Shiv Shankar Bansal, Kurukshetra V. ACIT, Kurukshetra

ITA 365/CHANDI/2012

• Counselvise Citation: 36521514 RSA 2012
• Duration Of Justice: 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 09-07-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 27-03-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER ITA NO. 365/CHD/2012 ASSESSMENT YEAR: 2008-09 SHRI SHIV SHANKAR BANSAL, V ASSTT.CIT, 300, SECTOR 13, KURUKSHETRA, KURUKSHETRA. PAN: AGMPB-7323B (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAMESH GUPTA RESPONDENT : SMT.JAISHREE SHARMA DATE OF HEARING : 09.07.2012 DATE OF PRONOUNCEMENT : 25.07.2012 ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECTE D AGAINST THE ORDER DATED 05.12.2011 PASSED BY THE LD . CIT(A) U/S 250(6) OF THE INCOME-TAX ACT,1961 (IN SHORT 'TH E ACT'). 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUNDS OF APPEAL: 1. THAT THE ASSESSMENT ORDER OF LE ARNED ASSISTANT COMMISSIONER OF INCOME TAX, KURUKSHETRA FOR THE ASSESSMENT YEAR 2008-09 IS ILLEGAL, UNJUSTIFIED AND BAD IN LAW. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ER RED BY CONFIRMING THE IMPUGNED ASSESSMENT ORDER OF THE LD. ASSESSING OFFICER WHO HAVE REJECTED THE BOOKS OF ACC OUNTS AND ASSESSED THE INCOME @12% OF THE GR OSS RECEIPTS IGNORING THE REGULAR BOOKS OF ACCOUNTS AND AUDIT REPO RT. 2 3. THAT THE APPELLANT PRAY TO YOUR GOODSELF TO SET ASI DE THE ILLEGAL, UNJUSTIFIED ORDER OF THE LEARNED ASSESSING OF FICER. 4. THAT THE APPEAL FEE OF RS.10000/- HAS BEEN DEPOSITED IN THE HDFC BANK , THANESAR DT 26.03.2012 CH.NO. 0260014. 5. THAT THE APPELLANT CRAVES FOR PERMISSION TO ADD, DELETE OR AMEND THE GROUNDS OF APPEAL BEFORE OR AT TH E TIME OF HEARING OF THE APPEAL. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLA NT IS A GOVERNMENT CONTRACTOR. IN THE COURSE OF ASSESSMENT PROCEEDINGS, AO FOUND THAT GENUINENESS AND CREDIT- WORTHINESS OF THE PURCHASER, IN FEW CASES, IS NOT V ERIFIABLE, HENCE AO, REJECTED THE BOOKS OF ACCOUNT U/S 145(3) OF THE ACT AND APPLIED THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF PRABHAT KUMAR, CONTRACTOR, SIRSA V C IT, ITA 293 OF 2008. THE AO, ESTIMATED THE INCOME @ 12% OF THE RECEIPTS, FOLLOWING THE SAID DECISION AND ASSESSED THE INCOME AT RS.58,40,300/-. 4. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, LD. 'AR' CONTENDED THAT THE AO, HAS APPLIED THE DECISION IN THE CASE OF PRABHAT KUMAR, CONTRACTOR, SIRSA V CIT (SUPRA), MECHANICALLY WITHOUT APPLICATION OF MIND AND WITHOU T HAVING ANY REGARD TO THE SPECIFIC FACT-SITUATION OF THE PRESENT CASE. SIMILARLY, IT WAS ARGUED THAT THE CIT (A), ALSO UPHELD THE FINDINGS OF THE AO WITHOUT BRINGING COGE NT AND CREDIBLE FACTS ON RECORD. 3 5. LD. 'AR', FURTHER STATED THAT THE BOOKS OF ACCOU NT ARE AUDITED ONE AND ALL THE DETAILS, AS CALLED FOR BY T HE AO, WERE FILED BEFORE HIM AND CIT(A). 6. LD. 'DR' PLACED RELIANCE ON THE ORDER OF THE AO AND CIT(A). 7. WE HAVE CAREFULLY PERUSED THE RIVAL SUBMISSIONS, FACTS OF THE CASE AND THE RELEVANT RECORD. THE FINDINGS O F THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V PRAB HAT KUMAR (2010) 323 ITR 675 (P&H) ARE BASED ON TYPICAL FACT- SITUATION OF THE CASE. IN THIS CASE, IT WAS FOUND THAT THERE WERE UN-VERIFIABLE WAGES, WHICH MAY CALL FOR ADDITI ON TO INCOME, BUT NOT TO THE EXTENT, ASSESSED BY THE CIT( A). ACCORDINGLY, THE NET PROFIT RATE, ON THE BASIS OF B EST JUDGEMENT ASSESSMENT, IN SUCH A GIVEN SITUATION WOU LD BE A QUESTION OF FACT, UNLESS SUCH ASSESSMENT WAS SHOWN TO BE ARBITRARY OR PERVERSE. THEREFORE, ASSESSMENT OF 12 % OF NET PROFIT RATE OF CONTRACT RECEIPTS, WAS NOT SHOWN TO BE ARBITRARY OR PERVERSE AND HENCE, DECISION WAS RENDE RED BY THE HON'BLE JURISDICTIONAL HIGH COURT. THE FACT-SI TUATION OF THE PRESENT CASE IS DIFFERENT AND DISTINGUISHABLE. IN THIS CASE, THE BOOKS OF ACCOUNT WERE AUDITED AND NECESSA RY DETAILS, AS CALLED FOR BY THE REVENUE AUTHORITIES, WERE FILED BY THE ASSESSEE. THE EXPLANATION GIVEN BY THE ASSE SSEE, BEFORE CIT(A) THAT SUPPLIERS DID NOT MAINTAIN THE B OOKS OF ACCOUNT, AND HENCE NECESSARY CONFIRMATORY LETTERS W ERE SUBMITTED BY SUCH SUPPLIERS, AFTER OBTAINING THE SA ME FROM OUR COMPUTERS, ON THE BOOKS OF ACCOUNT. THE AO HAS FAILED 4 TO FOUND ANY INFIRMITY IN SUCH CONFIRMATIONS AND TH E SAME CANNOT BE REJECTED, MERELY ON SURMISES AND CONJECTU RES, WITHOUT BRINGING ANY MATERIAL ON RECORD. 8. HAVING REGARD TO THE ENTIRETY OF THE FACT-SITUAT ION AND TO MEET THE ENDS OF JUSTICE, WE DEEM IT FIT TO ESTI MATE THE INCOME OF THE ASSESSEE AT 6% OF THE NET PROFIT. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 25 TH JULY,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH