BRAHAMANAND AGARWAL, Gangapur City V. DCIT, Sawai Madhopur

ITA 338/JPR/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 99296 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-08-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJ MEHRA
• Assessee Lawyers: JAVED KHAN
• Keywords: Depreciation
• Section: 143(3); 142(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YS[KK LNL; DS LE{K BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM VK;DJ VIHY LA- @ ITA NO. 338/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 BRAHAMANAND AGARWAL, THEKHEDAR, KARAMCHARI COLONY, UDAI ROAD, GANGAPUR CITY. CUKE VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE, SAWAI MADHOPUR. LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABJPA 7383 C VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT VK;DJ VIHY LA- @ ITA NO. 284/JP/2013 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2008-09 INCOME TAX OFFICER, WARD-2, SAWAI MADHOPUR. CUKE VS. BRAHAMANAND AGARWAL, PROP.- M/S BRAHAMANAND AGARWAL THEKHEDAR, KARAMCHARI COLONY, UDAI ROAD, GANGAPUR CITY, SAWAI MADHOPUR LFKK;H YS[KK LA-@THVKBZVKJ L A-@ PAN/GIR NO.: ABJPA 7383 C VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI MANISH AGARWAL (CA) & SHRI JAVED KHAN (ADV) JKTLO DH VKSJ LS @ REVENUE BY : SHRI RAJ MEHRA (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 15/07/2015 MN?KKS'K .KK DH RKJH[ K @ DATE OF PRONOUNCEMENT : 11/08/2015 ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 2 VKNS'K @ ORDER PER: T.R. MEENA, A.M. THESE ARE CROSS APPEALS, ONE BY THE ASSESSEE AND AN OTHER BY THE REVENUE ARISE AGAINST THE ORDER DATED 22/01/201 3 PASSED BY THE LEARNED C.I.T.(A), KOTA FOR THE A.Y. 2008-09. THE GRO UNDS OF ASSESSEES AS WELL AS REVENUES ARE AS UNDER:- GROUND OF ITA NO. 338/JP/2013 1 THE LD A.O. HAS ERRED IN LAW AS WELL AS IN FACT IN ARBITRARILY TAKING NET PROFIT RATIO 12.50% INSTEAD OF 5.66% AS DECLARED BY THE ASSESSEE AND CIT(A) HAS ERR ED IN LAW AS WELL AS IN FACTS IN SUSTAINING THE SAME BY REDUCING NET PROFIT FROM 12.50% TO 9%. 2. THE LD A.O. AND CIT(A) HAS ERRED IN LAW AS WELL AS IN FACT IN WRONGLY CONSIDERING FDR INTEREST AS INCOME FROM OTHER SOURCES WITHOUT CONSIDERING THE DIRECT NEXUS BETWEEN INTEREST PAID TO BANKS AND INTEREST RECEIVED ON FDRS. GROUND OF ITA NO. 284/JP/2013 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A), KOTA HAS ERRED IN:- I) RESTRICTING THE ADDITION AT RS. 14,87,696/- BY A PPLYING NP RATE OF 9% AS AGAINST TOTAL ADDITION OF RS. 20,66,2 44/- MADE BY A.O. BY APPLYING NP RATE OF 12.50%; ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 3 II) DELETING THE ADDITION OF RS. 3,99,086/- OUT OF TOTAL ADDITION OF RS. 4,08,112/- ON ACCOUNT OF APPLYING N ET PROFIT ON CREDITS APPEARING IN BANK ACCOUNT; III) DELETING THE ADDITION OF RS. 7,98,000/- MADE B Y THE A.O. ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. 2. GROUND NO.1 OF THE ASSESSEES APPEAL AS WELL AS R EVENUES APPEAL ARE AGAINST ARBITRARILY TAKING NET PROFIT RA TIO 12.50% INSTEAD OF 5.66% AND RESTRICTING THE ADDITION OF RS. 14,87,696 /- BY APPLYING NP RATE OF 9% AS AGAINST TOTAL ADDITION OF RS. 20,66,2 44/- MADE BY THE A.O. BY APPLYING NP RATE OF 12.50%. THE LD ASSESSING OFFICER OBSERVED THAT THE ASSESSEE FILED RETURN FOR A.Y. 2008-09 ON 25/10/2008 AT RS. 9,02,010/-. THE CASE WAS SCRUTINIZED U/S 143(3) OF TH E INCOME TAX ACT, 1961 (HEREINAFTER REFERRED AS THE ACT). HE FUR THER OBSERVED THAT HE HAD ISSUED NOTICE U/S 143 (2) ON 03/09/2009. THERE WA S APPEARANCE OF THE AUTHORIZED REPRESENTATIVE BEFORE THE ASSESSI NG OFFICER BUT NO REQUIRED DETAILS WERE FILED ON GIVE DATE. AGAIN ON 2 2/02/2010, NOTICE U/S 143(2) AND 142(1) WERE ISSUED WITH DETAILED QUEST IONNAIRE AND CASE WAS FIXED FOR 04/3/2010. IN RESPONSE TO THIS NO TICE, NEITHER ASSESSEE APPEARED NOR ANY REPLY FILED BEFORE HIM. O N 22/07/2010, NOTICE U/S 143(2) WAS AGAIN ISSUED TO THE ASSESSEE A ND CASE WAS FIXED FOR HEARING ON 03/8/2010. THERE WAS NO RESPONSE FROM THE ASSESSEE ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 4 ON THIS DATE ALSO. AGAIN THE CASE WAS REFIXED ON 17/ 08/2010 THROUGH NOTICE U/S 143(2) AND CASE WAS REFIXED FOR 17/08/201 0. THE ASSESSEES AR ALONGWITH ASSESSEES SON WERE APPEARED BUT THEY AG AIN SOUGHT ADJOURNMENT FOR 26/8/2010. ON 26/08/2010 BOTH THE P ERSONS AGAIN APPEARED AND PARTLY FILED INFORMATION BEFORE THE AS SESSING OFFICER AND CASE WAS ADJOURNED FOR 02/9/2010. ON 02/9/2010 NOBOD Y APPEARED FROM THE SIDE OF THE ASSESSEE AND CASE WAS REFIXED FOR 28/09/2010 BY ISSUING NOTICE U/S 143(2) OF THE ACT AND CASE WAS FI XED FOR 06/10/2010. ON 06/10/2010, THE AR OF THE ASSESSEE SHRI RAHUL DE V SHARMA AND SHRI ARUN KUMAR AGARWAL, SON OF THE ASSESSEE APPEARE D AND FILED G.P. CHART FOR LAST THREE YEARS AND DETAILS OF RAW MATERI AL PURCHASED. THE ASSESSEE WAS REQUESTED TO PRODUCE THE BOOKS OF ACCO UNT AND DETAILS OF SITE WISE, STOCK REGISTER, VOUCHERS FOR LABOUR CHARG ES AND DIESEL AND FUEL VOUCHERS FOR VERIFICATION AND CASE WAS FIXED FO R 15/10/2010. ON 15/10/2010 AGAIN THE ASSESSEE DID NOT APPEAR. ON 26 /10/2010 NOTICE U/S 143(2) WAS ISSUED FOR FIXING THE CASE FOR 08/11/ 2010. IN RESPONSE TO THIS NOTICE, THE AUTHORIZED REPRESENTATIVE SHRI ARUN KUMAR AGARWAL, SON OF THE ASSESSEE APPEARED BEFORE THE ASSESSING O FFICER AND HE REQUESTED TO PRODUCE COMPLETE BOOKS OF ACCOUNT WITH VOUCHERS FOR VERIFICATION AND CASE WAS ADJOURNED FOR 15/11/2010. NOTICE U/S 143(2) ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 5 WAS