORS, ETC. THE AO WAS THEREFORE OF THE VIEW THAT THE ASSESSEE DOES NOT WANT TO COOPERATE WITH THE SCRUTI NY ASSESSMENT PROCEEDINGS. HE THEREFORE HELD THAT - I AM LEFT WITH NO OTHER OPTION BUT TO COMPLETE THE ASSESSMENT TO THE BEST OF MY JUDGMENT AND ON THE BA SIS OF THE MATERIAL AVAILABLE ON RECORD. THE AO ACCORDINGLY FINALIZED THE ASSESSMENT U/S 144 OF THE ACT. THE AO ALSO ESTIMATED THE NET PROFIT AT 8% ON TOTAL WORK EXECUTED OF RS.1,74,91,545/- ON THE GROUND THAT IN THE ABSENCE OF BOOKS OF ACCOUNTS AND VOUCHERS FOR EXPENSES, IT IS NOT POSSIBLE TO ARRIVE AT THE CORRECT STATE OF AFFAIRS OF THE BUSIN ESS. WHEN THE MATTER WENT IN APPEAL BEFORE THE CIT(A), THE CIT(A) CONFIRMED THE ACTION OF THE AO. 3 THE LEARNED COUNSEL FOR THE ASSESSEE, AT THE OUT SET, VEHEMENTLY CONTENDED THAT IN RESPONSE TO SOME NOTIC ES THE ASSESSEES TAX CONSULTANT ATTENDED AND SOMETIMES TH E ASSESSEE ALSO ATTENDED PERSONALLY. HOWEVER, THE ASSESSEE WAS SUFFERING 3 FROM FROZEN SHOULDER AND BEING HIGHLY DIABETIC HE W AS TAKING MEDICAL TREATMENT. FURTHER, HIS ACCOUNTS WERE MAINT AINED AT HIS OLD BUSINESS PLACE AND, THEREFORE, HE COULD NOT REC ONCILE THE WORK OF SUBMISSION OF DETAILS CALLED FOR. THE LEARN ED COUNSEL FOR THE ASSESSEE THEREFORE SUBMITTED THAT THE MATTER MA Y BE RESTORED BACK TO THE FILE OF THE AO FOR GIVING AN OPPORTUNIT Y TO THE ASSESSEE TO REPRESENT THE CASE IN SUPPORT OF HIS CL AIM. THE LEARNED DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE AO AS WELL AS THAT OF THE CIT(A). 4 WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULL Y CONSIDERED THE SAME. WE AGREE WITH THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT DUE TO SICKNE SS, THE ASSESSEE COULD NOT RECONCILE THE WORK OF SUBMISSION OF DETAILS CALLED FOR. WE, THEREFORE, IN THE INTEREST OF JUSTI CE AND FAIR-PLAY TO BOTH THE PARTIES, SET-ASIDE THE ORDER OF THE CIT (A) AND RESTORE THE MATTER BACK TO THE FILE OF THE AO WITH THE DIRE CTION THAT THE AO SHALL RE-EXAMINE THE ISSUE IN ACCORDANCE WITH LA W AFTER PROVIDING PROPER AND REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 5 IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 04-09-2009 SD/- SD/- (MAHAVIR SINGH) JUDICIAL MEMBER (P K BANSAL) ACCOUNTANT MEMBER DATE : 04-09-2009 4 COPY OF THE ORDER FORWARDED TO : 1. SHRI MANSUKHLAL BABUBHAI GAJERA, PROP. SHREE GUN JAN CONSTRUCTION, PLOT NO.1059, SECTION - 2D, GANDHINAG AR 2. THE ITO, GANDHINAGAR WARD-2, GANDHINAGAR 3. THE CIT CONCERNED 4. THE CIT(A), GANDHINAGAR 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER DY.R/AR, IT AT, AHMEDABAD