Shri Nandish M.Kankaria, Surat V. The Income tax Officer,Ward-9(3), Surat

ITA 4/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6679 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-05-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 01-01-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G D BALVA
• Keywords: Assessment record

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, D BENCH (BEFORE S/SHRI T.K. SHARMA, JUDICIAL MEMBER AND A.N. PAHUJA, ACCOUNTANT MEMBER) ITA NO.04/AHD/2009 [ASSTT. YEAR : 2005-2006] NANDISH M. KANKARIA KANAK PALACE, B/H. MADHAV BAUG COMPLEX KAPODARA, VARACHHA ROAD SURAT. VS. ITO, WARD-9(3) SURAT. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI TUSHAR P. HEMANI REVENUE BY : SHRI G.D.BALVA O R D E R PER T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL IS AGAINST THE ORDER OF THE CIT(A)-V, SURAT DATED 24.11.2008 F OR A.Y.2005-2006. 2. THE ONLY GROUND RAISED IN THIS APPEAL IS THAT TH E LEARNED CIT(A) HAS ERRED IN ESTIMATING GP RATE AT 2.25%. AT THE TIME OF HEARING BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE PRODUCED A COP Y OF THE DECISION OF THE ITAT D BENCH, AHMEDABAD DATED 29.4.2009 IN IT A NO.541/AHD/2009 AND CO NO.37/AHD/2009. THE LEARNED COUNSEL SUBMITTED THAT IN VIEW OF THE DECISION OF THE TRIBU NAL IN CO NO.37/AHD/2009, THE PRESENT APPEAL OF THE ASSESSEE IS RENDERED INFRUCTOUS. THE RELEVANT FINDINGS IN THE ABOVE DECISION ARE AS UNDER: 6. HAVING HEARD BOTH SIDES, WE HAVE CAREFULLY GONE THROUGH THE IMPUGNED ORDER OF THE AUTHORITIES BELOW(IT IS P ERTINENT TO NOTE THAT IN THE ABSENCE OF VARIOUS DETAILS AS WERE CALL ED BY THE ASSESSING OFFICER, BOOKS RESULT CANNOT BE VERIFIED. IN THE IMPUGNED ORDER, THE LEARNED CIT(A) HELD THE ACTION OF THE RE GARDING INVOCATION THE PROVISIONS OF SECTION 145(39) OF THE ACT. WE FEEL THAT THIS ACTION OF THE LEARNED CIT(A) IS JUSTIFIED LOOKING TO THE FACTS OF THE CASE. ONCE THE HOOKS OF ACCOUNT ARE RE JECTED, THE ITA NO.04/AHD/2009 -2- ASSESSING OFFICER HAS NO OPTION BUT TO ESTIMATE THE ADDITION. BUT SUCH ESTIMATE MOST NOT BE ARBITRARY, VOID, VAGUE AN D FANCIFUL BUT MUST BE LEGAL AND REGULAR. INSTEAD OF APPLY OF GP O F SOME OTHER CASE, THE AO OUGHT TO HAVE APPLIED THE GP RATE BASE D ON PAST ASSESSMENT RECORD OF THE ASSESSEE. IN THE IMMEDIATE LY PRECEDING ASSESSMENT YEAR THE GP DECLARED BY THE ASSESSEE IS 2.66%. BEFORE THE LEARNED CIT(A) THE ASSESSEE HAS EXPLAINED THE R EASONS FOR FALL IN GP AND AFTER CONSIDERING THE SAME, THE LEARNED C 1T(A) ESTIMATED THE GP OF 2.25%. LOOKING TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE GP AS DIRECTED BY TH E LEARNED CIT(A) TO BE APPLIED @2.25% IS IN ORDER. WE, THEREF ORE, UPHOLD THE IMPUGNED ORDER OF THE LEARNED CIT (A) AND DISMI SS THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE. THEREFORE, HE HAS NO OBJECTION, IF THE SAME IS DISM ISSED. 3. IN VIEW OF THE ABOVE, WE HAVE CAREFULLY GONE THR OUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISION IN CO NO.37/ AHD/2007. IN VIEW OF THE SAID DECISION, THE PRESENT APPEAL OF THE ASSESS EE IS RENDERED IN FRUCTOUS AND THEREFORE THE SAME IS DISMISSED. 4. IN RESULT, THE APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN OPEN COURT ON 5 TH MAY, 2011 SD/- SD/- (A.N. PAHUJA) ACCOUNTANT MEMBER (T.K. SHARMA) JUDICIAL MEMBER PLACE : AHMEDABAD DATE : 05-05-2011 C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD