ITO 25(1)(2), MUMBAI V. AMARJEET B YADAV, MUMBAI

ITA 3322/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2413 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-11-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 09-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 44AD; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI , BEFORE SHRI SHAILENDRA KUMAR YADAV, JM AND SHRI RAJESH KUMAR, AM ITA NO. 3322/MUM/2014 ( ASSESSMENT YEAR: 2009-10) INCOME TAX OFFICER - 25(1)(2) /APPELLANT ROOM NO. 204, C - 11, PRATYAKSH KAR BHAVAN, BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400051 VS. SHRI AMARJEET B. YADAV RESPONDENT 13-A, SHAKTI TOWER, SHAKTI NAGAR C.S. ROAD NO. 4, DAHISAR (E) MUMBAI 400068 PAN - AAPPY9548L APPELLANT BY: SHRI SATYA PAL KUMAR / RESPONDENT BY: NONE DATE OF HEARING : 04.11.2015 /DATE OF PRONOUNCEMENT : 24.11.2015 O R D E R PER SHAILENDRA KUMAR YADAV, JM THIS APPEAL HAS BEEN FILED BY REVENUE AGAINST THE O RDER OF CIT(A) ON FOLLOWING GROUNDS: - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN TREATING THE GROSS REC EIPT U/S. 44AD AND TO TAX THE GROSS RECEIPTS AS PROFIT AT 8% ONLY. 2 ITA NO. 3322/MUM/2014 SHRI AMARJEET B. YADAV 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A) ERRED IN CONSIDERING THAT THE A SSESSEE HAS FILED THE RETURN FOR A.Y. 2009-10 BEYOND THE DU E DATE AND HAS FILED THE SAME U/S. 139 OF THE ACT BEING TH E NON- EST RETURN. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN APPLYING PROVISION OF 44AD ON THE UNREPORTED INCOME OF RS.19,88,089/- WHILE THE ASSESSEE HAS ALREADY CLAIM EXPENSES IN THE RETURN A GAINST THIS INCOME. 2. ASSESSEE IS RUNNING A PROPRIETARY CONCERN IN THE NA ME AND STYLE OF M/S. VINDHYA ELECTRICALS. DURING THE YEAR UNDER CONSIDERATION ASSESSEE HAS SHOWN INCOME FROM BUSINESS AT ` 3,28,598/-, INCOME FROM OTHER SOURCES AT ` 531/- AND LOSS FROM HOUSE PROPERTY AT ` 20,936/-. AFTER CLAIMING DEDUCTION UNDER CHAPTER VI -A ASSESSEE HAS SHOWN NET TAXABLE INCOME AT ` 2,72,418/-. ASSESSEE HAD IN THE ORIGINAL COMPUTATION, SHOWN GROSS, RECEIPTS OF ` 9,05,244/- AND AGAINST THIS HE DECLARED PROFIT OF ` 3,28,598/- AND TDS OF ` 12,224/-. IN THE REVISED RETURN ASSESSEE HAS FURTHER CLAIMED TDS OF ` 51,294/- AND GROSS RECEIPTS HAVE BEEN DECLARED AT ` 19,88,089/-. IN VIEW OF THIS ASSESSEE WAS THEREFORE ASKED BY THE ASSESSING OFFICER AS TO WHY THIS ADDITIONAL AMOUNT OF GROSS RECEIPTS SHOULD NOT BE TREATED AS RECEIPTS NOT OFFERED TO TAX. THE STAND OF ASSESSEE IN THIS REGARD HAS BEEN THAT HE HAD FILED REVISED RETURN IN THAT GROSS RECEIPT OF ` 30,50,412/- AND NET PROFIT IS ` 3,28,598/- WHICH IS 10% OF TOTAL TURNOVER OF THE ABOVE A.Y. 2009-10 IN REVISED RETUR N. ASSESSEE 3 ITA NO. 3322/MUM/2014 SHRI AMARJEET B. YADAV CLAIMED EXPENSES OF ` 27,21,814/- WHICH WAS ACTUAL AND GENUINE. IN THIS BACKGROUND ASSESSEE HAS SHOWN PROFIT OF ` 3,28,593/- AGAINST THE TURNOVER OF ` 9,05,244/- BY CLAIMING EXPENSES OF ` 5,76,646/-. THE EXPENSES OF ` 5,76,646/- WHICH WERE ALREADY CLAIMED IN THE ORIGIN AL RETURN WERE THE EXPENSES FOR THE ENTIRE TURNOVER AN D THE DIFFERENCE IN THAT TURNOVER AS POINTED OUT AT ` 19,88,089/- WERE THE ONLY UNREPORTED TURNOVER. THE CLAIM OF TDS OF ` 51,294/- CANNOT BE ALLOWED WITHOUT TAKING INTO CONSIDERATION THE TURNO VER/GROSS RECEIPTS ON WHICH THE TDS IS CLAIMED. IN VIEW OF THE ABOVE DISCUSSION THE DIFFERENCE IN TURNOVER OF ` 19,88,089/- WHICH IS UNREPORTED IN THE RETURN OF INCOME WAS BROUGHT TO TAX. 3. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE A UTHORITY WHEREIN VARIOUS CONTENTIONS WERE RAISED ON BEHALF O F ASSESSEE AND HAVING GONE THROUGH THE SAME CIT(A) AND OBSERVED TH AT ASSESSEE IS COVERED UNDER PROVISIONS SECTION 44AD AND SHOULD BE TAXED FOR ONLY 8% OF THE GROSS RECEIPTS AS PROFIT. THE SAME HAS BE EN OPPOSED ON BEHALF OF REVENUE, INTER ALIA, SUBMITTING THAT CIT( A) ERRED IN TREATING THE GROSS RECEIPT UNDER SECTION 44AD AND TO TAX THE GROSS RECEIPTS AS PROFIT AT 8% ONLY. ACCORDINGLY THE CIT(A) ERRED IN APPLYING PROVISIONS OF SECTION 44AD ON THE UNREPORTED INCOME OF ` 19,88,089/- WHILE ASSESSEE HAS ALREADY CLAIMED EXPENSES IN THE RETURN AGAINST THIS INCOME. ACCORDINGLY THE ORDER OF THE CIT(A) BE SET ASIDE AND THAT OF 4 ITA NO. 3322/MUM/2014 SHRI AMARJEET B. YADAV THE AO BE RESTORED. ON THE OTHER HAND, NONE APPEARE D ON BEHALF OF ASSESSEE. SO THE MATTER IS BEING DECIDED EXPARTE ON THE BASI S OF THE ARGUMENTS OF LEARNED D.R. AND THE MATERIAL ON RECO RD. 4. AFTER GOING THROUGH THE RIVAL SUBMISSIONS AND MATER IAL ON RECORD WE FIND THAT ASSESSEE HAS SUBMITTED COPIES O F ITR- 4 ALONG WITH COMPUTATION OF INCOME BOTH IN ORIGINAL AND REV ISED RETURNS. ASSESSEE ALSO FILED COPIES OF TDS CERTIFICATES TO S UPPORT ITS CLAIM FOR THE TOTAL TDS CLAIM OF ` 12,224/ AND ADDITIONAL CLAIM OF ` 51,294/-. IT SHOWS THAT ASSESSEE WHILE FILING ORIGINAL RETURN HA D ONLY DECLARED TURNOVER OF ` 9,05,244/- AND CLAIMED EXPENSES OF ` 5,76,646/-. THE ADDITIONAL TURNOVER OFFERED AS WELL AS TDS HAS BEEN DECLARED SUBSEQUENTLY AND NO NEW EVIDENCE FOR ANY FURTHER CL AIM HAS BEEN GIVEN. ASSESSEE HAS MADE AN ALTERNATIVE CLAIM THAT ASSESSEE IS COVERED BY THE PROVISIONS OF SECTION 44AD SHOULD BE TAXED FOR ONLY 8% OF THE GROSS RECEIPTS AS PROFIT. THEREFORE PRINC IPLE OF 8% NET PROFIT OVER THE TURNOVER WAS FOUND TO BE REASONABLE TO BE ADOPTED FOR THE ENTIRE TURNOVER. THE TOTAL TURNOVER OF ` 28,93,333/- AND 8% THEREON OF ` 2,31,466. THUS ASSESSEE WAS GRANTED RELIEF OF ` 97,132/- AND ASSESSING OFFICER WAS DIRECTED TO GIVE CREDIT F OR THE ENTIRE AMOUNT OF TDS FOR THE YEAR WHICH WORKS OUT TO ` 63,518/-. THIS REASONED FACTUAL FINDING OF THE CIT(A) NEED NO INTE RFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 5 ITA NO. 3322/MUM/2014 SHRI AMARJEET B. YADAV 5. IN THE RESULT, APPEAL FILED BY REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH NOVEMBER, 2015. SD/ - SD/ - (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) /ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DATED 24 TH NOVEMBER, 2015 COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. / THE CIT(A) - 35, MUMBAI 4. / THE CIT - 25, MUMBAI 5. / DR, A BENCH ITAT, MUMBAI 6. GUARD FILE. / BY ORDER //TRUE COPY// /ASSTT. REGISTRAR) /ITAT, MUMBAI N.P.