AGAIN ISSUED ON 22/11/2010 AND ASSESSEE WAS ASKED TO MADE COMPLIANCE OF EARLIER QUERY ON 29/11/2010. ON 29/11 /2010, THE ASSESSEE SHRI BHARAMANAND AGARWAL, HIS AUTHORIZED RE PRESENTATIVE AND HIS SON SHRI ARUN KUMAR AGARWAL APPEARED AND AGAIN H E WAS REQUESTED TO PRODUCE COMPLETE BOOKS OF ACCOUNT ALON GWITH BILLS/VOUCHERS POSITIVELY ON 06/12/2010 AND IT WAS A LSO INFORMED TO HIM THAT NO DATE WOULD BE ALLOWED TO YOU. ON 06/12/2010, THE ASSESSEE APPEARED ALONGWITH AR AND HIS SON AND HE DID NOT PRO DUCE THE COMPLETE BOOKS OF ACCOUNT AND HE FILED AN AFFIDAVIT THAT THERE WAS A DISPUTE WITH THE ACCOUNTANT AND HE WAS NOT GIVEN THE BOOKS OF ACCOUNT. THEREFORE, HE IS UNABLE TO PRODUCE THE COMP LETE BOOKS OF ACCOUNT FOR VERIFICATION. THE ASSESSEE WAS AGREED TO ASSESS HIS INCOME @ NET PROFIT OF 8%. THE LD ASSESSING OFFICER MADE ASS ESSMENT IN ABSENCE OF COMPLETE BOOKS OF ACCOUNT, NON-COOPERATI ON OF THE ASSESSEE IN PRODUCING THE BILLS/VOUCHERS AND HE DEC IDED THE CASE. HE RELIED ON THE DECISION OF THE HONBLE RAJASTHAN HIG H COURT IN THE CASE OF SHRI RAM JHANWAR LAL VS. ITO & ORS. 177 TAXMAN 13 5 AND SUMAN STEEL VS. UNION OF INDIA 127 TAXMAN 353 AND APPLIED 12.5% N.P. ON TOTAL RECEIPT OF RS. 1,65,29,950/-, WHICH WAS WORKED O UT AT RS. 20,66,244/-, WHICH WAS THE TOTAL INCOME EARNED FROM T HE CONTRACT ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 6 BUSINESS BY THE ASSESSEE. THE PENALTY PROCEEDING U/S 271(1)(C) WAS ALSO INITIATED FOR CONCEALMENT OF INCOME. 3. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD ALLOWED THE APPEAL PARTLY BY OBSERVING THAT THE ASSESSING OFFIC ER AS WELL AS THE LD CIT(A) ARE RIGHT IN CONFIRMING THE REJECTION OF BOOK RESULT. HOWEVER, IN HIS OPINION BY CONSIDERING THE TURNOVER OF THE ASSE SSEE, A NET PROFIT RATE OF 9% WAS CONSIDERED REASONABLE. 4. NOW BOTH ARE IN APPEALS BEFORE US. THE LD AR OF TH E ASSESSEE HAS SUBMITTED THAT THE ASSESSEE IS A CIVIL CONTRACT OR AND HAVING WORK FOR GOVERNMENT DEPARTMENT LIKE PHED AND MARKETING B OARD AND HAS DECLARED A NET PROFIT RATE OF 5.66% ON THE GROSS RE CEIPT OF RS. 1,65,29,950 TOTALING TO RS. 9,35,595/-. THE BOOKS OF ACCOUNT ARE SUBJECT TO AUDIT U/S 44AB AND THE NECESSARY REPORT OF THE TAX AUDIT WAS ALSO SUBMITTED BEFORE THE LD A.O.. DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, ALL THE POSSIBLE DETAILS AV AILABLE WITH ASSESSEE WERE SUBMITTED AS ASKED FOR BY THE LD ASSESSING OFF ICER IN THE SHAPE OF COPY OF BANK STATEMENTS, COPY OF FD ACCOUNT, DET AILS REGARDING HOUSEHOLD WITHDRAWALS AND LIST OF LIABILITIES FOR TH E YEAR UNDER APPEAL ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 7 AND ALSO THE DETAILS REGARDING PURCHASE OF RAW MATER IALS. HOWEVER, CERTAIN DETAILS SUCH AS BOOKS OF ACCOUNT, STOCK REG ISTER COULD NOT BE PRODUCED BY THE ASSESSEE FOR THE REASON OF AN ONGOI NG DISPUTE WITH THE ACCOUNTANT OF ASSESSEE WHO IS IN THE POSSESSION OF ASSESSEES BOOKS OF ACCOUNT. THIS FACT WAS DULY SUBMITTED BEFOR E THE LD A.O. ALONGWITH AN AFFIDAVIT IN SUPPORT THEREOF WHICH IS PA RT OF THE RECORD AND DULY ACKNOWLEDGED BY LD A.O. IN HIS ASSESSMENT O RDER. IT WAS FURTHER REQUESTED THAT THE INCOME OF THE ASSESSEE B E ESTIMATED BY APPLYING PROFIT RATE OF 8% SUBJECT TO ALLOWANCE OF I NTEREST AND DEPRECIATION, WHICH REQUEST WAS NOT ENTERTAINED BY TH E LD A.O. THE LD AR FURTHER SUBMITTED THAT THE ASSESSEE HAS MAINTAIN ED PROPER BOOKS OF ACCOUNT, WHICH WAS DULY AUDITED. WHO HAD NOT POINTED OUT ANY SINGLE DEFECTS/SHORT COMINGS IN THE BOOKS OF ACCOUNT MAINT AINED BY THE ASSESSEE. THE LD AR HAS DRAWN OUR ATTENTION ON PAGE NOS. 12 TO 33, WHICH IS COPY OF AUDIT REPORT. IT IS FURTHER ARGUED THAT THE LD ASSESSING OFFICER HAS NOT CONSIDERED THE AUDIT REPORT WHERE NO DEFECTS HAD BEEN POINTED OUT BY THE AUDITOR AND HE ESTIMATED THE NET PROFIT @ 12.5% WITHOUT ALLOWING THE DEDUCTION ON ACCOUNT OF INTEREST AND DEPRECIATION RESULTING INTO THE APPLICATION OF NP RATE, WHICH IS MORE THAN DOUBLE OF THE NP RATE DECLARED BY THE ASSESSEE. WHILE DOING S O, THE LD A.O. ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 8 COMPLETELY BRUSHED ASIDE THE GENUINE REASON PLEADED BY ASSESSEE THAT THE BOOKS OF ACCOUNT OWING TO THE ONGOING DISPUTE WIT H ASSESSEES ACCOUNTANT AND ALSO IGNORED THE AFFIDAVIT SUBMITTED IN SUPPORT THEREOF. THEREFORE, THE NET PROFIT RATE ASSESSED BY THE ASSES SING OFFICER, CONFIRMED BY THE CIT(A) IS NOT JUSTIFIABLE. THE JUST IFICATION OF DECLINE OF NP RATE HAS BEEN SUBMITTED BEFORE THE LD CIT(A) THAT CERTAIN EXPENDITURES WERE INCURRED IN THE YEAR UNDER APPEAL FOR THE FIRST TIME, WHICH WERE NOT THERE IN THE PRECEDING YEARS. THE ASSES SEE HAD DEBITED SALES TAX AT RS. 2,64,269/-, WHICH HAD REDUCED THE P ROFIT BY 1.6%. SIMILARLY THE LABOUR EXPENSES HAD INCREASED. THERE WA S A TOUGH COMPETITION IN AWARDING THE CONTRACT AT LOWER RATE CO MPARED TO RATE RECEIVED IN THE PRECEDING YEAR, WHICH ULTIMATELY RES ULTED INTO LOWERING THE PROFIT OF THE ASSESSEE. THE LD ASSESSING OFFICER RELIED UPON THE CASE, WHICH ARE DISTINGUISHABLE ON FACTS AND CIRCUMS TANCES. FINALLY HE SUBMITTED THAT 9% RATE CONFIRMED BY THE CIT(A) IS V ERY HIGHER SIDE AND SAME IS DESERVED TO BE REDUCED TO A REASONABLE PROFIT RATE SUBJECT TO STATUTORY ALLOWING OF DEPRECIATION AND INTEREST. 5. AT THE OUTSET, THE LD DR HAS VEHEMENTLY SUPPORTE D THE ORDER OF THE ASSESSING OFFICER AND ARGUED THAT AS PER AUDIT REPORT, THE ASSESSEE ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 9 WAS MAINTAINING BOOKS OF ACCOUNT ON COMPUTER, WHICH C ANNOT BE TAKEN BY THE MUNIM/ACCOUNTANT. THE ASSESSEE MIGHT HAVE GEN ERATED THE HARD COPY OF THE BOOKS OF ACCOUNT FROM THE COMPUTER . THEREFORE, THE ASSESSEES REPLY IS BEYOND TRUTH. FURTHER AS PER AU DIT REPORT, THE ASSESSEE VALUED CLOSING STOCK ON ESTIMATE BASIS. HE FURTHER ARGUED THAT IN PRECEDING YEAR, GP RATE WAS 18.81%, WHICH HAS BEEN GONE DOWN TO 11% DURING THE YEAR UNDER CONSIDERATION. SIMILARLY, THE NET PROFIT IN PRECEDING YEAR WAS 9.1%, WHICH HAS ALSO GONE DOWN TO 5.66%, THE ASSESSEE HAS NOT EXPLAINED ANY REASON. THEREFORE, OR DER OF THE ASSESSING OFFICER MAY PLEASE BE CONFIRMED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. AS PE R AUDIT REPORT, THE ASSESSEE MAINTAINED BOOKS OF ACCOUNT ON COMPUTER. H OWEVER, THE ASSESSEE HAD CLAIMED THAT BOOKS WERE WITH THE ACCOUNT ANT, WHO WAS NOT IN TALKING TERMS WITH THE ASSESSEE DUE TO DISPUT E WITH THEM. THE ASSESSEE ONLY FILED AN AFFIDAVIT BEFORE THE A.O. TH AT THE ASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER BY I SSUING FIRST NOTICE IN THE MONTH OF SEPTEMBER, 2009 AND WAS COMPLETED ON 28 /12/2010. THE ASSESSEE FILED AN AFFIDAVIT BEFORE THE ASSESSING OF FICER ON 06/12/2010 ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 10 AND AGREED TO ASSESS THE NET PROFIT @ 8% ON TOTAL RE CEIPTS. IT IS ALSO UNDISPUTED FACT THAT THE ASSESSEES G.P. AS WELL AS N.P. HAD GONE DOWN DURING THE YEAR. THE AFFIDAVIT FILED BY THE ASSESSEE IS NOT WITHOUT ANY DOUBT AS BOOKS WERE MAINTAINED IN COMPUTER, WHICH CAN NOT BE TAKEN BY THE ASSESSEE. ON VERIFICATION OF ASSET DISCLOSED BY THE ASSESSEE, HE HAS ONLY JEAP. IT APPEARS THAT THIS COMPUTER OWNED B Y THE SOMEBODY ELSE, THEREFORE, THE CLAIM OF ASSESSEE THAT ACCOUNT ANT HAD TAKEN BOOKS OF ACCOUNT APPEARS TO BE FALSE. ACCORDINGLY, WE CONF IRM THE NET PROFIT @ 9% SUBJECT TO THIRD PARTY INTEREST AND DEPRECIATIO N. THE ASSESSING OFFICER IS DIRECTED TO VERIFY THIS ASPECT FROM THE PAST RECORD WHETHER THE ASSESSEES NET PROFIT WAS ASSESSED SUBJECT TO IN TEREST AND DEPRECIATION IF OTHERWISE FOUND BY THE ASSESSING OFF ICER NO INTEREST AND DEPRECIATION WILL BE ALLOWABLE ON THE NET PROFIT DECI DED BY THE BENCH @ 9%. ACCORDINGLY, WE CONFIRM THE ORDER OF THE LD CIT(A ). 7. THE 2 ND GROUND OF REVENUES APPEAL IS AGAINST DELETING THE ADDITION OF RS. 3,99,086/- OUT OF TOTAL ADDITION OF RS. 4,08,112/-. THE LD ASSESSING OFFICER OBSERVED THAT HE SCRUTINIZED COPY OF BANK ACCOUNT OF THE ASSESSEE, THE SAME WAS MAINTAINING IN THE PUNJAB NATIONAL BANK (IN SHORT PNB), GANGAPUR CITY HAVING BANK ACCOUNT N O. 7153, IN WHICH ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 11 VARIOUS DEPOSITS WERE MADE. THE ACCOUNT WAS PARTLY CRE DITED THROUGH CASH DEPOSIT AND PARTLY FROM CLEARINGS. AS THE ASSE SSEE HAD NOT PRODUCED COMPLETE BOOKS OF ACCOUNT, PURCHASE AND SA LES AND OTHER EXPENSES VOUCHERS FOR VERIFICATION TO THE ASSESSING OFFICER, THEREFORE, IT WAS DIFFICULT TO VERIFY THE DEPOSITS MADE IN THE BAN K ACCOUNT BY THE ASSESSING OFFICER. THE LD ASSESSING OFFICER OBSERVE D THAT THE AMOUNT RECEIVED THROUGH CLEARINGS IN THIS BANK ACCOUNT WERE FROM OUT OF CONTRACT RECEIPT BUT CASH DEPOSITED IN THE BANK ACC OUNT IS UNDISCLOSED INCOME OF THE ASSESSEE. ON PAGE 4 OF THE ASSESSMENT ORDER, THE LD ASSESSING OFFICER HAD GIVEN DETAIL OF CASH DEPOSITE D IN THE BANK ACCOUNT TO THE TUNE OF RS. 34,64,896/-. THE LD ASSES SING OFFICER ENQUIRED FROM THE BANK ABOUT THESE DEPOSITS MADE BU T THE BANK HAD ALSO NOT SUPPLIED THE DETAILS OF THESE DEPOSITS. HE FINALLY CONCLUDED THAT THESE UNDISCLOSED CASH DEPOSITS IS ALSO FROM THE CONTRACT BUSINESS, THEREFORE, HE APPLIED 12% N.P. RATE ON RS . 32,64,896/- AND MADE ADDITION OF RS. 4,08,112/- IN THE INCOME OF TH E ASSESSEE. 8. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OF FICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAS PARTLY CONFIRMED THE ADDITION BY OBSERVING THAT MOST OF TH E ENTRIES WERE ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 12 TRANSFER ENTRIES FROM ASSESSEES OTHER BANK ACCOUNT . FEW ENTRIES RELATED TO CONTRACTUAL RECEIPTS, TWO ENTRIES OF RS. 3.00 LACS AND RS. 2.00 LAC RELATED TO CHEQUES, WHICH WERE NOT CLEARED. OUT OF REMAINING ENTRY OF RS. 9026/- RELATED TO FDR INTEREST AND ENT RY OF RS. 1,80,000/- RELATED TO CASH DEPOSITED. THE INTEREST OF FDR AMOUN TING TO RS. 9026 IS LIABLE TO BE TAXED UNDER THE HEAD INCOME FROM OT HER SOURCES. THEREFORE, HE CONFIRMED THE ADDITION OF RS. 9,026/-. 9. NOW THE REVENUE IS IN APPEAL BEFORE US. THE LD DR HAS VEHEMENTLY SUPPORTED THE ORDER OF THE ASSESSING OF FICER AND ARGUED THAT BEFORE THE ASSESSING OFFICER, THE ASSESSEE HAS NOT SUBMITTED ANY REPLY IN RESPONSE TO CREDIT ENTRY MADE IN THE BANK ACCOUNT MAINTAINED WITH PNB. THE LD CIT(A) HAS ALSO ACCEPTED THE ASSESSEE S ARGUMENT AND EVIDENCES EVEN WITHOUT PROVIDING ANY OPPORTUNITY TO THE ASSESSING OFFICER, THEREFORE, THE LD CIT(A) WAS NOT JUSTIFIED I N DELETING THE ADDITION OF RS. 3,99,086/-. 10. AT THE OUTSET, THE LD AR OF THE ASSESSEE HAS SU BMITTED THAT THE LD ASSESSING OFFICER HAD NOT PROVIDED ANY OPPORTUNI TY TO THE ASSESSEE. HE TREATED THE TOTAL CREDIT SIDE OF THE BANK ACCOUN T AS UNDISCLOSED CONTRACT RECEIPTS OF THE ASSESSEE AND APPLIED NET P ROFIT @ 12.5% ON IT ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 13 AND ADDITION OF RS. 4,08,112/- WAS MADE. THE ASSESSEE HAD SUBMITTED BEFORE THE LD CIT(A) THAT THESE CREDIT ENTRIES IN TH E PNB ACCOUNT WERE ALMOST ALL OF THE CLEARING INTO THE PNB ACCOUNT FR OM ANOTHER BANK ACCOUNT MAINTAINED WITH SBBJ BEING ACCOUNT NO. 51034 533452 AND ACCOUNT NO. 51029310284 AND ANOTHER ACCOUNT MAINTAI NED WITH UNION BANK OF INDIA BEING ACCOUNT NO. 498004010012043. THE ASSESSEE HAS SUBMITTED THESE EVIDENCES BEFORE THE LD CIT(A) AND H AS DRAWN OUR ATTENTION ON PAGE NO. 30 TO 52 OF THE PAPER BOOK AN D ARGUED THAT THESE CREDIT ENTRIES WERE DISCLOSED BY THE ASSESSEE. THEREFORE, ORDER OF THE LD CIT(A) MAY PLEASE BE ACCEPTED. 11. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. ON VE RIFICATION OF THE BALANCE SHEET OF THE ASSESSEE, IT IS FOUND THAT BAN K ACCOUNT IN SBBJ, GANGAPUR CITY, SBBJ, SAWAI MADHOPUR AND FDR WITH PNB, GANGAPUR CITY HAS BEEN DISCLOSED BY THE ASSESSEE. THE LD CIT(A ) HAS CONSIDERED THESE BANK ACCOUNTS AND NO ADVERSE INFERENCE HAS BE EN DRAWN BY HIM EXCEPT THE ADDITION OF RS. 9,026/-. THIS BENCH HAS CONFIRMED THE ADDITION @ 9% N.P., THEREFORE, NO ADDITION IS REQUIR ED TO BE MADE ON ACCOUNT OF ANY DISCREPANCY IN THE BANK ACCOUNT. AS HELD BY THE HONBLE ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 14 RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. G.K. CO NTRACTOR 19 DTR 305 (RAJ) WHEREIN THE HONBLE JURISDICTIONAL HIGH CO URT HELD THAT WHEN NET PROFIT IS ESTIMATED BY THE ASSESSING OFFICER BY REJECTING THE BOOK RESULT U/S 145(3) OF THE ACT, NO SEPARATE ADDITION CAN BE MADE ON ACCOUNT OF CASH CREDITOR, WHICH IS SQUARELY APPLICAB LE IN THE CASE OF THE ASSESSEE. AS WE HAVE ALREADY DECIDED THE NET PROFIT @ 9% IN THE CASE OF ASSESSEE, THEREFORE, OTHER ADDITIONS CANNOT BE M ADE. ACCORDINGLY, REVENUES APPEAL GROUND NO. 2 IS DISMISSED. 12. THE 3 RD GROUND OF THE REVENUES APPEAL IS AGAINST DELETING THE ADDITION OF RS. 7,98,000/- MADE BY THE ASSESSING OF FICER ON ACCOUNT OF UNEXPLAINED CASH DEPOSITS. THE LD ASSESSING OFFICER OBSERVED THAT ON VERIFICATION OF BANK ACCOUNT, THE ASSESSEE HAS DEPO SITED CASH ON DIFFERENT DATES TO THE TUNE OF RS. 7,98,000/-, WHIC H INCLUDES DD CANCELLATION OF RS. 90,000/-. THE ASSESSEE HAS NOT EXPLAINED SOURCE OF THESE CASH DEPOSITS, THEREFORE, HE MADE ADDITION OF RS. 7,98,000/- IN THE TOTAL INCOME OF THE ASSESSEE. 13. BEING AGGRIEVED BY THE ORDER OF THE ASSESSING O FFICER, THE ASSESSEE CARRIED THE MATTER BEFORE THE LD CIT(A), WH O HAD ALLOWED THE APPEAL BY OBSERVING THAT THE ASSESSEE HAD DISCLOSE D NET PROFIT OF RS. ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 15 9,35,596/- @ 5.66% N.P. AS AGAINST THIS HE CONFIRMED THE ADDITION AT RS. 14,87,697, WHICH RESULTED IN NET ADDITION OF RS. 5,61,126/-. THERE WAS CASH WITHDRAWAL FROM THE BANK ACCOUNT OF THE ASSES SEE AND NET ADDITION UPHELD BY THE LD CIT(A) IS ALSO AVAILABLE A T RS. 5,61,126/- FOR CASH DEPOSIT MADE BY THE ASSESSEE. THEREFORE, HE GA VE TELESCOPIC BENEFIT TO THE ASSESSEE AND ADDITION MADE BY THE AS SESSING OFFICER AT RS. 7,98,000/- WAS DELETED. 