AFTAB CONSTRUCTION, MUMBAI V. ADDL CIT 24(1), MUMBAI

ITA 3614/MUM/2009

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48422 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 03-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: B V JHAVERI
• Keywords: Opportunity of being heard; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI BEFORE SHRIR.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NO.3614/MUM/2009 : ASST.YEAR 2005-2006 M/S.AFTAB CONSTRUCTION B-14/3, VAISHALI NAGAR JOGESHWARI WEST MUMBAI 400 102. PAN :AAAFA2080J. VS. THE ADDL.COMMISIONER OF INCOME-TAX RANGE 24(1) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.V.JHAVERI RESPONDENT BY : SHRI D.SONGATE O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE CIT(A) ON 08.04.2009 IN RELATION TO ASSESSMENT YEAR 2005-2006 . 2. REVISED GROUNDS HAVE BEEN FILED BY THE ASSESSEE AND THE ONLY ISSUE RAISED IN THIS APPEAL IS AGAINST THE CONFIRMATION OF ADDITION OF RS.11,05,090 ON ACCOUNT OF ESTIMATED GROSS PROFIT. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE ASSESSEE SHOWED TOTAL CONTRACT RECEIPTS OF RS.14.67 CRORES O N WHICH GROSS PROFIT WAS DECLARED AT RS.3.12 CRORES THEREBY GIVING G.P AT 21.25% AS AGAINST 21.72% SHOWN IN THE PRECEDING YEAR ON THE TURNOVER OF RS.1 3.06 CRORES. BOOKS OF ACCOUNT WERE PRODUCED FOR VERIFICATION BEFORE THE ASSESSING OFFICER, WHO OBSERVED CERTAIN DISCREPANCIES, AS HAVE BEEN SET OUT IN THE LAST PAR A OF PAGE 1 OF THE ASSESSMENT ORDER. HE, THEREFORE, ESTIMATED RATE OF G.P. AT 22% ON TOTAL TURNOVER OF RS.14.68 CRORES AND MADE ADDITION OF RS.11,05,090. NO RELIEF WAS ALLOWED IN THE FIRST APPEAL. 3. AT THE VERY OUTSET THE LEARNED COUNSEL FOR THE A SSESSEE CONTENDED THAT ALL THE BOOKS OF ACCOUNT WERE PLACED BEFORE THE ASSESSING O FFICER. REFERRING TO CERTAIN DISCREPANCIES AS NOTED BY THE A.O. IN THE ASSESSMEN T ORDER, THE LEARNED A.R. ITA NO.3614/MUM/2009 M/S.AFTAB CONSTRUCTION. 2 CONTENDED, THAT THE RELEVANT MATERIAL WAS NOT CALL ED FOR BY THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS ON THE BASIS OF WHICH HE HAS MADE ADDITION. AN ADDITIONAL PAPER BOOK CONSISTING OF 19 6 PAGES WAS FILED. IT WAS PRAYED THAT THE ADDITIONAL EVIDENCE IN THE FORM OF LEDGER ACCOUNT OF WAGES, LIST OF INVOICES IN RESPECT OF VARIOUS PARTIES ETC. BE ADMITTED. NO SERIOUS OBJECTION WAS RAISED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. 4. IN OUR CONSIDERED OPINION, THE ENDS OF JU STICE WOULD MEET ADEQUATELY IF THE IMPUGNED ORDER ON THIS ISSUE IS SET ASIDE AND THE M ATTER IS RESTORED TO THE FILE OF A.O. FOR DECIDING THE QUESTION OF GP ADDITION AFRES H AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. WE ORDER ACCORDINGLY. NEEDLESS TO SAY THE ASSESSEE WILL BE AT LIBERTY TO LEAD ANY EVIDENCE IN ITS FAVOUR BEFORE THE A.O. 5. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ORDER PRONOUNCED ON THIS 13 TH DAY OF APRIL, 2011 . SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 13 TH APRIL, 2011. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - XXIV MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. ITA NO.3614/MUM/2009 M/S.AFTAB CONSTRUCTION. 3 TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.