Sh. Amarjit Singh, Phagwara V. The Income-tax Officer, ward - 1, Phagwara

ITA 378/ASR/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 3324 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-08-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-08-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 08-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: Y K SUD
• Keywords: Opportunity of being heard; Additional evidence; Revised return; Set aside
• Section: 44AD

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR (SMC) BEFORE SH. B. R. BASKARAN, ACCOUNTANT MEMBER I.T.A. NO. 378/ASR/2017 A SSESSMENT YEAR: 2009-10 AMARJIT SINGH, VILLAGE FATEHGARH, P.O. PANDORI PHAGWARA [PAN: AXSPS 0238B] VS. I.T.O. WARD-1, PHAGWARA (APPELLANT) (RESPONDENT) APPELLANT BY : SH. Y. K. SUD (C.A.) RESPONDENT BY: SH. CHARAN DASS (D.R.) DATE OF HEARING: 27.08.2019 DATE OF PRONOUNCEMENT: 27.08.2019 ORDER PER B. R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ORDER DATED 10-04-2017 PASSED BY LD CIT(A)-2, JALANDHAR AND IT RELATES TO THE ASSESSMENT YEAR 2009-10. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT (A) IN CONFIRMING THE ASSESSMENT MADE BY THE AO BY ESTIMATING INCOME OF T HE ASSESSEE. 2. THE ASSESSEE IS A CONTRACTOR. HE FILED HIS R ETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION DECLARING GROSS RECEIPTS OF RS.25.29 LAKHS AND DECLARING INCOME U/S 44AD OF THE ACT @ 8% OF GROSS RECEIPTS. THE AO NOT ICED FROM FORM NO.26AS THAT THE GROSS RECEIPTS OF THE ASSESSEE WERE RS.71. 60 LAKHS. WHEN THIS DIFFERENCE WAS POINTED OUT TO THE ASSESSEE, HE FILED A REVISED RETURN OF INCOME ON 24.10.2011 BY PREPARING PROFIT AND LOSS ACCOUNT, WHEREIN THE G ROSS RECEIPTS WERE SHOWN AT ITA NO. 378/ASR/2017 (AY 2009-10) AMARJIT SINGH V. ITO 2 RS.79.83 LAKHS AND NET PROFIT WAS SHOWN AT RS.2.87 LAKHS. SINCE THE REVISED RETURN OF INCOME WAS FILED BELATEDLY, THE AO TREATED THE S AME AS NON-EST AND ACCORDINGLY DID NOT CONSIDER THE SAME. SINCE THE ASSESSEE HAD ESTIMATED INCOME AT 8% OF GROSS RECEIPTS IN ITS ORIGINAL RETURN OF INCOME AND SINCE THERE WAS NO BOOKS OF ACCOUNT TO SUPPORT THE ORIGINAL RETURN OF INCOME, THE AO PROPO SED TO ADOPT THE SAME RATE ON THE ENTIRE TURNOVER. FROM THE PROFIT AND LOSS ACCO UNT FILED ALONG WITH REVISED RETURN OF INCOME, THE AO NOTICED THAT THE TURNOVER OF THE ASSESSEE WAS SHOWN AT RS.79.83 LAKHS. ACCORDINGLY THE AO APPLIED THE RAT E OF 8% TO THE GROSS RECEIPTS AS SHOWN IN THE PROFIT AND LOSS ACCOUNT AND ACCORDI NGLY ESTIMATED THE INCOME OF THE ASSESSEE AT RS.6.39 LAKHS. 3. THE LD CIT(A) ALSO TOOK THE VIEW THAT THE REV ISED RETURN OF INCOME CANNOT BE RECOGNIZED, AS THE SAME HAS BEEN FILED BELATEDLY. BEFORE THE LD CIT(A), THE ASSESSEE PLACED HIS RELIANCE ON THE DECISION RENDER ED BY THE ITAT IN HIS OWN CASE IN AY 2008-09, WHEREIN IDENTICAL ADDITION HAD BEEN MADE BY THE AO. THE ITAT HAD RESTORED THE ISSUE TO THE FILE OF THE AO WITH T HE DIRECTION TO ASSESS THE INCOME ON THE BASIS OF BOOKS OF ACCOUNT. THE LD CIT(A) N OTICED THAT THE ASSESSEE DID NOT FILE REVISED RETURN OF INCOME IN AY 2008-09 AND ACC ORDINGLY HELD THAT THE FACTS ARE DISTINGUISHABLE. ACCORDINGLY HE CONFIRMED THE ADDI TION MADE BY THE AO. 4. I HEARD THE PARTIES AND PERUSED THE RECORD. THE LD A.R SUBMITTED THAT IN THE ASSESSMENT YEAR 2008-09 ALSO, THE ADDITION WAS MADE BY THE AO ON ACCOUNT OF DIFFERENCE IN GROSS RECEIPTS DECLARED BY THE ASSESS EE AND THAT SHOWN IN FORM NO.26AS. EVEN THOUGH THE ASSESSEE DID NOT FILE REV ISED RETURN OF INCOME, YET IT PRODUCED BOOKS OF ACCOUNT BY DECLARING CORRECT AMOU NT OF GROSS RECEIPTS. UNDER THESE SET OF FACTS, THE TRIBUNAL, VIDE ITS ORDER DA TED 08-02-2016 PASSED IN ITA NO.759 (ASR)/2014, RESTORED THE ISSUE TO THE FILE O F THE AO FOR MAKING FRESH ASSESSMENT BY CONSIDERING THE BOOKS OF ACCOUNTS. T HE LD A.R SUBMITTED THAT THE ITA NO. 378/ASR/2017 (AY 2009-10) AMARJIT SINGH V. ITO 3 FACTS ARE IDENTICAL IN THE INSTANT YEAR ALSO AND AC CORDINGLY PRAYED THAT THE AO MAY BE DIRECTED TO MAKE ASSESSMENT DE-NOVA BY DULY CONS IDERING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. 5. ON THE CONTRARY, THE LD D.R SUPPORTED THE OR DER PASSED BY LD CIT(A). 6. I NOTICE THAT THE DIVISION BENCH HAS RESTORE D AN IDENTICAL ISSUE TO THE FILE OF THE ASSESSING OFFICER IN AY 2008-09 FOR MAKING FRESH AS SESSMENT BY DULY CONSIDERING THE BOOKS OF ACCOUNTS OF THE ASSESSEE. IN OUR VIEW , THE DIFFERENCE POINTED BY THE TAX AUTHORITIES, I.E., ABSENCE OF REVISED RETURN OF INCOME, IS MINOR ONE AND DOES NOT AFFECT THE PARITY OF FACTS. SINCE THE BOOKS OF ACC OUNTS HAVE NOT BEEN EXAMINED BY THE TAX AUTHORITIES, THE LD A.R ALSO MOVED A PETITI ON REQUESTING THAT THE BOOKS OF ACCOUNTS MAY BE ADMITTED AS ADDITIONAL EVIDENCES. SINCE THE ISSUE IS COVERED BY THE DECISION RENDERED BY THE DIVISION BENCH IN AY 2 008-09, I ADMIT THE BOOKS OF ACCOUNTS AND ACCORDINGLY, CONSISTENT WITH THE VIEW TAKEN BY THE DIVISION BENCH IN AY 2008-09, SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE ALL THE ISSUES TO THE FILE OF THE AO FOR MAKING FRESH ASSESSMENT BY D ULY CONSIDERING THE BOOKS OF ACCOUNTS. AFTER AFFORDING ADEQUATE OPPORTUNITY OF BEING HEARD, THE AO MAY TAKE APPROPRIATE DECISION IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN CO URT ON AUGUST 27, 2019 SD/- (B. R. BASKARAN) ACCOUNTANT MEMBER DATE: 27.08.2019 /GP/SR. PS. ITA NO. 378/ASR/2017 (AY 2009-10) AMARJIT SINGH V. ITO 4 COPY OF THE ORDER FORWARDED TO: (1) THE APPELLANT: (2) THE RESPONDENT: (3) THE CIT(APPEALS) (4) THE CIT CONCERNED (5) THE SR. DR, I.T.A.T TRUE COPY BY ORDER