14. NOW THE REVENUE IS IN APPEAL BEFORE US. AS ALREA DY DISCUSSED IN GROUND NO.2 OF THE REVENUES APPEAL I.E. IN PRECEDI NG PARAS THAT NO ADDITION CAN BE MADE WHEN NET PROFIT RATE APPLIED IN CASE OF CONTRACTOR. 15. THE GROUND NO. 2 OF THE ASSESSEES APPEAL IS AGA INST WRONGLY CONSIDERING FDR INTEREST AS INCOME FROM OTHER SOURC ES. THE ASSESSEE HAS DISCLOSED FDR INTEREST AT RS. 1,00,174/- IN THE COMPUTATION OF INCOME. THIS GROUND HAS NOT BEEN TAKEN BEFORE THE LD CIT(A) AND IS TAKEN BEFORE US. 16. THE LD AR SUBMITTED THAT FDRS WERE MADE IN THE NO RMAL COURSE OF BUSINESS AS INCOME FROM OTHER SOURCES INSTEAD OF INCOME OF BUSINESS AS DECLARED BY THE ASSESSEE, THEREFORE, DI D NOT CONSIDER THE ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 16 SAME WHILE ESTIMATING THE INCOME OF THE ASSESSEE BY APPLYING NP RATE ON CONTRACT RECEIPTS. DURING THE COURSE OF ASSESSME NT PROCEEDINGS, THE ASSESSING OFFICER HAD NOT MADE ANY QUERY ON THIS IS SUE. THE FIXED DEPOSITS ON WHICH INTEREST OF RS. 1,00,174/- WAS EARN ED WERE MADE TO OBTAIN BANK GUARANTEES IN SUPPORT OF CONTRACT AWARDE D BY THE AWARDERS AS PER TERMS OF THE TENDER. CONTRACT ALLOWED ONLY WHEN SUCH BANK GUARANTEES ARE TENDERED. THE FDRS WERE MADE UNDE R COMPULSION TO FULFILL THE REQUIREMENT OF TENDER, THEREFORE, IN TEREST EARNED DESERVES TO BE TREATED INCOME FROM BUSINESS AND PROFESSION I NSTEAD OF INCOME FROM OTHER SOURCES. 17. THE LD DR HAS VEHEMENTLY OPPOSED THE ASSESSEES SUBMISSION AND ARGUED THAT THE ASSESSEE HAS NOT CHALLENGED THI S ISSUE BEFORE THE LD CIT(A). THERE IS NO APPLICATION BEFORE THE HONBL E ITAT FOR ADMISSION OF ADDITIONAL GROUND, THEREFORE, SAME IS NOT MAINTAINABLE BEFORE THE HONBLE BENCH. 18. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. IT IS UNDISPUTED FACT REVEALED FROM THE ORDER OF THE LD CIT(A) AND FORM NO . 35 THAT THIS GROUND HAS NOT BEEN RAISED BEFORE THE LD CIT(A). FUR THER BEFORE US, NO ITA 338 & 284/JP/2013_ BRAHAMANAND AGARWAL VS. DCIT 17 APPLICATION FOR ADDITIONAL GROUND HAS BEEN MADE BY THE AR OF THE ASSESSEE. THEREFORE, THIS GROUND IS NOT MAINTAINABL E AND WE ACCORDINGLY DISMISS THE SAME. 19. IN THE RESULT ASSESSEES AS WELL AS THE REVENUE S APPEAL ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11/08/2015. SD/- SD/- VKJ-IH-RKSYKUH VH-VKJ-EHUK (R.P.TOLANI) (T.R. MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ @ JAIPUR FNUKAD @ DATED:- 11 TH AUGUST, 2015 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI BRAHAMANAND AGARWAL, GANGAPUR CITY. 2. IZR;FKHZ @ THE RESPONDENT- THE DCIT, CIRCLE, SAWAI MADHOPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 338 & 284/JP/2013) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR