Mr. Jyoti Ghosh, Darjeeling V. DCIT, Circle - 1, Siliguri, Siliguri

ITA 358/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2689 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-04-2010
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 17-02-2010
• Court: TRIBUNAL
• Department Lawyers: K K TRIPATHI
• Assessee Lawyers: S K TULSIYAN
• Keywords: Rejection of books of accounts; Gift
• Section: 44AD

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - A , CALCUTTA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . . , , SHRI C.D. RAO, ACCOUNTANT MEMBER . / I.T.A.NO. 358/KOL/2010 / ASSESSMENT YEAR 2004 - 05 MR. JYOTI GHOSH, SHIV MANDIR, P.O.KADAMTALA, DIST.DARJEELING ANDPG 7708 E - - - VERSUS - . DCIT, CIRCLE 1, SI LIGURI. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.K.TULSIYAN, AR / FOR THE RESPONDENT : / SHRI K.K.TRIPATHI, DR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THE ASSESSEE HAS FILED THIS APPEAL FO R THE ASSESSMENT YEAR 2004 - 05 AGAINST EXPARTE ORDER OF THE LEARNED COMMISSIONER OF INCOME - TAX (APPEALS) DT.12.11.2009 ON THE FOLLOWING GROUNDS. 1. THE ORDERS PASSED BY THE LOWER AUTHORITIES ARE ARBITRARY, WITHOUT PROPER REASONS, INVALID AND BAD IN LAW. 2 . ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED A.O. ERRED IN REJECTING AND THE CIT(A) ARBITRARILY CONFIRMING THE REJECTION OF BOOKS OF ACCOUNTS OF THE ASSESSEE OF THE CONTRACTORY BUSINESS ULS.145(3) OF THE I.T.ACT, 1961. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, BOTH THE LEARNED CIT(A) AS WELL AS THE AO ERRED IN A4OPTING 8% AT THE GROSS PROFIT OF THE ASSESSEE FROM CONTRACT BUSINESS WHEN ACTUAL PROFIT WAS 2.5% ONLY. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, BOTH TH E LEARNED CIT(A) AS WELL AS THE AO ERRED IN HAVING CONFIRMED AND ADDED A SUM OF RS.5,00,000/ - RECEIVED BY WAY OF GIFT FROM TEN DIFFERENT PERSONS WHOSE IDENTITY, GENUINENESS AND CREDITWORTHINESS WERE PROVED BY ADDUCING NECESSARY EVIDENCE AND AFFIDAVITS TO T HE EFFECT. / I.T.A.NO.358/KOL/2010 2 4. THE APPELLANT BEGS LEAVE TO AMEND, ALTER, MODIFY, ADD TO, ABRIDGE AND/ OR RESCIND ANY OR ALL OF THE ABOVE GROUNDS IN FUTURE . 2. AT THE TIME OF HEARING, THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT HE DOES NOT DISPUTE THE CONFIRMATION OF T HE ADDITION OF THE GIFTS AGGREGATING RS.5 LAKHS MADE BY THE AUTHORITIES BELOW BY NOT ACCEPTING THE GENUINENESS OF THE GIFTS OF RS.50,000 EACH RECEIVED FROM 10 PERSONS. THE LEARNED AR OF THE ASSESSEE FURTHER SUBMITTED THAT HE ALSO DOES NOT DISPUTE THE ORDER OF THE LEARNED CIT(A) IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER TO REJECT THE BOOKS OF ACCOUNT OF THE ASSESSEE AND TO ESTIMATE THE INCOME @8% OF THE GROSS CONTRACT RECEIPT OF RS.24,34,400 BY APPLYING PROVISIONS OF SECTION 44AD OF THE INCOME - TAX AC T,1961 WHICH COMES TO RS.1,94,752 AS AGAINST THE NET PROFIT SHOWN BY THE ASSESSEE OF 2.5% . THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ADDITION MADE BY APPLYING THE RATE OF 8% OF THE GROSS PROFIT ON THE CONTRACT RECEIPT AND THE GIFT OF RS.5 LAKHS SH OULD BE TELESCOPED I.E., THE SAID ADDITION SHOULD BE SET OFF AGAINST THE GIFT S OF RS.5 LAKHS SHOWN BY THE ASSESSEE. THE LEARNED DR SUBMITTED THAT HE HAS NO OBJECTION TO THE ABOVE SUBMISSIONS OF THE LEARNED AR OF THE ASSESSEE. 3. IN VIEW OF THE ABOVE SUBMI SSIONS, WE DIRECT THE ASSESSING OFFICER TO TELESCOPE THE ADDITION TO BE MADE ON ACCOUNT OF THE DIFFERENCE IN THE ADDITION TO BE MADE BY AP PLYING THE GROSS PROFIT RATE OF 8% ON THE CONTRACT RECEIPT OF RS.24,34,400 AND THE AMOUNT SHOWN BY THE ASSESSEE AS IN COME FROM THE CONTRACT BUSINESS AND THE SAID DIFFERENCE OF ADDITION SHOULD BE SET OFF AGAINST THE ADDITION OF RS.5 LAKHS TO BE MADE BY REJECTING THE GENUINENESS OF THE GIFTS BY TREATING AS INCOME OF THE ASSESSEE U/S.68 OF THE ACT. WE ORDER ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED IN PART. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 05.04.2010 SD/ - SD/ - ( . . ) (C.D. RAO), ACCOUNTANT MEMBER ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE : 05.04.20 10 ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY. / I.T.A.NO.358/KOL/2010 3 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : MR. JYOTI GHOSH, SHIV MANDIR, P.O.KADAMTALA, DIST.DARJEELING. 2 / THE RESPONDENT - DCIT, CIRCLE 1, SILIGURI. 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY O RDER , / DEPUTY REGISTRAR .