ACIT, Rohtak V. Sh. Anil Kumar Arya, Rohtak

ITA 341/DEL/2009

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 8484 (ITAT-DELHI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 21-07-2009
• Assessment Year: 2000-2001
• Appeal Filed On: 29-01-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M P SINGH
• Assessee Lawyers: NAVEEN GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI G.E. VEERABHADRAPPA : VICE PRESIDENT; A ND SRHI R.P. TOLANI : JUDICIAL MEMBER ITA NO. 341/DEL/09 ASSTT. YRS: 2000-01 ACIT, CIRCLE, VS. SH. ANIL KUMAR ARYA, ROHTAK PROP. SATPRIYA & SONS, ANAJ MANDI, ROHTAK. PAN/GIR NO. ACGPA1099M ( APPELLANT ) ( RESPONDENT ) APPELLANT BY : SHRI M.P. SINGH SR. DR RESPONDENT BY : SHRI NAVEEN GUPTA ADV. O R D E R PER G.E. VEERABHADRAPPA, V.P: THIS APPEAL, BY THE REVENUE, ARISES OUT OF THE ORDE R DATED 20-11-2008 OF CIT(A)- ROHTAK, RELATING TO A.Y. 2000-01.. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE REVENUE READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE ADDITION OF RS. 22,35,168/- COMPUTED ON THE BASIS OF APPLYING 8% PR OFIT FROM CONTRACT RECEIPTS OF MORE THAN 10 TRUCKS TO THE TUN E OF RS. 2,99,89,600/- BECAUSE THE CASE OF THE ASSESSEE FALL S OUTSIDE THE AMBIT OF SECTION 44AE OF THE ACT. 3. THE ASSESSEE IS AN INDIVIDUAL AND AMONGST OTHER INCOMES, HE ALSO DERIVES INCOME FROM PLYING OF TRUCKS AND TANKERS. IN THE COURSE OF HIS TRANSPORT BUSINESS, APART FROM HIS OWN TRUCKS, HE A LSO ENGAGED THE TRUCKS ON 2 HIRE BASIS AND THE ASSESSEE HAS NOT MAINTAINED BOOK S OF ACCOUNT ON THE GROUND THAT HE OWNED ONLY 7 TRUCKS I.E. LESS THAN 1 0 TRUCKS AND THEREFORE HIS CASE IS COVERED BY THE PROVISIONS OF SEC. 44AE OF T HE ACT. THE AO DID NOT ACCEPT THE ASSESSEES CONTENTION AND APPLIED NET PR OFIT RATE OF 8% ON GROSS RECEIPTS OF TRUCKS PLYING BUSINESS AND MADE THE AD DITION. ACCORDING TO THE ASSESSING OFFICER, PROVISIONS OF SECTION 44AE ARE NOT APPLICABLE TO HIM SINCE HE PLIED MORE THAN 10 TRUCKS DURING THE YEAR. IN APPEAL, THE CIT(A), HAVING REGARD TO THE ORDER OF THE ITAT DATED 31-1-2 007 IN ASSESSEES OWN CASE IN ITA NO. 122/DEL/2005 FOR A.Y. 2001-02, ACCE PTED THE CLAIM OF THE ASSESSEE AFTER FINDING THAT THE ORDER OF THE TRIBUN AL HAS BEEN ENDORSED BY THE HONBLE HIGH COURT OF PUNJAB & HARYANA. THE REV ENUE IS AGGRIEVED. 4. THE LEARNED DR WHILE STRONGLY SUPPORTED THE ORDE R OF THE AO, AGREED THAT THE ISSUES RAISED IN THIS APPEAL ARE COVERED I N FAVOUR OF THE ASSESSEE BY THE DECISION OF THE ITAT IN ASSESSEES OWN CASE FO R A.Y. 2001-02 WHICH HAS ALSO BEEN CONFIRMED BY THE JURISDICTIONAL HIGH COURT OF PUNJAB & HARYANA.. 5. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHE R HAND, POINTED OUT THAT THE DECISION OF THE HONBLE PUNJAB & HARYANA H IGH COURT WAS TAKEN IN SPECIAL LEAVE PETITION BEFORE THE APEX COURT IN CC NO. 2447/2009 AND THE HONBLE SUPREME COURT VIDE ORDER DATED 2-3-2009 HA S DISMISSED THE SAID 3 SPECIAL LEAVE PETITION FILED BY THE REVENUE . IN OT HER WORDS, THE LEARNED COUNSEL FOR THE ASSESSEE PLEADED THAT THE ORDER OF HONBLE PUNJAB & HARYANA HIGH COURT HAS BEEN AFFIRMED BY THE HONBLE SUPREME COURT. THE LEARNED COUNSEL RELIED UPON THESE ORDERS. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIO NS AND ARE UNABLE TO FIND ANY INFIRMITY IN THE ORDER OF CIT(A). THE ISSU E IS NOW CONCLUDED AGAINST THE REVENUE BY THE DECISION OF HONBLE JUR ISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE. WE DECLINE TO INTERFERE. 7. IN THE RESULT, REVENUE S APPEAL IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 30-7-2009. SD/- SD/- (R.P. TOLANI ) ( G.E. VEERABHADR APPA ) JUDICIAL MEMBER VICE PRESIDENT DATED: 30-07-2009. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR 4