Prabhansu Kumar Mohanty, Koraput V. ACIT, Berhampur

ITA 35/CTK/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0750 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-03-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 25-01-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 17-01-2011
• Court: TRIBUNAL
• Department Lawyers: S C MOHANTY
• Assessee Lawyers: N ANAND RAO

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER / I.T.A.NO. 035/CTK/2011 STAY PETITION NO.008/CTK/2011 / ASSESSMENT YEAR 2007 - 08 PRABHANSU KUMAR MOHANTY, RAJU STEET, JEYPORE, DIST. KORAPUT. PAN: ACXPM 8998 G - - - VERSUS - ACIT, BER HAMPUR CIRCLE, BERHAMPUR. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI N.ANAND RAO, AR / FOR THE RESPONDENT: / SHRI S.C.MOHANTY, DR / ORDER . . . , , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . THE ASSESSEE HAS FILED THE APPEAL AGAINST ORDER DT.2.9.2010 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2007 - 08. 2. THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST ESTIMATION OF PROFI T @8% ON WORKS EXECUTED AFTER DEDUCTION OF VAT. 3. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE IS A CIVIL CONTRACTOR AND EXECUTES CONTRACT WORKS UNDER PRIME MINISTER GRAMYA SADAK YOJNA. THE AS SESSING OFFICER OBSERVED THAT THE ASSESSEE HAS NOT MAINTAINED BOOKS OF ACCOUNT AS PER THE REQUIREMENT U/S.44AA. THE ASSESSEE COULD NOT PRODUCE BILLS & VOUCHERS ON EXPENDITURES CLAIMED IN THE P & L ACCOUNT AS WELL. THE ASSESSING OFFICER THEREFORE, DID NOT A CCEPT THE RETURNED INCOME AND COMPUTED THE INCOME BY ADOPTING 8% ON THE GROSS CONTRACT RECEIPT OF RS.1,80,63,098 . IN APPEAL, THE LEARNED CIT(A) UPHELD THE RATE OF PROFIT AS ADOPTED BY THE ASSESSING OFFICER BUT HE REDUCED THE GROSS CONTRACT RECEIPTS BY DEDU CTING THE PAYMENT OF VAT. AGGRIEVED, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. I.T.A.NO. 035/CTK/2011 STAY PETITION NO.008/CTK/2011 2 4. THE LEARNED AR OF THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSEE UNDERTOOK CONTRACT WORKS UNDER PRIME MINISTER GRAMYA SADAK YOJNA IN REMOTE INTERIOR PLACES, WHE RE THE COST OF CONSTRUCTIONS OF WORKS ARE HIGH. RELYING ON THE DECISION OF THE ITAT, CUTTACK BENCH IN THE CASE OF JAMI RAVI SHANKAR V. ADDL.CIT IN ITA NO.205/CTK/2010 DT.15.11.2010, WHEREIN ON IDENTICAL FACTS , THE TRIBUNAL HAS DIRECTED TO ADOPT 6% NET PROF IT, THE AR OF THE ASSESSEE CONTENDED BEFORE US THAT ADOPTION OF 8% PROFIT ON THE GROSS RECEIPT AS INCOME OF THE ASSESSEE IS HIGH AND ARBITRARY. THE LEARNED DR, ON THE OTHER HAND, SUPPORTED THE IMPUGNED ORDER OF THE LEARNED CIT(A). 5. WE HAVE HEARD THE RIVA L CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE PRESENT CASE, THE ASSESSING OFFICER HAS OBSERVED THAT THE ASSESSEE FAILED TO PRODUCE ALL THE RELEVANT BOOKS OF ACCOUNT AND ALSO THE BILLS AND VOUCHERS IN SUPPORT OF EXPENDITURE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE BOOK RESULT CANNOT BE ACCEPTED AND THE INCOME HAS TO BE ESTIMATED. THE AUTHORITIES BELOW HAVE ADOPTED THE RATE OF PROFIT @8% ON GROSS RECEIPTS WITHOUT ANY MATERIAL BASIS . ON IDENTICAL FACTS, THE ITAT, CUTTACK BENCH I N THE CASE OF JAMI RAVI SHANKAR (SUPRA) HAS ADOPTED THE NET PROFIT AT 6% OF THE GROSS RECEIPTS . THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE IN ITS ENTIRETY, WE MODIFY THE IMPUGNED ORDER OF THE LEARNED CIT(A) AND DIRECT ING THE ASSESSING O FFICER TO REDUCE 1,00,000 FROM THE INCOME COMPUTED BY THE LEARNED CIT(A) ON THIS COUNT, WHICH WILL MEET THE ENDS OF JUSTICE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED . 7. THE APPEAL HAVING BEEN DISPOSED OF AS ABOVE, THE STAY PETITION FILED BY T HE ASSESSEE BECOMES INFRUCTUOUS AND THE SAME IS DISMISSED AS SUCH. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 14 TH MARCH, 2011 SD/ - SD/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER. ( ) DATE: 14 TH MARCH, 2011 ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY. I.T.A.NO. 035/CTK/2011 STAY PETITION NO.008/CTK/2011 3 - COPY O F THE ORDER FORWARDED TO: 1 . / THE APPELLANT : PRABHANSU KUMAR MOHANTY, RAJU STEET, JEYPORE, DIST. KORAPUT. 2 / THE RESPONDENT: ACIT, BERHAMPUR CIRCLE, BERHAMPUR. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY